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Expert Commentary Expert Profiles
 
"Of all the judges President Trump could have nominated, Gorsuch seems to me as good as anybody, liberal or conservative, who would stand up to unlawful actions by the Trump administration, if need be."–The Christian Science Monitor, Feb.10, 2017
Daniel Epps, Associate Professor of Law
Email epps@wustl.edu



 
"The implicit threat was that he will use whatever authority he has to retaliate against Nordstrom, or anyone who crosses his interest."–Deutsche Welle, Feb. 9, 2017
Kathleen Clark, Professor of Law
Email kathleen@wustl.edu



 
Re: The importance of the First Amendment
“A free press, street protests and activist students. This is what the First Amendment was designed to do. It’s not just designed to keep the government from doing bad things. It’s designed to keep the government from doing bad things for a reason. And the reason is so we have a vital, politically informative, diverse, contentious and ultimately productive public discourse.”
Greg Magarian, Professor of Law
Email gpmagarian@wustl.edu



 
Re: Trump’s Nomination of Judge Gorsuch
"But a second Trump appointment is another matter. We could see dramatic legal change, with the recent affirmative action and abortion cases on the chopping block."–New York Times, Feb.1, 2017
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor
Email epstein@wustl.edu



 
Re: President Trump’s Supreme Court nominee
“In my view, refusing to even consider President Barack Obama’s highly qualified nominee, Judge Merrick Garland, was an unprecedented act of partisan obstruction.”
Daniel Epps, Associate Professor of Law
Email epps@wustl.edu



 
Re: Obama administration and the Supreme Court
"Scholars have long attributed the success of the executive branch to the quality of its lawyers. But the emergence of a specialized Supreme Court bar full of former solicitors general and other government lawyers may be offsetting the president’s traditional advantage."–New York Times, Jan. 23, 2017
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor
Email epstein@wustl.edu



 
Re: First Mondays
In this episode of First Mondays, Dan Epps and Ian Samuel interview New York Times Supreme Court Reporter Adam Liptak, recap the latest arguments, and discuss the problem of lawyers who won’t give up their arguments to more experienced counsel.
Daniel Epps, Associate Professor of Law
Email epps@wustl.edu



 
Re: Last Call for SCOTUS Grants
"At the very least, the four liberal Justices will be pretty gun shy now and for the foreseeable future on granting cases, given the expectation that President-elect Donald Trump will nominate a conservative to fill the vacancy." –Bloomberg BNA, Jan. 12, 2017
Daniel Epps, Associate Professor of Law
Email epps@wustl.edu



 
Re: The law and the politics of justice
"It’s actually hard to know where Sotomayor and Kagan fall. Sotomayor and Kagan appear to be disloyal, voting in favor of Obama only around 50 percent of the time when the average is close to 66 percent." –Huffington Post, Jan. 3, 2017
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor
Email epstein@wustl.edu



 
Re: First Mondays
In this inaugural episode of First Mondays, Ian Samuel and Dan Epps raise the curtain on the new term, discussing the most exciting grants and previewing the most important cases set for argument on the Court’s October calendar. —First Mondays podcast, Oct. 3, 2016
Daniel Epps, Associate Professor of Law
Email epps@wustl.edu



 
Re: Role of Chief Justice
"Chief Justice Roberts is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome."–New York Times, Sept. 25, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor
Email epstein@wustl.edu



 
Re: Religious Objections Law in Mississippi
"The ruling is significant in really protecting our First Amendment. I think it matters in that way because we saw a lot of state legislatures discussing adoption of bills just like Mississippi's or some variation upon it." –Associated Press, July 1, 2016
Elizabeth Sepper, Associate Professor
Email esepper@wustl.edu








Commentary from Past Terms


Re: FRIEDRICHS V. CALIFORNIA TEACHERS ASSOCIATION (2015)
"The 4-4 decision, and the more recent denial of a rehearing, leaves intact the delicate balance struck by pre-existing law and avoids a significant ‘free rider’ problem."
Marion Crain, Wiley B. Rutledge Professor of Law and Vice Provost of the University
View Case Detail for FRIEDRICHS V. CALIFORNIA TEACHERS ASSOCIATION




Re: WHOLE WOMAN'S HEALTH v. HELLERSTEDT (2015)
"Justice Stephen Breyer especially noted the scientific evidence backing that the regulations had no health benefits for women, calling it a win for evidence-based medicine." –Joplin Globe, June 30, 2016
Elizabeth Sepper, Associate Professor
View Case Detail for WHOLE WOMAN'S HEALTH v. HELLERSTEDT




