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Richard M Re
@richardre.bsky.social
· Jul 23
Foreword: To A Conservative Warren Court
Ideological conflict has masked an underlying continuity in the American legal system. In recent years, the Supreme Court -- while obviously subject to fierce c
papers.ssrn.com
Last fall, the editors of the Harvard Law Review invited me to write the Foreword for this year's Supreme Court issue.
My working draft is below, and comments are most welcome.
papers.ssrn.com/sol3/papers....
My working draft is below, and comments are most welcome.
papers.ssrn.com/sol3/papers....
Reposted by Richard M Re
Out today in HLR, my piece Skrmetti Beyond Scrutiny. What happened, what it means for trans rights and sex equality more broadly: harvardlawreview.org/print/vol-13...
Skrmetti Beyond Scrutiny - Harvard Law Review
In United States v. Skrmetti, the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care.
harvardlawreview.org
November 11, 2025 at 1:36 AM
Out today in HLR, my piece Skrmetti Beyond Scrutiny. What happened, what it means for trans rights and sex equality more broadly: harvardlawreview.org/print/vol-13...
Reposted by Richard M Re
NOW IN PRINT in the Notre Dame Law Review:
"GIVE PARENTS THE VOTE," with Joshua Kleinfeld: arguing that parents, not strangers, should direct the voting power of children, and that state legislatures can make it happen!
papers.ssrn.com/sol3/papers....
"GIVE PARENTS THE VOTE," with Joshua Kleinfeld: arguing that parents, not strangers, should direct the voting power of children, and that state legislatures can make it happen!
papers.ssrn.com/sol3/papers....
November 10, 2025 at 4:44 PM
NOW IN PRINT in the Notre Dame Law Review:
"GIVE PARENTS THE VOTE," with Joshua Kleinfeld: arguing that parents, not strangers, should direct the voting power of children, and that state legislatures can make it happen!
papers.ssrn.com/sol3/papers....
"GIVE PARENTS THE VOTE," with Joshua Kleinfeld: arguing that parents, not strangers, should direct the voting power of children, and that state legislatures can make it happen!
papers.ssrn.com/sol3/papers....
November 10, 2025 at 11:24 PM
Reposted by Richard M Re
On the blog: In approving Trump's transphobic policy of listing sex assigned at birth on passports, SCOTUS said govt was "merely attesting to a historical fact," thus echoing the obtuseness of Plessy v Ferguson's statement that Black folks were only choosing to see segregation as white supremacy. 👇
SCOTUS Echoes Plessy v Ferguson in Greenlighting Trump's Transphobic Passport Policy
Repeating a pattern that has become all too familiar, late last week the Roberts Court issued a per curiam order staying a lower court rulin...
www.dorfonlaw.org
November 10, 2025 at 12:27 PM
On the blog: In approving Trump's transphobic policy of listing sex assigned at birth on passports, SCOTUS said govt was "merely attesting to a historical fact," thus echoing the obtuseness of Plessy v Ferguson's statement that Black folks were only choosing to see segregation as white supremacy. 👇
Reposted by Richard M Re
Hi new followers!
If you happen to be interested in the separation of powers, Congress, government shutdowns, contempt of Congress, the filibuster, and more, have I got the book for you! www.amazon.com/dp/0300248334/
If you happen to be interested in the separation of powers, Congress, government shutdowns, contempt of Congress, the filibuster, and more, have I got the book for you! www.amazon.com/dp/0300248334/
Congress's Constitution: Legislative Authority and the Separation of Powers: Chafetz, Josh: 9780300248333: Amazon.com: Books
Congress's Constitution: Legislative Authority and the Separation of Powers [Chafetz, Josh] on Amazon.com. *FREE* shipping on qualifying offers. Congress's Constitution: Legislative Authority and the Separation of Powers
www.amazon.com
November 18, 2024 at 12:49 PM
Hi new followers!
If you happen to be interested in the separation of powers, Congress, government shutdowns, contempt of Congress, the filibuster, and more, have I got the book for you! www.amazon.com/dp/0300248334/
If you happen to be interested in the separation of powers, Congress, government shutdowns, contempt of Congress, the filibuster, and more, have I got the book for you! www.amazon.com/dp/0300248334/
Reposted by Richard M Re
Reposted by Richard M Re
My new article "Immigration is Not Invasion" is now up on SSRN. It comprehensively explains why illegal migration and drug smuggling do not qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798: papers.ssrn.com/sol3/papers....
Immigration is Not Invasion
<div>
In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border dr
papers.ssrn.com
November 6, 2025 at 4:42 PM
My new article "Immigration is Not Invasion" is now up on SSRN. It comprehensively explains why illegal migration and drug smuggling do not qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798: papers.ssrn.com/sol3/papers....
Reposted by Richard M Re
Law Profs teaching First Amendment: I have put together a FREE, recently updated, and easy to use casebook for use in free speech classes. If you are interested in using such a casebook, send me an email or DM and I would be happy to share!
