Author: Brannon Denning


Initial Thoughts on the ACA Litigation

I wanted to second Scott in thanking Gerard for inviting me back to Concurring Opinions to blog about the ACA litigation. (Actually, I should thank Scott as well, who approached me about doing this. Thanks, Scott!)

In the interest of full disclosure, I should say that I am someone who, despite opposing the ACA on policy grounds, remains unconvinced that the case for its unconstitutionality is evident. That said, I also maintain—to the frustration of my constitutional law students—that the case against its unconstitutionality is hardly frivolous. Instead, I think that there are, as there so often are in constitutional law, lines of doctrine that point in different directions. Depending how one frames the important question, one can draw on a line of doctrine that is more helpful, enabling one to distinguish the cases comprising the other, less helpful, line of doctrine.

Part of the difficulty with the Court’s Commerce Clause cases, I think, lies in the Lopez majority’s willingness to strike down the Gun Free School Zones Act without overruling a single precedent. Chief Justice Rehnquist’s domestication of Wickard v. Filburn—his distinguishing Wickard from the GFSZA by noting that the latter regulated local activity in the service of a national regulatory scheme whose efficacy would be undermined were Congress unable to reach that activity—may have inspired Congress to think big in drafting the ACA, in order to be able to claim the individual mandate met that safe harbor. The chickens came home to roost somewhat in Raich, as Justices Scalia and Kennedy peeled off of the Lopez/Morrison majority to make a 6-3 majority in favor of applying the CSA to medical marijuana.

The other shoe to drop, after Raich, I think, was the Court’s decision in Comstock v. United States. I vividly recall reading that decision when it came out in 2010, after the bitter political fight over the ACA, and thinking, “Huh. Well, after that, the decision upholding the individual mandate practically writes itself.” (Though Ilya Somin has made a strong case why Comstock should not bolster the constitutional case for the individual mandate.) It has been interesting to see the Government’s argument evolve to lead with Comstock and the Necessary and Proper Clause at the fore.

So what’s my prediction regarding the Court’s ruling? I’ll go out on a limb and predict that the Court will uphold the individual mandate by a ruling of at least 6-3. I can only count 1, maybe 2 solid votes against (Scalia and Thomas); and four votes for (Ginsburg, Breyer, Sotomayor, and Kagan). The Chief Justice acquiesced in Justice Breyer’s Comstock opinion without filing a concurrence, as Justice Kennedy did in Raich. Justice Alito, too, joined Comstock. Though these things are notoriously tricky, I’ll be interested to see whether the oral argument on the individual mandate causes me to doubt my early prediction.  (I should disclose that I am terrible at SCOTUS predictions. I remember standing around a family Thanksgiving in 2000 patiently explaining why the Court would never intervene in the presidential election, and articulating what I thought was the slam dunk political question argument against judicial involvement, assuming the Court did grant cert.)


Book Review: Parties, Politics, and the Constitution: A Review of Tushnet’s Why the Constitution Matters

Why the Constitution Matters. By Mark Tushnet. Yale University Press. 2010.  Pp. 187. $25.00.

In his latest book Why the Constitution Matters, Mark Tushnet (William Nelson Cromwell Professor of Law, Harvard University) argues that the Constitution matters not because it enshrines certain “fundamental rights” enforced by the Supreme Court against majoritarian interference, but rather because the document creates political institutions that shape both the content of constitutional law (including fundamental rights) and how those rights get enforced.  As he writes in the Introduction, “the Constitution matters because political parties matter, and the Constitution has some influence on the way parties operate” (p. 13).  Hermetically separating law and politics is not only impossible, Tushnet argues, it is normatively undesirable.

Much of Chapter 1 discusses the ways that our Constitution’s structure made possible, then entrenched, the contemporary two-party system.  Separation of powers, for example, created the possibility of divided government.  Because structural features like separation of powers and federalism impact both party organization and whether government is divided, both are ultimately important to “constitutional law,” broadly denominated.  (There is an irony, of course, in this: the Constitution contains no mention of parties and the Framers in fact tried to forestall their creation through these very structural mechanisms.)  As time went by, Tushnet argues, highly localized parties that were really coalitions began to develop more or less coherent ideologies.  For presidents, this coherence means that unified government offers the President tremendous opportunity to achieve policy goals, while divided government (and term limits) can frustrate presidential ambitions.  This is a relatively new phenomenon; historically, when parties were coalitions, we usually had “essentially divided government,” with the President having to work with ideologically-compatible members of both parties (p. 40).

