• Professor Christopher Schmidt

    Christopher W. Schmidt

    Assistant Professor of Law

    – Go to his faculty biography

    – Go to his publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/christopher_schmidt/

    A Modest Proposal

    by  • November 12, 2014 • Faculty Commentary • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [Reposted from ISCOTUSnow]


    Supreme Court justices love to talk about the importance of public engagement. The American people, they insist, need to understand what the Court does and why. They write books and articles, deliver lectures, and give interviews, often with the express intention of informing the public about the Court’s work. Yet when it comes to actually reforming the way the Court operates to better serve these goals, the members of the Supreme Court sing a different tune. They hold tight to traditional practices, such as their process of releasing opinions, that make press coverage of the Court a uniquely challenging task. Not only do the justices refuse to allow cameras in the courtroom, but they delay release of audio of oral arguments until the end of each week and audio of opinion announcements until the beginning of the following Term.

    While I think all of these practices should be reconsidered, for most of them I can see that there are some arguments on the side of tradition. (For a terrific discussion of these issues, see the video of this year’s Constitution Day event at Chicago-Kent.) But that last one—the delay of releasing audio of opinion announcements for several months—is pretty much indefensible. What possible purpose does this policy serve? In justifying their refusal to allow any live broadcast (video or audio) of oral arguments, the justices often talk about their fear of the media reducing complex points to misleading sound bites or of grandstanding by lawyers and justices. The sound-bite concern is minimal in the context of opinion announcements, though. The justices are summarizing their written opinions, so they have already taken the sound-biting into their own hands. Any possible risk of selective quotation would seem to be the same, or even less, than the risk of improperly quoting an excerpt from their written opinion. As for judicial grandstanding, I just have trouble seeing this as a problem. If anything, as I have noted in previous ISCOTUS posts, the justices tend to tone down some of the more accusatory language from their written opinions when reading a dissent from the bench. Anyway, a bit of grandstanding would not be a bad thing if one of the goals of an opinion announcement is to convey the importance of the issues at stake.

    (more…)

    Hobby Lobby, Corporations & Constitutional Rights

    by  • July 1, 2014 • Faculty Commentary • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [reposted from ISCOTUSnow]


    Case: Burwell v. Hobby Lobby Stores (formerly Sebelius v. Hobby Lobby Stores)

    Yesterday’s decision in the Hobby Lobby case offers yet another chapter in the still-unfolding story of the extent to which corporations are “persons” for purposes of claiming constitutional rights. Judicial recognition that corporations might claim constitutional rights has a long history, dating back to the late nineteenth century. In recent years, the Supreme Court has sparked renewed attention to the issue, most notably with its 2010 decision in Citizens United in which a 5-4 majority held that certain campaign funding restrictions violated the First Amendment free speech rights of corporations.

    In the Hobby Lobby case, one of the government’s arguments in defending the challenged contraception coverage of the Affordable Care Act was that the plaintiffs lacked the standing to even make this kind of religious freedom claim. Only Justices Ginsburg and Sotomayor bought that argument (Justices Breyer and Kagan did not join that section of Justice Ginsburg’s dissent in which she challenged “the notion that free exercise rights pertain to for-profit corporations”).

    Justice Alito, in his Opinion of the Court, insisted that when Congress passed the Religious Freedom Restoration Act of 1993, it “employ[ed] a familiar legal fiction: It included corporations within RFRA’s definition of ‘persons.’” He went on to explain that “the purpose of this fiction is to provide protection for human beings.”

    A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

    He then listed as an example the value of allowing corporations to make Fourth Amendment claims, which “protects the privacy interests of employees and others associated with the company.” Similarly, the Fifth Amendment’s protection against government takings of property without just compensation “protects all those who have a stake in the corporations’ financial well-being.” (Notably missing from this list, of course, are the free speech rights of corporations that the Court used to justify its controversial Citizens United ruling. The only mention of that case in the Hobby Lobby opinions is Justice Ginsburg’s approving quotation of Justice Stevens’ Citizens United dissent, in which he wrote that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”) For Justice Alito, the same reasoning that justifies allowing corporations to make Fourth and Fifth Amendment claims justifies allowing them to make free-exercise claims. For in making such claims, a corporation can provide protection for “the religious liberty of the humans who own and control those companies.”

