Battle for the Constitution: Week of October 26, 2020 Roundup

Below is a round-up of the latest from the Battle for the Constitution: a special project on the constitutional debates in American life, in partnership with The Atlantic.

Republicans Don’t Know What to Do with Their Bad-Faith ACA Case

By Nicholas Bagley, Professor of Law, University of Michigan Law School

Nicholas Bagley compares the vigorous support the first Supreme Court case against the Affordable Care Act garnered from the conservative establishment and Republican party against the far weaker backing for the current case, California v. Texas—and argues that while the Court may not overturn the law, future major legislation passed by a Democratic president and Congress will face a tough road with the Justices.

Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny

By Angus King Jr., United States Senator, Maine and Heather Cox Richardson, Professor of History, Boston College

Angus King Jr. and Heather Cox Richardson argue against originalism—the method of legal interpretation that favors interpreting the Constitution or laws based strictly on their original meaning—and for an interpretative philosophy that looks to the ideals and intent of the Constitution, and grows as society does.

The Transition Is Already Happening (And It’s Going Fine So Far)

By Kate Shaw, Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy, Yeshiva University Cardozo School of Law and Michael Eric Herz, Arthur Kaplan Professor of Law, Yeshiva University Cardozo School of Law

Kate Shaw and Michael Eric Herz explain some of the laws governing presidential transitions and note that while Donald Trump could seek to sabotage it if he loses, many of its processes are insulated from political interference and it appears to be running smoothly so far.

‘Religious Equality’ Is Transforming American Law

By Zalman Rothschild, Adjunct Professor of Law, New York University School of Law

Zalman Rothschild looks at the upcoming Supreme Court case, Fulton v. City of Philadelphia—about if a city can choose not to contract with an adoption agency because that agency will not work with gay couples, and argues that the Supreme Court may upend protections for LGBTQ Americans by reframing religious liberty as an equality issue, allowing people with religious objections to serving, hiring, or marrying LGBTQ people the ability to do so.