Supreme Court

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Essay
Volume 92.7
Legal Realignment
Richard M. Re
Professor, Harvard Law School.

I am grateful to many thoughtful commentators, including workshop participants at Stanford University, the University of Virginia, Wayne State University, Harvard University, and Boston College, as well as attendees at a presentation at Boston University and a panel at the AALS annual conference. This essay borrows some text and ideas from my keynote address at the 2024 National Conference of Constitutional Law Scholars. See generally Richard M. Re, The One Big Question (Feb. 26, 2024) (Nat’l Conf. of Const. L. Scholars Keynote Address) (available on SSRN). Many thanks to the organizers and attendees at that event. Finally, I am indebted to the editors of this journal.

The widely understood alignment between political ideology and legal methodology—conservativism and constraint versus liberalism and discretion—explains judicial behavior with diminishing accuracy. In this Essay, Richard M. Re describes a "legal realignment" comprising moves toward conservative discretion and liberal constraint at the U.S. Supreme Court. The Essay develops a model of ideological change at the Court by describing the tendency for governing coalitions and opposition parties to embrace discretion and constraint, respectively. The Essay continues by detailing the mechanisms through which individuals and generations of legal thinkers undergo ideological shifts before concluding with what the model portends for the U.S. judiciary.

Jurisprudence
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Article
Volume 92.5
Constitutional Rights as Protected Reasons
Stephanie Hall Barclay
Professor of Law at Georgetown University Law Center and Faculty Co-Director of the Georgetown Center for the Constitution.

For very helpful comments, conversations, and encouragement on this draft and earlier versions of this project, the author thanks Joel Alicea, Howard Anglin, Kristina Arriaga, Randy Barnett, William Baude, Rachel Bayefsky, Joseph Blocher, Samuel Bray, Christian Burset, Jud Campbell, Louis Capozzi, Piero Ríos Carrillo, Conor Casey, Nathan Chapman, Aimee Clesi, Nicholas Cole, Steve Collis, Caroline Mala Corbin, Katherine Mims Crocker, Marc DeGirolami, Michelle Dempsey, Alma Diamond, Hasan Dindjer, Richard Ekins, Timothy Endicott, David Enoch, Bridget Fahey, Richard Fallon, John Finnis, Frederick Gedicks, Nazila Ghanea, Sherif Girgis, Raphaël Grenier-Benoit, Simona Grossi, Jeremy Gunn, John Harrison, Michael Helfand, Richard Helmholz, Don Herzog, Steven Heyman, Kristin Hickman, Jessie Hill, Heidi Hurd, Michael Kang, Paul Kerry, Andrew Koppelman, Konrad Ksiazek, Genevieve Lakier, Lia Lawton, Douglas Laycock, Robert Leider, Tyler Lindley, Christopher Lund, Elinor Mason, Michael McConnell, Stefan McDaniel, Bradley Miller, Darrell Miller, Paul Miller, Robert Miller, Christina Mulligan, Jim Oleske, Filipa Paes, James Phillips, Richard Pildes, Jeffrey Pojanowski, Zachary Price, Haley Proctor, Eric Rassbach, Richard M. Re, Bradley Rebeiro, Veronica Rodriguez-Blanco, Zalman Rothschild, Angelo Ryu, Stephen Sachs, Josep Tirapu Sanuy, Micah Schwartzman, Amanda Shanor, Reva Siegel, Geoffrey Sigalet, Lawrence Solum, Anna Stelle, John Stinneford, Mark Storslee, Michael David Thomas, Rebecca Tushnet, Francisco Urbina, Pía Chible Villadangos, Eugene Volokh, Derek Webb, Grégoire Webber, Lael Weinberger, Andrew Willinger, John Witte, Kara Woodbury-Smith, Ilan Wurman, Paul Yowell, Mary Ziegler, the participants at the Women in Legal Philosophy Conference at Villanova Law School, the First Annual UChicago Constitutional Law Conference, the Oxford Public Law Discussion Group, the Oxford University Bonavero Institute of Human Rights Works-in-Progress session, Federalist Society Junior Scholar Panel at Association of American Law Schools, the Salmon P. Chase Colloquium, the Georgetown Law School Works-in-Progress session, the Minnesota Law School Works-in-Progress session, the Pepperdine Law School Nootbaar Fellows workshop, the Northwestern Law School Works-in-Progress session, the Northwestern Law School Public Law Colloquium, and the Stanford Law School Constitution Center Works-in-Progress workshop. For excellent research assistance, the author thanks Nat Deacon, Chris Ostertag, Jacob Feiser, Mathias Valenta, Anneliese Ostrom, and Athanasius Sirilla.

Professor Stephanie Hall Barclay proposes and defends a new theoretical model of constitutional rights. While virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights and generally hold out the judiciary as the primary guardian of these rights, this Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. It proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.

Constitutional Law
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Comment
Volume 91.7
Guns and the Right to Exclude: Saving Guns-at-Work Laws from Cedar Point's Per Se Takings Rule
Tom Malaga Kadie
B.A. 2019, University of California, Berkeley; J.D. Candidate 2025, The University of Chicago Law School.

I would like to thank Professor Lior Strahilevitz and the editors and staff of the University of Chicago Law Review for their thoughtful advice and insight.

This Comment uses the case study of guns-at-work laws to understand Cedar Point v. Hassid’s per se takings rule as well as its exceptions. Enacted by about half of the States, guns-at-work laws protect the right of a business’s employees, customers, and invitees to store firearms in private vehicles even if those private vehicles are on company property (i.e. parking lots/parking structures). While these laws have long survived Takings Clause challenges, Cedar Point revived the viability of such challenges. Using the example of guns-at-work laws, the Comment seeks both to understand the scope of Cedar Point’s per se takings rule and to clarify and develop the open-to-the-public and long-standing restrictions on property rights exceptions to it.

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