Re: WHOLE WOMAN'S HEALTH v. HELLERSTEDT (2015)
"A critical part of today’s analysis showed that Texas, which tried to justify its restrictions as health measures, had imposed significant obstacles to abortion access without evidence that health benefits were gained or were even needed."
Susan Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law
View Case Detail for WHOLE WOMAN'S HEALTH v. HELLERSTEDT




Re: Following the Death of Associate Justice Antonin Scalia
"Without Scalia, it’s still the Kennedy court, but Kagan and Breyer had a very good term. Both were in the majority in divided cases over 80 percent of the time, and the Democratic side of the court yet again won victories in some of the term’s biggest cases." –New York Times, June 28, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Obama's Immigration Reforms
"I certainly think the Supreme Court decision makes it more difficult for Hillary to take some of the steps, if she were to take them. It’s now going to be very hard for Obama or his successor to expand on what they’ve already done. It’s a tough row to hoe." –Politico, June 25, 2016
Stephen H. Legomsky, John S. Lehmann University Professor Emeritus




Re: UNITED STATES v. TEXAS (2015)
"The court’s decision allows two exceptionally conservative judges who sit on one regional court, of the plaintiffs’ choosing, to substitute their personal policy preferences for those of a democratically elected president."
Stephen H. Legomsky, John S. Lehmann University Professor Emeritus
View Case Detail for UNITED STATES v. TEXAS




Re: SPOKEO, INC. v. ROBINS (2015)
"The surprising decision actually gives Congress a green light to allow consumers to sue corporations or online sites that violate their privacy rights or consumer protection laws."
Neil Richards, Professor of Law
View Case Detail for SPOKEO, INC. v. ROBINS




Re: ZUBIK v. BURWELL (2015)
"Instead of punting in this ongoing battle against contraceptive coverage, the Supreme Court should have recognized that eight out of nine courts of appeals got the case right."
Elizabeth Sepper, Associate Professor
View Case Detail for ZUBIK v. BURWELL




Re: Obamacare's Prohibition of Sex Discrimination
"Since 2010, we have had a prohibition on discrimination on the basis of sex in health care. We never had that before. Sex discrimination was not prohibited in the health-care system." –The Atlantic, May 15, 2016
Elizabeth Sepper, Associate Professor




Re: HEFFERNAN v. CITY OF PATERSON, NEW JERSEY (2015)
"Justice Thomas’ dissent in Heffernan is one of only a handful of recent opinions to recognize the right of assembly as distinct from free speech." –The Federalist Society, May 9, 2016
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)
View Case Detail for HEFFERNAN v. CITY OF PATERSON, NEW JERSEY




Re: Obama's Immigration Policy
"The Supreme Court, for more than 100 years, has consistently held that immigration is exclusively a federal responsibility. No one individual state should be allowed to disrupt federal immigration policy." –Agence France Presse, April 17, 2016
Stephen H. Legomsky, John S. Lehmann University Professor Emeritus




Re: FRIEDRICHS v. CALIFORNIA TEACHERS ASSOCIATION (2015)
"On eight-person courts the justices reach far fewer 4-4 decisions than we would expect." –New York Times, March 30, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor
View Case Detail for FRIEDRICHS v. CALIFORNIA TEACHERS ASSOCIATION




Re: SCOTUS's Increased Role of Ideology
"Political science research shows that Americans are less likely to support the court when it is portrayed as a political body — as it is during confirmation proceedings — and not a legal body." –New York Times, March 23, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Nomination of Merrick Garland
"These credentials (Judge Garland's experience on an appeals court, as a law clerk and on the executive branch ) aren't required, nor would most former justices have met them, but they reflect the new normal." –New York Times, March 16, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: The Court and Business Interests
"Six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death." –New York Times, March 12, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Supreme Court Nominations Process
"The Roberts Court has been the most pro-business of any since the Second World War." –The New Yorker, March 7, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Following the Death of Associate Justice Antonin Scalia
"To see the number of cases that could change with this appointee is stunning, since so many of the most important cases were decided by 5-to-4 votes." –New York Times, March 3, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Following the Death of Associate Justice Antonin Scalia
"They can leave the law even murkier than it was before with a 4-4 split, so they work hard to minimize them." –CNBC, March 3, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Following the Death of Associate Justice Antonin Scalia
"At-risk precedents run from campaign finance to commerce, from race to religion, and they include some signature Scalia projects such as the Second Amendment. Some would go quickly, some would go slower, but they'll go." –Fox News, Feb. 21, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Supreme Court Nominations
"There’s no question that TV has had an effect.The first day of the hearings is devoted to the opening statement of the senators. We have an entire day of speeches. Much of that is on the issues. Some is on candidates." –Wall Street Journal, Feb. 19, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: ZUBIK v. BURWELL (2015)
"In round one against the contraceptive mandate, the Hobby Lobby decision carved out a major accommodation for for-profit corporations."
Elizabeth Sepper, Associate Professor
View Case Detail for ZUBIK v. BURWELL