November 7, 2025 at 3:31 PM
Law Profs teaching First Amendment: I have put together a FREE, recently updated, and easy to use casebook for use in free speech classes. If you are interested in using such a casebook, send me an email or DM and I would be happy to share!
Reposted by Richard M Re
McConnell on “Against Constitutional Originalism” by Gienapp
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic…
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic…
McConnell on “Against Constitutional Originalism” by Gienapp
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic originalist theory, but the title is a misnomer. Highly recommended.
legaltheoryblog.com
November 7, 2025 at 8:25 PM
McConnell on “Against Constitutional Originalism” by Gienapp
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic…
Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic…
Reposted by Richard M Re
On why judicial biographies are almost always bad, unless you collect cliches. washingtonmonthly.com/2025/11/02/a...
Justice Barrett’s Campaign Biography
Amy Coney Barrett’s book, "Listening to the Law," claims the Supreme Court is above politics. Its very existence proves otherwise.
washingtonmonthly.com
November 3, 2025 at 1:12 PM
On why judicial biographies are almost always bad, unless you collect cliches. washingtonmonthly.com/2025/11/02/a...
Reposted by Richard M Re
There will now be 10,000 new ICE agents & 100,000 new detention beds--and few safeguards protecting people from constitutional violations by the feds.
Time for states to pass laws allowing people to sue fed agents. Read about it these "converse-1983" statutes here: papers.ssrn.com/sol3/papers....
Time for states to pass laws allowing people to sue fed agents. Read about it these "converse-1983" statutes here: papers.ssrn.com/sol3/papers....
July 3, 2025 at 8:15 PM
There will now be 10,000 new ICE agents & 100,000 new detention beds--and few safeguards protecting people from constitutional violations by the feds.
Time for states to pass laws allowing people to sue fed agents. Read about it these "converse-1983" statutes here: papers.ssrn.com/sol3/papers....
Time for states to pass laws allowing people to sue fed agents. Read about it these "converse-1983" statutes here: papers.ssrn.com/sol3/papers....
Reposted by Richard M Re
I did not write the headline, but I have an op ed on Prop 50 over at the @sfchronicle.com.
Shorter version: the nationalization and polarization of our politics is what got us here, and it's also the most likely way out. It will take national partisan Democratic hardball to enact anti-hardball.
Shorter version: the nationalization and polarization of our politics is what got us here, and it's also the most likely way out. It will take national partisan Democratic hardball to enact anti-hardball.
California’s Prop 50 passed. Now, here’s how to end partisan redistricting once and for all
OPINION: We need a new federal statute of mutual disarmament — ideally before we reach the point where there are zero California Republicans and zero Texas Democrats, Joseph Fishkin writes.
www.sfchronicle.com
November 5, 2025 at 6:10 AM
I did not write the headline, but I have an op ed on Prop 50 over at the @sfchronicle.com.
Shorter version: the nationalization and polarization of our politics is what got us here, and it's also the most likely way out. It will take national partisan Democratic hardball to enact anti-hardball.
Shorter version: the nationalization and polarization of our politics is what got us here, and it's also the most likely way out. It will take national partisan Democratic hardball to enact anti-hardball.
Reposted by Richard M Re
For the Democratic party, this is an enormous future test, and a completely unfair burden, but the party doesn't get to choose.
For many years R's have been playing constitutional hardball D's have not matched. See this article I wrote with Dave Pozen.
That will have to change.
For many years R's have been playing constitutional hardball D's have not matched. See this article I wrote with Dave Pozen.
That will have to change.
ASYMMETRIC CONSTITUTIONAL HARDBALL - Columbia Law Review
Introduction Donald Trump recently became the first President since James Garfield in 1881 to take office with a vacant Supreme Court seat to fill. Political struggle, as much as luck, produced this r...
www.columbialawreview.org
November 5, 2025 at 6:19 PM
For the Democratic party, this is an enormous future test, and a completely unfair burden, but the party doesn't get to choose.
For many years R's have been playing constitutional hardball D's have not matched. See this article I wrote with Dave Pozen.
That will have to change.
For many years R's have been playing constitutional hardball D's have not matched. See this article I wrote with Dave Pozen.
That will have to change.
Reposted by Richard M Re
“The Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism.”
www.dorfonlaw.org/2025/11/the-...
www.dorfonlaw.org/2025/11/the-...
The Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism
Donald Trump is asserting more executive power than any President since the Civil War. He would likely not only agree with that assessment b...
www.dorfonlaw.org
November 5, 2025 at 2:18 PM
“The Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism.”
www.dorfonlaw.org/2025/11/the-...
www.dorfonlaw.org/2025/11/the-...
Many thanks to Mark and Mike for inviting me on their pod!
New Supreme Betrayal episode: A conversation with Richard Re about why he describes the Roberts Court as a conservative Warren Court, and a dialogue about critical legal studies and his analysis: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
Conversation with Richard Re | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America
Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warr...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com
November 5, 2025 at 11:46 AM
Many thanks to Mark and Mike for inviting me on their pod!
