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Articles by Rodger Citron
Justices to decide whether failure to plead an affirmative defense prevents moving for summary judgment on that same defense Original
CASE PREVIEW (Kevin Carter/Getty Images) Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, to be argued on Nov. 2, involves an issue that will quicken the pulse of civil procedure aficionados. No less than four different rules of the Federal Rules of Civil Procedure are in play: affirmative defenses under Rule 8, amending a pleading under Rule 15, pretrial management under Rule 16, and summary judgment under Rule 56.
Chief Justice John Roberts’ long game on executive power Original
Search articles and cases Type to search articles, cases, and authors. Press ↵ to view all results. Skip to main content (Tom Williams/CQ-Roll Call, Inc via Getty Images) Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not necessarily reflect the opinions of SCOTUSblog or its staff. *** One of Chief Justice John Roberts’ most enduring commitments has been to expanding presidential power.
Justice Kavanaugh: the great concurrer of the Roberts court? Original
SCOTUS Outside OpinionsCommentary (Jim Watson/AFP via Getty Images) Please note that SCOTUS Outside Opinions constitute the views of outside contributors and do not necessarily reflect the opinions of SCOTUSblog or its staff. Justice William Brennan’s legacy is inextricably tied to his role as “the playmaker” of the Warren court.
What Makes Sam Alito So Angry?
The last day of the Supreme Court term proved to be eventful for Justice Samuel Alito. While no one was surprised that he dissented from the Court’s decision invalidating President Donald Trump’s executive order limiting birthright citizenship, there was also a mistaken National Public Radio report, promptly retracted, that Alito had announced his retirement.
A tale of two justices and their children’s books Original
Now that the court has handed down its final opinions in argued cases for the 2025-26 term, Supreme Court observers must account not only for what has been decided but, on a lighter note, the most recent children’s book written by a justice. And as we celebrate the 250th anniversary of the nation’s founding, the spotlight is on Neil Gorsuch’s Heroes of 1776, co-written with Janie Nitze, his former law clerk. Gorsuch is not the only justice to have written for young readers.
Law, memoir, and the mystery of Justice Anthony Kennedy’s writing Original
The Supreme Court justice memoir, so lucrative for its authors, tends to be a less than illuminating genre. Justice Neil Gorsuch’s A Republic, If You Can Keep It reiterated the case for originalism and attempted to illustrate why he was a worthy successor to Justice Antonin Scalia. Justice Amy Coney Barrett’s Listening to the Law recited high school civics lessons. And in Lovely One, Justice Ketanji Brown Jackson described her family history and life .
Navigating the “Political Thicket”: A Conversation with Professor Ruth Greenwood on Gerrymandering and the Future of the Voting Rights Act
On a recent episode of the Touro Law Review podcast, I was pleased to host a timely and incisive discussion with Ruth Greenwood, Assistant Clinical Professor and Director of the Election Law Clinic at Harvard Law School. In this episode, Professor Greenwood and I discussed the legal and political landscape of electoral districting.
Which NBA player is each Supreme Court justice? Original
!- end of Google Analytics Code Snippet by GA4WP--> SCOTUS FOCUS Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff, especially when it comes to the NBA. For court fans, October is the sweetest month. That’s true whether you like lacing up wingtips for a pretrial conference or high tops for a pickup basketball game. At the Supreme Court, the highest court in the land, the 2025-26 term already has begun.
How We Wrote About the Administrative Law Revolution While It Was (and Still Is) Occurring
Ladies and gentlemen, the administrative state is burning. (Hat tip to Jonathan Mahler’s The Bronx is Burning, his book about New York City in 1977.) How are administrative law professors responding to this extraordinary development? Earlier this year, Professors Shalev Roisman and Oren Tamir published an article in the Michigan Law Review reviewing administrative law casebook supplements after the 2023-24 Supreme Court term to provide “Pictures of a Revolution” in administrative law.
No Exit: There’s Been Talk of Secession; Could It Occur Nowadays?
We live in a politically turbulent time—so much so that our political news is dotted with stories about secession, something that hasn’t been attempted in a significant way since 1860 and 1861. The Civil War, the deadliest war in the nation’s history, ensued. New York Times columnist Jamelle Bouie recently discussed the parallels between political developments after the adoption of the Fugitive Slave Act in 1850 and the response today to Immigration and Customs Enforcement detentions.
Notes on the Opinions in Trump v. CASA, Inc.