    Breyer and Scalia’s Debate in NLRB v. Noel Canning

    by  • June 27, 2014 • Faculty Commentary • 0 Comments

    Schmidt_Chris thumb By Christopher Schmidt [reposted from ISCOTUSnow]


    Case: National Labor Relations Board v. Noel Canning

    Although Justices Breyer and Scalia ended up on the same side in yesterday’s landmark decision on the President’s recess appointment power, they offered starkly opposing views on the question of whether the past practice of the executive can resolve this constitutional question.

    In his Opinion of the Court, Justice Breyer emphasizes early in the opinion that “in interpreting the [Recess Appointments] Clause, we put significant weight upon historical practice.” For support for this, he offers lengthy quotations from McCulloch v Maryland (1819) and from an 1819 letter written from James Madison to Spencer Roane in which he writes that it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter… and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” From these and other sources, Justice Breyer concludes: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” With regard to the question before the Court, he writes: “We have not previously interpreted the [Recess Appointments] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”

    Justice Scalia accepts that basic premise that established practice can inform the Court’s interpretation of ambiguous constitutional provisions. But he insists upon a higher threshold for what actually constitutes established practice. He writes: “Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision” (emphasis added). The recess appointment practice challenged in this case does not meet this incredibly demanding threshold, however. “Plainly, then, a self aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.”

    Justice Scalia accuses Justice Breyer of “cast[ing] aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.” Finding historical practice fails to resolve the constitutional question, he turns to his preferred grounds of constitutional interpretation of “text, structure, and original understanding.” The two Justices end up in the same place on this particular constitutional dispute, although they chart quite different paths getting there.

    A Look Back at Loving v. Virginia

    by  • June 13, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    Thursday marked the 47th anniversary of Loving v. Virginia, the Supreme Court decision striking down bans on interracial marriage in sixteen states. The case was argued on April 10, 1967, and announced just two months later, on June 12.

    Looking back at the oral arguments in the case, several points stand out. First, the momentum in the case was clearly on the side of those challenging the offensive laws. The winds of change were behind them, and the Justices were clearly with them. Philip J. Hirschkop, the ACLU lawyer who made the equal protection argument for the challengers (another lawyer made the due process argument) spoke with almost no interruption from the bench. His central argument was stark and direct. “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law,” he told the Justices. He later made the point more concisely: “These are slavery laws pure and simple.” Hirschkop also compared the law to the policies of Nazi Germany and South Africa. Those who passed these laws “were not concerned with the racial integrity,” he argued, “but racial supremacy of the white race.”

    When Virginia’s assistant attorney general defended his state’s anti-miscegenation policy, by contrast, he faced an engaged and skeptical bench. Chief Justice Earl Warren and Justice Hugo Black were particularly aggressive. Virginia’s legal defense had two prongs. Its primary argument was based in history. The framers of the Fourteenth Amendment did not intend it to prohibit these kinds of regulations, and therefore the Court should not read it to do so. (The challengers countered that the proper originalist analysis should not focus on the narrow intentions of the framers but on the more general purposes of the Amendment.) Virginia’s lawyer knew that this was his strongest line of argument and he spent most of his time elaborating on it. The problem here—as he surely knew—was that he was talking to a Court that simply did not feel constrained by these kinds of arguments.

    Virginia’s second line of defense was that the state had a rational basis for its policy. These were the arguments that led Chief Justice Warren and Justice Black to lash out at the attorney. The core of this argument, in the words of the assistant attorney general, was that according to “the most recent available evidence on the psycho-sociological aspect of this question … intermarried families are subjected to much greater pressures and problems then those of the intramarried.” For this reason, Virginia’s “prohibition of interracial marriage … stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.”

    In challenging these kinds of claims that anti-miscegenation policy was intended to promote social welfare, Chief Justice Warren looked back to the Brown v. Board of Education decision he had written thirteen years earlier. “[D]idn’t we in the segregation cases have also argued to us what was supposed to be scientific evidence to the … effect that whites would be injured by having to go to school with … the Negroes?” he asked. In response, Virginia’s lawyer insisted that with regard to miscegenation, the scientific evidence is “voluminous in its character” and it “supports the view not of racial superiority or inferiority, but a simple matter of difference.” Warren at one point noted that the list of states that had school segregation laws in 1954 and the states that have miscegenation laws in 1967 was nearly identical. At the conclusion of the lawyer’s presentation, instead of the Chief Justice’s traditional “thank you,” a clearly disgusted Warren could only muster a dismissive “I see.” (more…)

    Why Brown v. Board of Education Disappoints—And Why That’s Not All Bad

    by  • May 20, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    Brown v. Board of Education, the Supreme Court’s landmark 1954 school desegregation ruling, turned 60 this past week. This anniversary was much like previous ones, equal parts commemoration and lamentation. If there is a consistent theme to Brown anniversaries over the years, it is this: Brown promised much, but only partially delivered. Brown is a chronic underachiever. From the day it was announced, the Brown decision has been a repository of unmet expectations. Brown has always been both inspiration and disappointment. Indeed, they are two sides of the same coin.