Reposted by Richard M Re
Andrew Kent and I have a blog post on Quorum Call, the blog of the Harvard Law School Journal of Legislation, about the tariffs case being argued tomorrow. You can find it here: journals.law.harvard.edu/jol/2025/11/...
Does the President Have Power to Impose Tariffs Using Peacetime Economic Sanctions Legislation? – Harvard Journal on Legislation
journals.law.harvard.edu
November 4, 2025 at 6:23 PM
Andrew Kent and I have a blog post on Quorum Call, the blog of the Harvard Law School Journal of Legislation, about the tariffs case being argued tomorrow. You can find it here: journals.law.harvard.edu/jol/2025/11/...
Reposted by Richard M Re
New paper out! My co-author @barryfriedman1.bsky.social of @policingproject.bsky.social and I explore how 911 dispatch protocols can unintentionally undermine the goals of alternative response — and what to do about it.
Out in Criminology & Public Policy: onlinelibrary.wiley.com/doi/10.1111/...
Out in Criminology & Public Policy: onlinelibrary.wiley.com/doi/10.1111/...
Rethinking rules for 911: Dispatching alternative responders in Denver and San Francisco
Research Summary Alternatives to police response to 911 calls have emerged as a leading public safety reform strategy. A key policy implementation challenge lies in determining whether alternative r...
onlinelibrary.wiley.com
November 3, 2025 at 9:36 PM
New paper out! My co-author @barryfriedman1.bsky.social of @policingproject.bsky.social and I explore how 911 dispatch protocols can unintentionally undermine the goals of alternative response — and what to do about it.
Out in Criminology & Public Policy: onlinelibrary.wiley.com/doi/10.1111/...
Out in Criminology & Public Policy: onlinelibrary.wiley.com/doi/10.1111/...
Reposted by Richard M Re
Reposting my paper because it was not distributed in many SSRN e-journals--maybe it's a weird fit.
papers.ssrn.com/sol3/papers....
papers.ssrn.com/sol3/papers....
November 3, 2025 at 12:48 PM
Reposting my paper because it was not distributed in many SSRN e-journals--maybe it's a weird fit.
papers.ssrn.com/sol3/papers....
papers.ssrn.com/sol3/papers....
Reposted by Richard M Re
New from me in @michlawreview.bsky.social reviewing ‘New Deal Law & Order: How the War on Crime Built the Modern Liberal State’
michiganlawreview.org/whats-left-o...
michiganlawreview.org/whats-left-o...
What's Left of the New Deal State? - Michigan Law Review
New Deal Law and Order: How the War on Crime Built the Modern Liberal State. By Anthony Gregory. Harvard University Press. 2024. Pp. 473. $45. Introduction A vast body of scholarship situates itself i...
michiganlawreview.org
November 3, 2025 at 3:53 PM
New from me in @michlawreview.bsky.social reviewing ‘New Deal Law & Order: How the War on Crime Built the Modern Liberal State’
michiganlawreview.org/whats-left-o...
michiganlawreview.org/whats-left-o...
Reposted by Richard M Re
Review here: papers.ssrn.com/sol3/papers....
"Alas"
<p><span>Whether written or unwritten, young or old, constitutions can’t compel the construction of institutions or the enforcement of norms any more than maps
papers.ssrn.com
November 3, 2025 at 2:00 PM
Review here: papers.ssrn.com/sol3/papers....
Reposted by Richard M Re
On the blog, I preview the issues in Wednesday's SCOTUS oral argument in the tariff case. I also discuss the prominent quotations of Trump's idiocy in the SG's lead brief, which cannot be persuasive but are probably included as a warning to the justices not to cross the mad king who loves tariffs.
Some Major Questions for Wednesday's Oral Argument in the Tariff Case
On Wednesday, the Supreme Court will hear oral argument in two consolidated cases that present the question whether President Trump's impos...
www.dorfonlaw.org
November 3, 2025 at 12:35 PM
On the blog, I preview the issues in Wednesday's SCOTUS oral argument in the tariff case. I also discuss the prominent quotations of Trump's idiocy in the SG's lead brief, which cannot be persuasive but are probably included as a warning to the justices not to cross the mad king who loves tariffs.
Reposted by Richard M Re
In this post, @richardre.bsky.social argues that strategies of conciliation/dissent are not either/or. Even with a minority of 3, the liberal justices can specialize and, through division of labor, do both. But the argument against a unified strategy doesn't specify all the costs of appeasement. /2
Some Thoughts on the Liberal Dissenters’ Dilemma
Inspired by Jodi Kantor's New Article
blog.dividedargument.com
November 2, 2025 at 1:52 AM
In this post, @richardre.bsky.social argues that strategies of conciliation/dissent are not either/or. Even with a minority of 3, the liberal justices can specialize and, through division of labor, do both. But the argument against a unified strategy doesn't specify all the costs of appeasement. /2