Article

NEA v. Finley: A Decision in Search of a Rationale

Lackland H.,Jr. Bloom
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…
Article

Retaking the Field: The Constitutional Constraints on Federal Legislation That Displaces Consent Decrees

Brian M. Hoffstadt
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…
Article

The Opinion Delivery Practices of the United States Supreme Court 1790-1945

John P. Kelsh
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…
Essay

The Legacy of Justice Brennan: Constitutionalization of the Left-Liberal Political Agenda

Lino A. Graglia
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…