The Supreme Court’s recent decision in Trump v. CASA, Inc. involves the scope of the president’s power and the related question of the judiciary’s authority to check that power, perhaps the most pressing issues in law and politics today. Much has been made of whether the Court’s 6-3 decision should be considered partisan. All six justices who voted to limit universal injunctions were appointed by Republican presidents while the three justices who dissented were appointed by Democratic presidents.
Separation of Powers Conflict and Conciliation: President Trump and Chief Justice Roberts Defend their Institutions and Arrive at a Détente
Donald Trump has been President, for the second time, for less than five months. That has been enough time for him to issue numerous executive orders, see some of them challenged successfully in federal court, launch a rhetorical war on the judges who ruled against his administration, and engage in brinksmanship over whether the executive branch would comply with adverse federal court orders, only to reverse course and follow them.
The Justice Who May Have Been Too Smart for the Job
Justice David Souter’s death last week prompted an outpouring of nostalgia for a recent but now bygone era of Supreme Court politics. A nominee whose views were not foreordained? A Senate confirmation vote in which the nominee received 90 votes? A Justice who retired after less than twenty years of service and never had a lucrative book contract or collected lavish gifts from patrons? So quaint, so 20th century. Souter was all of the above.
Judge Wilkinson’s Dualist Opinion in Abrego Garcia v. Noem: Judicial Review of Executive Branch Action in a Transformative Time
More than three decades ago, Professor Bruce Ackerman set out his theory of the United States as a dualist democracy in the first volume of We the People. Much of the time, Ackerman explained, our political leaders engage in “ordinary lawmaking” that is constrained by the Constitution. In extraordinary times, however, the nation—not just its leaders, but the public as well—engages in “higher lawmaking” when the principles by which we govern ourselves are transformed.
The Rusty Chronicles: Notes on Scott Turow’s Presumed Guilty
I was in college when Scott Turow’s Presumed Innocent was published in the 1980s and the image of the paperback cover—a red fingerprint against a black background—is still an indelible memory. Quite simply, the book seemed to be everywhere; it was the quintessential beach read, a legal thriller informed by the mysteries of sex that had real literary merit. A few years later, I was in law school when the “Presumed Innocent” movie starring Harrison Ford came out in the summer of 1990.
Five Ways of Looking at Presidential Pardons
With the departure of the Biden administration and the arrival of the second Trump administration, presidential pardons are in the news. Nothing new about that, one could say. As the President prepares to leave the White House, inevitably attention turns to consideration of who will benefit from presidential clemency. In the final hours of President Biden’s presidency, he granted a number of controversial pardons.
The Chief Justice Roberts Who Stood Up Last Term Was More Interested in Advancing a Conservative Legal Agenda than Promoting Judicial Statesmanship: Part Two
Part one of this article discussed the 2019-20 and 2021-22 Supreme Court terms. In the former term (which I referred to as Act I), Chief Justice John Roberts navigated the Court through a series of challenging cases, endeavoring to keep the Court’s institutional reputation above or apart from partisan politics. In the latter term (Act II), Roberts seemed to be outpaced by a Court with six conservative justices, most notably in the Dobbs case that overruled Roe v.
The Chief Justice Roberts Who Stood Up Last Term Was More Interested in Advancing a Conservative Legal Agenda than Promoting Judicial Statesmanship: Part One
Since John Roberts was confirmed as chief justice of the Supreme Court nearly twenty years ago, he has led the Supreme Court with a Janus face. There is the Chief Justice Roberts who is politically attuned and focused on the Court’s legitimacy.
The Continuing Relevance of The Rosenberg Espionage Case-for Judge Aileen Cannon
As former President Donald Trump navigates the legal system as a defendant, writers have noted the lessons he learned from Roy Cohn, his former lawyer and mentor. (Perhaps the most recent example: Kai Bird’s essay last month in the New York Times.) Cohn, a brilliant, corrupt attorney, first made his name as a prosecutor in the infamous Cold War espionage case, United States v. Rosenberg.
Of Mass Torts, Multidistrict Litigation, and Collateral Estoppel: Notes on Justice Thomas’s Dissent from the Denial of Certiorari in E.I. du Pont de Nemours & Co. v. Abbott
As the current Supreme Court term approaches its final stretch, all eyes are on the blockbuster cases. By the time it adjourns this summer, the Court will have decided cases involving the prosecution of former President Donald Trump (and therefore the path of the next presidential election), the scope of the administrative state, and other consequential and controversial issues, including another case about the legality of abortion.