Tushnet is largely silent about constitutional law (as opposed to constitutional structure) until the end of Chapter 1, when he speculates that the Supreme Court’s application of the First Amendment to campaign finance reforms might have had some meaningful effect on these political developments.  Ultimately, he’s skeptical.  In the absence of the Court’s decisions, he argues, we’d probably have ended up at about the same place.  As he argues in Chapter 2, the Court “interprets the Constitution the way it does because it too is both a part and the result of our political system” (p. 91).  He continues: “Put politicians in charge of campaign finance and they’ll enact laws that reinforce the existing structure of politics.  Put judges in charge and they’ll interpret the Constitution to—aha!—reinforce the existing structure of politics” (p. 92).

Thus, the message of Tushnet’s first chapter is that the Constitution matters because it creates a governmental structure that has incubated a particular two-party political culture.  This political culture, in turn, influences the Constitution’s interpretation, not least because the interpreter-in-chief of that Constitution—the Supreme Court—“is both a part and the result of our political system. . . . [W]e can expect the Court’s interpretations to reinforce the constitutional positions most consistent with those of the then-dominant political regime” (p. 91).

That last suggestion—that the Court is both a political and a legal institution—is at odds with our national mythology that surrounds the Court.  It will probably strike a number of readers as downright heretical.  But Tushnet presses on in Chapter 2, arguing that the Court’s politics have patterns “connected to the ideas about regimes, presidential leadership, political parties, and divided or unified government” that “help make sense . . . of the Court’s history” (p. 94).

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Book Review: Speaking Up


Book Review

“Hey! Teachers! Leave Them Kids Alone”

Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre.  Cambridge: Harvard Univ. Press. 2009.  Pp. 289.  $29.95.

Reviewed by Brannon P. Denning*

U.S. public schools regularly find themselves sued by students alleging violations of their First Amendment rights.  The scope of public school students’ free speech rights is notoriously unclear, and the proliferation of technologies that both make communication possible as well as blur the on-campus/off-campus line, moreover, make these cases increasingly difficult.  Courts and administrators often struggle to balance students’ speech rights with the need to maintain order and safety in public schools.

 University of Georgia law professor Anne Proffitt Dupre’s new book, Speaking Up: The Unintended Costs of Free Speech in Public Schools, tells the story of how the Court got us to this point.  The chapters of Dupre’s book take the reader on a guided tour of the Court’s student speech jurisprudence.  There is a chapter on each case in the Court’s original school speech trilogy: Tinker v. Des Moines School District (pp. 11-38), Bethel School District v. Fraser (pp. 39-73), and Hazelwood School District v. Kuhlmeier (pp. 74-106).  The latest case, Morse v. Frederick also gets a chapter at the end (pp. 230-258).  In addition, there are chapters on Pico v. Island Trees Union Free School District, which concerned the removal of books from school libraries (pp. 107-137), a long chapter on religious speech in schools (pp. 138-203), and one on teacher speech rights (pp. 204-229).  Read More



I wanted to thank Dan, Dave, and the rest of the CO gang for inviting me to guest blog. As usual, my reach exceeded my grasp in terms of things that I wanted to post, but I especially wanted to thank all those who commented on the post about what you might want to see in a guide for law faculty candidates. I wish all of my fellow bloggers and readers a Happy Fourth of July and a great rest of the summer.


Fallon & Meltzer on the Detainee Cases

I wanted to highlight this article by Richard Fallon and Daniel Meltzer, which systematically goes through all of the issues related to habeas corpus, due process, and the detainee cases. It is a marvelous article: clear, brief (considering the issues), and thorough. Further, while the authors have definite opinions about the correct outcomes of various issues, they acknowledge that the issues are difficult and that reasonable minds can differ. This is a welcome change from some scholarship (on this topic in particular) that assumes those who disagree are fools or knaves. If you read only one article about the detainees, read this one.


Texting and Talking: The New Smoking?