Re: Following the Death of Associate Justice Antonin Scalia
"For the first time in decades, the court might swing to a Democratic court. It’s a major moment." –New York Times, Feb. 18, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Supreme Court Appointment
"At-risk precedents run from campaign finance to commerce, from race to religion, and they include some signature Scalia projects, such as the Second Amendment." –New York Times, Feb. 18, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Following the Death of Associate Justice Antonin Scalia
"I continue to think that Justice Scalia’s passing is unlikely to affect the outcome of this specific case. But it clearly reduces the chance of a precedent adverse to the government, because a precedent requires the votes of at least five justices." –Law360, Feb. 16, 2016
Stephen H. Legomsky, John S. Lehmann University Professor Emeritus




Re: Following the Death of Associate Justice Antonin Scalia
"Justice Scalia actually made an affirmative case that corporations are important and should be heard in the political process because of their economic power and significance." –Marketplace, Feb. 15, 2016
Greg Magarian, Professor of Law




Re: Pharmacists' and Religious Beliefs
"The regulation lists a handful of reasons for which pharmacies may reject prescriptions and disallows any other reason—which could include religious objections or personal beliefs or preferences, for example." –Modern Healthcare, Feb. 8, 2016
Elizabeth Sepper, Associate Professor




Re: Supreme Court Immigration Case
"Accepting Texas’s radical theory of standing would be a recipe for paralysis. No one state should be empowered to thwart the federal government’s nationwide policy decisions so easily. And that is why the consequences of the Court’s final disposition will be so profound." –The Huffington Post, Jan. 21, 2016
Stephen H. Legomsky, John S. Lehmann University Professor Emeritus




Re: UNITED STATES v. TEXAS (2015)
"But the most sweeping impact of the Court's decision will be how it rules on whether Texas has standing even to bring the lawsuit. Texas will have to show that DAPA would harm it in some concrete way." –The Washington Post, Jan. 19, 2016
Stephen H. Legomsky, John S. Lehmann University Professor Emeritus
View Case Detail for UNITED STATES v. TEXAS




Re: The Supreme Court Vacancy
"Both President Obama and the Senate Republican leadership will make strategic decisions about the vacancy against the backdrop of a bizarre and tumultuous presidential nominating campaign."
Greg Magarian, Professor of Law




Re: The Supreme Court Vacancy
"Judge Garland is the kind of nominee we haven’t seen since President Bill Clinton nominated Stephen Breyer more than two decades ago: a veteran appellate judge with a reputation for centrism and pragmatism, a nominee who doesn’t excite the president’s political base and a relatively old nominee."
Greg Magarian, Professor of Law




Re: Women in the Judiciary
"Male judges were less likely than female judges to decide in favor of plaintiffs in cases of sex discrimination and that male judges are significantly more likely to rule for plaintiffs in such cases when a female judge is on the panel." –The National Law Journal, Jan. 11, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: HEFFERNAN v. CITY OF PATERSON, NEW JERSEY (2015)
"Later this month, the Supreme Court will hear a case involving convoluted facts and small-town politics. This odd case out of Paterson, N.J., could have a significant impact on the basic First Amendment freedoms of all Americans." –USA Today, Jan. 10, 2016
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)
View Case Detail for HEFFERNAN v. CITY OF PATERSON, NEW JERSEY




Re: SCOTUS and First Amendment Rights
"With Officer Heffernan’s case and Becket’s brief now before it, the Court has an opportunity to reclaim these fundamental First Amendment protections." –USA Today, Jan.7, 2016
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)




Re: Abortion
"Personal stories from female attorneys might be an effective strategy both from legal and emotional standpoints. Their stories bear witness to the court's opinion in a previous abortion case, Planned Parenthood of Southeastern Pennsylvania v. Casey, that women's equal participation in society depends on their access to abortion." –Modern Healthcare, Jan. 7, 2016
Elizabeth Sepper, Associate Professor




Re: Gun Violence
"Twice in the last decade, the Supreme Court has stressed that the Second Amendment right is “not unlimited” and that it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." –The Huffington Post, Jan. 6, 2016
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Loyalty Effect on SCOTUS Justices
"However, the loyalty effect is much stronger for Democratic justices than for Republicans justices." –Washington Post, Dec. 20, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: BURWELL v. HOBBY LOBBY STORES (2013)
"Every court of appeals but one has concluded that having to mail a letter can't be a substantial burden on religion." –Nov. 11, 2015
Elizabeth Sepper, Associate Professor
View Case Detail for BURWELL v. HOBBY LOBBY STORES