The Federal Judge Who Sold Justice: A Review of Gary Stein’s Biography of Martin Manton
The renowned judges who have served on the United States Court of Appeals for the Second Circuit include John Marshall Harlan, Thurgood Marshall, Learned Hand, and Henry Friendly. Each was extraordinarily able and accomplished, and each embodied a notion of the law that was larger than himself.
Personal Jurisdiction Makes Strange Bedfellows: An Assessment of the Supreme Court’s Decision in Mallory v. Norfolk Southern Railway Co.
Our nomination for the most intriguing case of the last Supreme Court term is Mallory v.
The Judge Who Sentenced the Rosenbergs
More than seven decades after their trial, conviction, and execution, Julius and Ethel Rosenberg still resonate in our political and legal culture. In 1951, during one of the hottest moments of the Cold War, the United States prosecuted the couple for conspiring to provide atomic secrets to the Soviet Union. The prosecutors, who included Roy Cohn, obtained the couple’s conviction through the testimony of Ethel’s younger brother, David Greenglass. The trial court judge, Irving R.
The Judge Who Sentenced the Rosenbergs
More than seven decades after their trial, conviction, and execution, Julius and Ethel Rosenberg still resonate in our political and legal culture. In 1951, during one of the hottest moments of the Cold War, the United States prosecuted the couple for conspiring to provide atomic secrets to the Soviet Union. The prosecutors, who included Roy Cohn, obtained the couple’s conviction through the testimony of Ethel’s younger brother, David Greenglass. The trial court judge, Irving R.
Mallory v. Norfolk Southern Railway Co.: Of Corporate Registration Statutes and Personal Jurisdiction
In Mallory v. Norfolk Southern Railway Co., a case to be argued on November 8, the Supreme Court again is wading into a seemingly mundane area of law that has commanded outsized attention in recent years—personal jurisdiction. As in the Court’s other recent forays in this area, this term’s case involves a corporate defendant’s objections to the exercise of jurisdiction in fora chosen by plaintiffs for strategic reasons.
Roe and Dobbs as Defining Cases for the Supreme Court and the Justices Who Wrote the Majority Opinions
Just as Roe v. Wade is the representative case of Justice Harry Blackmun’s tenure on the Supreme Court, so too will Dobbs v. Jackson Women’s Health Organization become the emblematic decision of its author, Justice Samuel Alito, Jr. The stark contrast between the two decisions in their rhetoric, reasoning, and results reveals a great deal about each Justice, as well as the Court that decided each case.
SCOTUS Thinks It Can End Abortion Because Sexism is Solved
Jurisprudence The conservative justices would like you to believe that women have fully achieved equality in America—so abortion is no longer necessary. By Rodger Citron and Dahlia Lithwick Dec 09, 20215:33 PM Supreme Court Justice Amy Coney Barrett Photo illustration by Slate. Photo by Chip Somodevilla/Getty Images.
E.L. Doctorow’s The Book of Daniel Turns 50: Reflections on a Novel Inspired by the Case of Julius and Ethel Rosenberg
Seventy years ago, the jury in a federal criminal trial convicted Julius Rosenberg and his wife Ethel of conspiracy to commit espionage. The United States charged the couple (and several other defendants) with passing atomic secrets to the Soviet Union. In the heat of the Cold War—the Korean War had begun the year before, in 1950—the judge who tried the case, Irving R. Kaufman, sentenced the Rosenbergs to death.
The Pentagon Papers Case through the Mists of Time: Understanding the Court’s 6-3 Decision in the Most Important First Amendment Case Ever
Today marks the 50th anniversary of the Supreme Court’s decision in New York Times Co. v. United States, known as the “Pentagon Papers” case. The newspapers involved—the Times and the Washington Post—will treat the day as a national holiday. And understandably so: In the most important legal case ever involving the clash between the government’s efforts to enjoin publication in the name of national security and the newspapers’ right to publish under the First Amendment, the newspapers prevailed.
Here We Go Again: The Supreme Court Considers Whether to Further Narrow the Law of Personal Jurisdiction
Currently pending before the Supreme Court are two garden-variety personal injury cases involving a personal jurisdiction issue that, we thought, had been settled in the decades we have been teaching Civil Procedure: whether a plaintiff injured in an automobile accident may hale the out-of-state manufacturer of the automobile into the forum state where the accident occurred.
