The Supreme Court and the Constitution

Ernest A. Young, Duke University School of Law

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The present edition retains the structure of the last one but involves many new cases and considerable re-thinking of old ones. The major changes are:

• The second half of Chapter Four—on Reconstruction and the Fourteenth Amendment—is completely rewritten to emphasize the achievements of the War and Reconstruction, the tragedy of the “redemption” of the South by white supremacist governments, and the slow slide from the Fourteenth Amendment to Jim Crow. (This work reflects the author’s ongoing book project on “Dying Constitutionalism.”)
• Chapter Seven on the rebirth of substantive due process has been thoroughly re-worked in light of Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade’s fundamental right to abortion. After Griswold and Roe, that chapter uses Glucksberg and Obergefell as examples of contemporary substantive due process jurisprudence, then concludes with Dobbs and a discussion of stare decisis.
• Chapter Eight on the federal system is much the same substantively, but the author replaced the principal case treatment of both Term Limits and Garcia with summary notes in the interests of space. (Consider assigning this chapter as background reading to go along with an asynchronous introductory lecture on federalism.)
• Chapter Eleven on federalism limits on state power has been significantly re-worked. It now opens with a section on the most powerful aspect of the dormant commerce clause, the anti-discrimination rule, along with its major exceptions (e.g., market participants) and analogous provisions (Art. IV privileges and immunities, and equal protection). This chapter now includes some problems based on covid-19 era restrictions on interstate movement. The second section replaces the Kassel case with National Pork Producers v. Ross, which debates both the Pike balancing test and the general problem of horizontal federalism. Finally, the third section addresses preemption, replacing Pacific Gas & Electric and Lorillard with Wyeth v. Levine, a more recent case that emphasizes preemption within the administrative state.
• Chapters Twelve and Thirteen on separation of powers have had to be reworked considerably in light of developments under the Biden and Trump Administrations. As this book goes to press, the Supreme Court has yet to weigh in on much of the latter administration’s challenge to important precedents like Humphrey’s Executor. But these chapters, as well as Chapter Ten’s section on commandeering, take President Trump’s executive orders imposing tariffs, withdrawing federal funding, dismissing independent agency officials, and ordering federal suits against sanctuary cites as examples for discussion of how the various doctrines might play out.
• Chapter Thirteen on the structure of the political branches also features several new cases decided by the Roberts Court: Loper Bright v. Raimondo replaces American Trucking with respect to legislative delegations to administrative agencies; Trump v. United States replaces Nixon on executive immunities; and Seila Law v. Consumer Financial Protection Bureau replaces Morrison v. Olson on the presidential removal power. The notes also feature several cases under the “major questions” doctrine.
• Chapter Fifteen on equal protection replaces two older affirmative action cases, Grutter and Parents Involved, with Students for Fair Admissions v. Harvard.
• Moving Glucksberg and Obergefell into Chapter Seven required substantially re-working the later rights chapters. The author eliminated Chapter Seventeen from the last edition, which was a case study of the gay rights movement, and moved that chapter’s key cases into Chapters Seven (Obergefell) and Sixteen (Lawrence). Bowers v. Hardwick now features in Chapters Seven and Sixteen, and Romer v. Evans is now discussed in a note in Chapter Fifteen.

Learn more about this series.