Re: BURWELL v. HOBBY LOBBY STORES (2013)
"If the Supreme Court were to side with the large employers in this upcoming case, their employees would be totally stripped of access to contraceptive coverage."
Elizabeth Sepper, Associate Professor
View Case Detail for BURWELL v. HOBBY LOBBY STORES




Re: Chief Justice John Roberts' Supreme Court
"It's a political court. It's an ideological court. But he's confronted with the additional problem that it looks like a partisan court." –USA Today, Sept. 29, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Chief Justice John Roberts' Conservative Record
"He is a reliable conservative in the most closely contested cases but moderate when his vote cannot change the outcome." –New York Times, Sept. 28, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: OBERGEFELL v. HODGES (2014)
"Religious nonprofits should not have to worry about their tax-exempt status even if they don't support gay marriage."
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)
View Case Detail for OBERGEFELL v. HODGES




Re: Liberal Decisions of the Supreme Court
"The Republicans can’t seem to agree even when they agree. The chief justice has a much tougher task than Justice Ginsburg does." –New York Times, June 30, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Same-Sex Marriage
"We’re a long way from pastors being forced to perform civil ceremonies, and there are strong constitutional protections already in place that would prevent that from happening." –Christianity Today, June 29, 2015
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)




Re: OBERGEFELL v. HODGES (2014)
"Ever since Lawrence v. Texas was decided in 2003, the treatment of same-sex couples under state marriage law has been inconsistent with the logical extension of the meaning of the 14th Amendment established in that case."
Neil Richards, Professor of Law
View Case Detail for OBERGEFELL v. HODGES




Re: Ideological Shifts by Individual Supreme Court Justices
"Since the New Deal, eight justices have become lastingly more liberal over their tenure, while only four have moved in a conservative direction." –New York Times, June 17, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Ideological Rankings of Justices from 1937 to 2009
"The shift to the right in cases where Kagan’s and Sotomayor’s votes can’t make a difference makes them look moderate. A moderate image is attractive to many judges, owing to a general dislike of ‘political’ judges." –The American Prospect, May 5, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Gay Marriage
"When the ‘mood of the public’ is liberal (conservative), the Court is significantly more likely to issue liberal (conservative) decisions. But why is anyone’s guess." –Bloomberg Politics, Feb. 25, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Conservative Judges
"The role of ideology increases as cases move up the judicial ladder. That’s because the constraints on judicial discretion lessen as one moves up." –New York Times, Jan. 31, 2015
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Ruling on Same-Sex Marriage
"Some liberal and some conservative, may tend to diffuse media coverage and other commentary of any particular case, and thus spare the justices unwanted criticism." –New York Times, Sept. 29, 2014
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: MCCULLEN v. COAKLEY (2013)
"We should be glad for Hobby Lobby, but we shouldn't lose sight of the unanimous decision in McCullen, and its reminder that when it comes to the roots of our religious liberty, the First Amendment is what matters the most." –Christianity Today, July 1, 2014
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)
View Case Detail for MCCULLEN v. COAKLEY




Re: BURWELL V. HOBBY LOBBY (2013)
"Whatever we think about the outcome, this opinion radically changes religious liberty law. It throws out every 1st Amendment case that we have." –NPR's "On Point" program, July 1, 2014
Elizabeth Sepper, Associate Professor
View Case Detail for BURWELL V. HOBBY LOBBY




Re: Unanimity in the Court's 2013 term
"The higher unanimity rate might reflect an increase in cases with low ideological stakes. This term, about 36 percent involved questions of rights and liberties, compared with 57 percent in the three previous terms." –New York Times, July 1, 2014
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: Polarization in the Roberts Court
"The unanimity this term, in my view, really reflects case selection. The fraction of civil liberties cases this term is significantly lower, and the more civil liberties cases, the less likely decisions are to be unanimous." –New Republic, July 1, 2014
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




Re: TOWN OF GREECE v. GALLOWA (2013)
"The 5-4 split on the decision is a familiar one. What was surprising is that all of the Justices seemed to endorse some kind of legislative prayer." –Legal Broadcast Network, May 10, 2014
John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion and Professor of Political Science (by courtesy)
View Case Detail for TOWN OF GREECE v. GALLOWA




Re: Judicial Activism in the Roberts' Court
"In a nutshell, liberal justices tend to invalidate conservative laws and conservative justices, liberal laws." –New York Times, Oct. 12, 2013
Lee Epstein, Ethan A.H. Shepley Distinguished University Professor




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