A Half Century After Its Publication, What Can “The Greening of America” Tell Us About the United States Today?
It was 50 years ago this week that the New Yorker published “The Greening of America,” a 70-page article by a Yale Law School professor named Charles Reich. The article launched an unlikely best-selling book and prompted an extended debate over its account of American society and embrace of the student counterculture.
Notes on an Oral Argument: The Questions Asked, the Answers Given, and What They May Augur for the Supreme Court’s Decision in the Congressional Subpoena Cases
In May, the Supreme Court heard oral argument in two critical separation-of-powers cases regarding demands for President Trump’s financial records. The first—actually two cases consolidated by the Court—concerned congressional subpoenas served by three different House committees. The other involved a subpoena served by the New York District Attorney. The cases are now pending at the Court and likely will be among the last cases decided this term.
A Profile of John J. Gleeson, the Trial Court’s Proposed “Friend Of The Court” in the Michael Flynn Case
In the topsy-turvy world of the Justice Department during the Trump era, the Department is seeking the dismissal of a case against a defendant, Michael Flynn, who twice has pleaded guilty but never was sentenced. Michael Flynn, President Donald Trump’s first national security advisor, pleaded guilty in December 2017 to making false statements to the FBI about conversations he had with Russia’s ambassador to the United States during the transition to President Trump taking office.
President Trump Clashes with Legal Oversight in Three Cases to be Argued at the Supreme Court
As the Supreme Court prepares to hear oral argument in perhaps its most important separation of powers cases of the term, we wait, yet again, to see which Chief Justice John Roberts will show up. Will it be the Chief Justice Roberts who is playing the long game with his reputation, the jurist with an eye towards history?
Seila Law LLC v. Consumer Financial Protection Bureau: The Supreme Court Considers Whether an Independent Agency with a Single Director Who Can Be Removed Only “For Cause” is Constitutional
In Jeopardy format, here is the two-part answer to the question about the case to be discussed in this article: One, after then-Judge Brett Kavanaugh dissented on the issue currently before the Court when he was a member of the United State Court of Appeals for the D.C. Circuit and then was elevated to the Supreme Court; and, two, when the government agrees with the petitioner’s constitutional challenge to the structure of the regulatory agency.
Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court
Justice John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years (Little Brown and Company 2019) When John Paul Stevens died in mid-July, the nation not only mourned the death of a great justice, it also acknowledged the passing of an era on the Supreme Court.
Herman Melville’s Billy Budd: Why this Classic Law and Literature Novel Endures and Is Still Relevant Today
This year marks the bicentennial of Herman Melville’s birth. Melville, author of Moby Dick; or The Whale, is one of our nation’s greatest writers. However, when the 72-year-old Melville died in 1891, he had only a modest literary reputation. In fact, he “had been out of public view for so long that The New York Times identified him as Henry Melville,” writes Professor Christopher Benfey. Early in the 20th century, Melville’s reputation enjoyed a revival.
What the FBI Knew: The Case Against the Rosenbergs From the Investigators’ Perspective
Howard Blum, In the Enemy’s House: The Secret Saga of the FBI Agent and the Code Breaker Who Caught the Russian Spies (HarperCollins 2018). This summer marked the 65th anniversary of the deaths of Julius and Ethel Rosenberg. The Rosenbergs, husband and wife, were indicted in 1950 for conspiring to pass atomic secrets to the Soviet Union, tried and found guilty a year later, sentenced to death, and ultimately executed in Sing Sing Prison in 1953.
Justice Kennedy’s Civil Procedure Legacy
As we head into the confirmation hearings for Justice Anthony Kennedy’s replacement on the Supreme Court, something of a consensus has formed about his legacy. As Professor Jack Goldsmith succinctly summarized: Given their political significance, it is no surprise that public focus has been on Justice Kennedy’s views on gay marriage, abortion, and the death penalty.
The Soda Ban or the Portion Cap Rule? Litigation Over the Size of Sugary Drink Containers as an Exercise in Framing
Among the most controversial actions taken by a municipality in recent years was the attempt by New York City to restrict restaurants, movie theaters, and other food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. The City adopted the rule to address rising rates of obesity. The measure received extensive news coverage, drew dueling newspaper editorials, and thus far has been blocked by litigation.
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