    When Chief Justice Warren announced the Court’s ruling on May 17, 1954, civil rights activists embraced the momentous event with an outpouring of optimism. Thurgood Marshall, the NAACP lawyer who led the battle against segregation in the courts, predicted that within five years schools across the South would be desegregated. Walter White, NAACP executive director, told a mass meeting of civil rights activists: “If I had the skill of the artist, I would build a picture of the nine justices of the Supreme Court and of decent Americans, both Negro and white, marching forward with head high and shining eyes toward democracy.” In the rear of the picture, White continued, would be “three or four pathetic figures” who were “weeping and screaming, ‘I won’t let it happen!’” History was going to leave behind this “shrinking minority” of diehard segregationists.

    But reality came up far short of these inspired visions of a post-Brown future. In fact, Brown’s early performance came up short of even the most cautious of prognostications. (more…)

    Justice Sotomayor’s First Oral Dissent

    by  • April 28, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    Last Tuesday, for the first time in her five years on the Supreme Court, Justice Sotomayor read a dissent from the bench. This was in Schuette v. Coalition to Defend Affirmative Action, the case in which the six-justice majority upheld Michigan’s ban on racial preferences in its public universities. Oral dissents, as a relatively unusual occurrence, can generate increased attention to a dissent. And a justice’s first oral dissent can be a particularly notable event. For example:

    • Justice Scalia’s first oral dissent came in Morrison v. Olson (1988), a 7-1 ruling in which the Court upheld the law creating an independent counsel. Justice Scalia recently referred to this decision upholding “a terrible erosion of presidential power” as his most “wrenching” case.
    • Justice Breyer’s first bench dissent came in United States v. Lopez (1995), decided during his first term on the Court. In Lopez the Court, for the first time since the New Deal, struck down a federal law as beyond the reach of the Commerce Clause.
    • Justice Thomas liked the idea of an inaugural oral dissent so much that he tried to do it twice. His first bench dissent came in Stenberg v. Carhart (2000), in which the majority struck down Nebraska’s “partial-birth abortion” ban. Then, six years later, he opened his oral dissent in Hamdan v. Rumsfeld, a case involving the rights of prisoners held at Guantanamo, by announcing that it was the first time he had ever read a dissent from the bench.

    That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench. (more…)

    Lies and the First Amendment

    by  • April 22, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    This post on United States v. Alvarez is part of ISCOTUS Director Chris Schmidt’s “Drama in the Court” series.

    Today the Supreme Court will hear oral arguments in Susan B. Anthony List v. Driehaus, a First Amendment challenge to an Ohio law that prohibits intentionally false statements about political candidates. The case itself presents the basic free speech question only obliquely. The central issue before the Court is a technical one: whether a party can even go to court to challenge this kind of law prior to being prosecuted for violating that law. This is a question, in other words, of whether the plaintiff has “standing” to make the First Amendment challenge. But the underlying constitutional question—whether the First Amendment permits the regulation of blatant lies in political campaigns—will surely be part of the tomorrow’s oral argument.

    The First Amendment status of lies is not a new issue for the Roberts Court. It was at issue before just two years ago in United States v. Alvarez, a case involving a small town public official who liked to tell stories about himself. In describing his background at a local water board meeting, Xavier Alvarez described himself as a retired marine who had won the Congressional Medal of Honor. This was a bald-faced lie. Alvarez had never even served in the military. It was, as the Court would describe it, “a pathetic attempt to gain respect that eluded him.” Alvarez was charged with violating the Stolen Valor Act of 2005, a federal law that prohibited falsely claiming military decorations or medals. Alvarez challenged the law as infringing his First Amendment right to free expression.

    The Supreme Court sided with Alvarez. Justice Kennedy, writing for a 6-3 majority (although his reasoning had only four votes), rejected the Justice Department’s contention that lies receive no protection under the First Amendment. As content-based speech restrictions, lies must be held to the most exacting demands of the First Amendment. “Some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee,” wrote Justice Kennedy.

