Two Views – Boston College Law School Magazine


Now with a strengthened conservative majority, the Supreme Court is set this year to decide several major legal battles brewing in the lower courts. The Federalist Society of BC Law recently hosted Josh Blackman, professor at the South Texas School of Law in Houston, and Kent Greenfield of BC Law, professor of constitutional law, to discuss the upcoming file and what could be at stake when the nine judges hear arguments.

Notably, at the end of the last term, the Supreme Court overturned the 30-year precedent in Roe vs. Wade– a decision applauded by many members of the Federalist Society nationwide. With six of the Supreme Court justices appointed by Republican presidents, Greenfield says the Court is more aggressive than ever. Aggressive on abortion, religion, administrative state and racial discrimination.

Another notable change, he said, is this court’s willingness to manipulate or make exceptions to what have long been considered procedural guidelines. “He’s taken cases that normally wouldn’t have been taken because they weren’t really procedurally correct,” Greenfield observed, noting the court’s manipulation of facts in several decisions last quarter.

Greenfield thinks the central issue of this term will be race, and he is watching closely Merrill v. Milligana case in Alabama determining whether the state’s new congressional card violates voting rights law.

“In a way, where we are is the success of a movement of conservative lawyers, law professors, students, lawyers, judges over a generation,” did he declare. “But if the overall goal is to convince this generation of law students of the benefits or values ​​of originalism, textualism and judicial restraint, this generation of law students will simply not be convinced by it. .”

Blackman says he thinks things differently. He explained that he struggled to teach substantive due process in class. Blackman posited that for many years, liberal members of the court created legislation devoid of judicial doctrine.

“In other words, the other side had their turn for several decades and had a lot of success and the conservatives kind of put their hands up. And now I think the conservatives are doing pretty much the same thing said Blackman.

It is healthy that democracy has shifted from the courts to the legislature for certain decisions, he argued. Blackman was confident that once the country begins legislating abortion, Americans will have “thoughts” about enacting absolute abortion bans.

“If you want change, you can’t go to court. In fact, stay away from the courts, go to the elected branches. Go to your city council, go to your city council, go to your state legislatures. It’s not a bad lesson. It’s hard. But I think we see it,” Blackman said.

Greenfield pushed against Blackman’s positivity on the abortion issue left to voters. “The problem with that, of course, is that when we’re talking about rights, we shouldn’t have to put rights to a vote. More conservative citizens think it’s true for gun rights and religious rights and the left think it’s true for abortion,” he said.

“The question,” Greenfield noted, “is whether the court overplayed its hand.”

British Columbia law professor Kent Greenfield has expressed concern that the Tory court is threatening rights.
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