We the People – Modern Constitutional Challenges and the Practice of Law
Associate editor Jay Fort is stepping back a bit to focus on the current moment and status in Constitutional law more broadly, taking a bird's-eye, high-level overview of some of the most pressing issues re-shaping modern trends in constitutional law and jurisprudence. We’ll discuss the power and independence of the individual branches of government, independent agencies, focusing on the federal courts, particularly the Supreme Court and its current trajectory. We’ll consider how, increasingly, the obvious ideological makeup and overt politicization of the Supreme Court is, perhaps, more apparent than we’ve seen in decades. Specifically, we’ll evaluate two major trends: the Court’s increasingly common use of the “shadow docket” (private decisions made without full briefing, argument, or explanation of the result) and its interpretation of the “unitary executive theory,” namely increasing the power of the executive and decreasing the authority of congressionally established independent agencies.
Recently, the legal world has witnessed established precedents, and even the very notion of Stare Decisis, are more overtly scrutinized, partisanly narrowed, and outright overturned. In many ways, we see how the court’s newly cemented ideological split presaged many of its current trajectory and judicial outcomes, re-kindling controversies involving the Court’s institutional legitimacy and independence, ethical standards, and more.
Notably considering the recent continuum between the first and second Trump administrations, noting how the current Court continues to change course, handing down public and increasingly private (shadow docket) decisions whose impact implicates a host of foundational issues, including: executive authority to voting rights, first amendment rights, education rights and policy, administrative law and procedure, criminal procedure and civil liberties, and more. These impactful determinations reflect a federal legal land that has been rapidly redefined by hyper-partisan Supreme Court decisions impacting statute, policy, and the practice of law, in general.
In our previous episode, we considered the Constitutional issues at the heart of Criminal procedure protections, particularly analyzing how 4th Amendment rights and protections against unreasonable searches and seizures continue to be uniquely stress-tested in an era of ever-emerging technology, social media interfaces, and mass data surveillance opportunities. We considered the current administration’s “unitary executive theory” and blatant attempt to reinterpret the limits of executive authority as the new trump administration seeks to compel- and coerce- government agencies and state governments, to given them unfettered private, personal data of millions of Americans, tapping private technology companies- like Palantir to centralize (hoover) the datasets of countless Americans personal- presumably private- data.
To help us better understand this moment in time and its constitutional law implications, we’ll turn to Professor Alan Raphael, Curt and Linda Rodin Associate Professor of Law and Social Justice. Professor Raphael has taught at the law school since 1983, and his current classes include constitutional law, Criminal Procedure: adjudication, and Criminal Procedure: investigation.
Further, we look to Professor Raphael to help us unpack and evaluate the status of constitutional rights and civil liberties implicating our current moment in constitutional law, including: fundamental enumerated and unenumerated rights; the independence of the federal courts, the role of executive and independent agencies; constitutional rights and precedent today, criminal procedure and current stat of policing practice criminal justice system & real-world operation of free speech in a hyper connected moment; voting rights & election law in practice; educational rights and policy, and current debates around; judicial Independence & institutional trust.
