For the better part of a decade, debate has raged over whether Congress can constitutionally restrict, or at least influence, the ability of the National Endowment for the Arts (“NEA”) to award grants to artists and institutions for the creation or display of art work that a significant segment of the public would consider highly offensive. In the October 1997 Term, the Supreme Court, by an 8-1 margin in NEA…
Part I focuses on the provisions implicated when Congress eliminates or modifies the regulatory consent decrees of federal courts—the separation of powers guarantee, the Takings Clause, the Contracts Clause, and the Due Process Clause. Part II examines the Supremacy Clause and Tenth Amendment issues that potentially circumscribe congressional efforts to displace the decrees of state courts. Part III discusses the Equal Protection and Bill of Attainder Clause concerns that define…
During Holmes’ tenure on the Court, 1902-32, opinions were presented unanimously 91% of the time. In the October 1951 Term, when the Court decided Youngstown, only 22% of the Court’s opinions were presented unanimously. The 1951 Term was not an aberration. The Vinson Court averaged a unanimity rate of only 27%. This statistical difference between the Holmes and Vinson eras is part of a larger history of changes in the…
Justice William J. Brennan, Jr. served on the United States Supreme Court for more than a third of a century, from 1956 to 1990, long after President Eisenhower, who foolishly appointed him to gain a temporary political advantage, was gone from office and had passed away. Justice Brennan, previously an obscure state court judge in New Jersey, made a lot of his lucky appointment, so much so that he made…