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Session Summary: Supreme Court and Legislative Update (Individual Rights)

Submitted by Barry McDonald:

The panel moderator, Prof. Eang Ngov (Barry), introduced the panelists—Professors Arnold Loewy (Texas Tech), Jennifer Kinsley (Northern Kentucky), and Barry McDonald (Pepperdine)—and explained that the initial individual rights focus of the panel would be expanded to include a discussion of key criminal procedure and structure cases given the relatively low number of major individual rights cases decided during the October 2018 Term.

Prof. Loewy, who graciously agreed to serve as a last-minute substitute speaker on the panel, began the review by arguing that the 2018-19 Term was characterized by the “expected conservative revolution that wasn’t.”  He pointed especially to the fact that Justice Gorsuch appears to be voting in a more centrist-liberal pattern than many had expected, allying with the liberal members of the Court in a number of significant cases.  Prof. Loewy then did a brief review of a number of the more notable criminal procedure cases from the Term, including the 4th Amendment decision in Mitchell v. Wisconsin and the double jeopardy decision in Gamble v. U.S.

Prof. McDonald spoke next, arguing that the Term was characterized by three key themes: the weakening of stare decisis, the reigning in of the modern administrative state, and fault lines beginning to emerge in originalism as a purportedly non-ideological method of constitutional interpretation.  He then reviewed a number of the more important cases he believed were illustrative of some of these themes, including Gundy v. U.S. and Dept. of Commerce v. New York.  Prof. McDonald also discussed the Rucho v. Common Cause decision on political gerrymandering.

Last, but certainly not least, Prof. Kinsley reviewed some of the Term’s major individual rights decisions apart from the political gerrymandering decisions.  Starting with Iancu v. Brunetti, she discussed, among other things, the lack of analysis in Justice Kagan’s decision regarding the type of speech regulation at issue in the case and its relationship to current free speech doctrine.  Prof. Kinsley then reviewed the Court’s takings decision in Knick v. Township of Scott, discussing the warring views of the conservative and liberal justices on the application of stare decisis principles to that case.  Finally, she discussed the decision in American Legion v. American Humanist Ass’n and its impact on the Court’s Establishment Clause jurisprudence.

Throughout the panel discussion, Prof. Ngov kept the audience engaged and interested by fielding their questions and comments about particular decisions.

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