    By looking back at oral argument in Alvarez, we can find a couple of fascinating moments that may help illuminate the issues the Court will consider tomorrow in the Susan B. Anthony List case. (more…)

    The Right to Discriminate in Historical Perspective

    by  • April 9, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    Earlier this week, the U.S. Supreme Court denied certiorari in a New Mexico case involving a photography business that refused to take pictures at a same-sex commitment ceremony. This act of discrimination, according to the state human rights commission, ran afoul of the New Mexico public accommodations law. The couple who owned the photography company claimed that a legal requirement to serve same-sex customers in this context infringed their First Amendment rights. Their argument, in essence, was that in certain circumstances they had a right to discriminate.

    These kinds of claims of a right to discriminate have a long history in this country, although they have been conspicuously unsuccessful in the U.S. Supreme Court. As far as I can tell, the first time the Supreme Court squarely faced the question of whether an anti-discrimination law unconstitutionally infringed someone’s individual liberty was in 1945. Railway Mail Association v. Corsi involved a New York state law that prohibited racial discrimination in unions. A union of postal clerks claimed that this law infringed their property and liberty of contract rights, as well as their “social rights.”

    “There will always be discriminations,” the union’s brief explained. “We discriminate in the method of our religious worship. We discriminate in the choice of our friends. We differ in our tastes and likes, and yet nothing can be done about this for it is beyond regulation in the absence of a binding grant from us to our form of government…. This is a personal and constitutional right beyond the power of legislation.” The Supreme Court summarily rejected this argument as having “no constitutional basis.” After Corsi, this basic premise, that the Constitution does not protect an individual’s right to discriminate, was repeatedly reaffirmed in the courts, always in similarly summary fashion. (more…)

    How Tax Law Made America Modern

    by  • February 7, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from Legal History Jotwell]


    Reviewed in this post: Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929 (2013).

    Ajay Mehrotra’s new book, Making the Modern American Fiscal State, describes how the United States in the late nineteenth and early twentieth centuries transformed the way it taxed its citizens and thereby laid the foundation for new forms of governance and new sensibilities about the network of civic obligations that bound the nation together. This is a truly impressive work of legal historical scholarship—thoroughly researched, well written, and powerfully argued. Mehrotra also offers a masterful demonstration of scholarly synthesis, artfully weaving together an intricate tapestry of economics, politics, law, and social history.

    At the heart of Making the Modern American Fiscal State is a revolution in American tax practices. Prior to the twentieth century, the national government raised revenue through a system of import duties and regressive excise taxes that were “indirect, hidden, disaggregated, and partisan.” (P. 6.) By the end of the story, in the wake of World War I and on the cusp of the New Deal, a much different taxing regime was in place. It was a progressive system that was “direct, transparent, centralized, and professionally administered.” (P. 6.) While prior forms of taxation drew on a premise of a quid pro quo exchange between citizen and government—citizens put money into the system and received certain benefits in return—the new form of taxation challenged this atomistic “benefits” theory and emphasized instead a thicker sense of national community and responsibility. Taxes were assessed on a principle of one’s “ability to pay.” This approach, Mehrotra explains, “promoted an active role for the positive state in the reallocation of fiscal burdens, the reconfiguration of civil identity, and the rise of administrative authority.” (P. 10.) The rise of the modern fiscal state, built on this transformation in taxing policy was, in Mehrotra’s account, a radical change in policy with lasting effects on American statecraft and society. (more…)

    Hypotheticals Gone Wild—A Look Back at Oral Arguments in Navarette v. California

    by  • February 4, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    This one was a bit crazy from the start. One just senses that Chief Justice Roberts was sitting there as the first lawyer kicked off oral argument, tapping his foot impatiently, counting the seconds before a respectable amount of time had passed so he could pounce with his wild hypothetical.

    The case of Navarette v. California involved a driver the police pulled over based on suspicion of drunk or reckless driving. The police did not witness the reckless driving. They were relying on information received from another driver who claimed the pickup truck in question had run the anonymous caller off the road. The legal question at issue was whether the phone tip alone, without corroborating evidence, could provide the reasonable suspicion required for the traffic stop. Fortunately for the stopped driver here, the stop did not result in an arrest for drunk or reckless driving. Unfortunately for him, it resulted in an arrest for four large bags of marijuana in the back of the truck.

    Let’s return to oral arguments at the Supreme Court, which took place last week. The driver’s lawyer was all of 53 seconds into his argument of the need for independent police corroboration of anonymous tips before making a traffic stop when the Chief Justice stepped in. Then the bombs started flying. (more…)