It is a commonplace to note the degree to which technology enables us to stay “connected” to family, work, etc. What I find fascinating is not only how common it is to see folks talking and texting, but how many people instinctively reach for their phone and begin talking, texting, or both when faced with any sort of enforced idleness. It reminds me a bit of Brian Doyle-Murray’s character in Christmas Vacation when he doesn’t want Clark Griswold in his office anymore. He picks up the phone and growls, “Get me somebody. Anybody.”

I think cell phones and Blackberrys have replaced cigarettes as our response to these sorts of unanticipated waits. One sign that talking and texting may be the new smoking: signs asking folks to turn off their cell phones before entering places like doctor’s offices.


Civil Rights Trials as Transitional Justice

Yesterday’s conviction of a former Klan member in the previously unsolved killings of two teens in the 1960s is the latest in what seems to be a series of attempts to crack cold cases from the civil rights era before even more witnesses and suspects die off. My colleague at Cumberland, Don Cochran, was part of the prosecution team that secured the conviction of Bobby Frank Cherry, who was involved in the bombing of the Sixteenth Street Baptist Church here in Birmingham.

Don has written a wonderful essay about the trial, and his role in it, entitled Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church, 12 Mich. J. Race & L. 1 (2006) (I can’t find a copy online). In the conclusion, Don posits that the Cherry trial, and civil rights trials in general can be understood as a form of “transitional justice,” a term taken from international law describing the processes (trials, lustration, truth commisssions, etc.) by which regimes transitioning from authoritarian to democratic governments attempt to expose, and come to terms with, the past. I think that the concept of transitional justice is a fascinating lens through which to view these trials, and I think it can help furnish an answer to the question Don says he frequently gets: “What is the use of trying and convicting these old men decades after these crimes have been committed?”


So You Wanna Be a Law Professor, Part II

First, thanks so much to everyone who made comments to my previous post, which asked for things you’d like to see in a book about the faculty hiring process. I’m knee-deep in summer school, so while I can’t respond individually to each comment, please know that I appreciate each one and all will be helpful as we continue writing the book. I am pleased to see that we have, so far, anticipated many of the topics that you wanted to see covered.

Many comments asked what the chances are for someone who attended a non-elite law school to break into the teaching market. Since that seemed to be a common theme, I thought I’d offer “Becoming a Law Professor: The Nutshell.”

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So You Wanna Be a Law Professor?

Okay, I’m back. [You were gone?–ed] I had to run home for the weekend to dogsit, while the rest of my family was out of town. One of my projects this summer is to keep working on a book that my colleague, Marcia McCormick, and I are writing together: a guide for those who want to be law professors. Our intent is to write a soup-to-nuts guide, covering what law professors do, describing the job search process, the call-back, negotiating the offer, down to what to do if you don’t succeed at first.

We have several chapters written, but I thought I’d take this month’s opportunity to ask readers who are interested in becoming law professors and law professors who care to give the matter some thought, “What would you like to see in a book like this?” What information do you have now that you wish you had when you starting thinking about jumping into this business? Feel free to leave suggestions in the comments, or e-mail me directly bpdennin at


Waiting for Harry Potter?

Ever since he was a baby, I have read to my son as part of his bedtime routine. One of the great parts of his getting older has been being able to read longer chapter books, like The Hobbit, the Wind in the Willows, etc. Last year we read the entire Potter opus through the Half-Blood Prince. We are both eager awaiting the Deathly Hallows. If you, too, are waiting for your HP fix, you might be interested in Brian Jaques’ Redwall. If you’re not familiar with the book, or the series, Redwall is about a young mouse, Matthias, who is a novice at Redwall Abbey who is forced to undertake an epic quest for the sword of the Abbey’s ancient hero, Martin the Warrior, in defense of his Abbey and the creatures who live there against Cluny the Scourge, an evil rat warlord and his army, who have laid siege to it. The writing is very evocative and the characters most entertaining. In particular my son thought that a character named Basil Stag Hare—a loveable old British sergeant-major type (but a hare)—was hysterical. There is a fare amount of bloodshed and some characters that you come to love are killed off, so if you have sensitive children you might want to read it through yourself first. We enjoyed it so much that we’ve already begun the third book (the second, Mossflower, is a prequel to Redwall), which features Matthias’s son, Mattemeo.