• 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/

    The Complexity of Consensus on the Supreme Court

    by  • January 31, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from H-Net Online]


    Reviewed in this post: Pamela C. Corley, Amy Steigerwalt, and Artemus Ward, The Puzzle of Unanimity: Consensus on the United States Supreme Court (Stanford University Press, 2013)

    Many of the most notable recent Supreme Court decisions have been sharply divided affairs, usually involving predictable configurations of conservative and liberal justices glaring across a vast chasm of ideological differences. The majority and dissenting opinions in cases such as last term’s decisions on the Voting Rights Act and the Defense of Marriage Act reflect such fundamentally opposing judicial worldviews that it can be hard to imagine their authors agreeing on much of anything of importance. Yet these 5-4 decisions, which capture the attention of the public and scholars alike, reflect only a fraction of the docket of the nation’s highest court. As the justices often remind audiences when writing or speaking about their work, they actually agree with each other quite often. Approximately one-third of all decided cases in recent terms have been unanimous. If we add those decisions in which only a single justice dissented, we find a majority of cases in recent terms have been either unanimous or nearly unanimous. Why does this happen? How can a court that is so polarized on many of the most foundational legal and constitutional questions come together with such regularity? This is the question explored by political scientists Pamela C. Corley, Amy Steigerwalt, and Artemus Ward in The Puzzle of UnanimityConsensus on the United States Supreme Court.

    The answer they provide to this motivating question is intuitively persuasive, if perhaps rather anticlimactic. Their answer, in a nutshell: it is complicated. Explaining the prevalence of unanimous and near-unanimous decisions requires attention to numerous factors—the ideology of the justices, strategic considerations, and constraints of law and legal norms, among them—with certain factors playing more or less of a role in different circumstances. “Rather than single out a specific group of factors as the primary explanation for consensus, we argue that various potential influences all operate in each case and many times, in complex interactive fashion” (p. 6). (more…)

    Constitutional First Principles on Display: A Look Back at Oral Arguments in NLRB v. Noel Canning

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

    By Christopher Schmidt [reposted from ISCOTUSnow]


    Last week’s Supreme Court oral arguments on the President’s recess appointment power was absolutely fascinating. National Labor Relations Board v. Noel Canning might seem on the surface a rather dry, technical case. But it has potentially dramatic implications. (Here is my colleague Carolyn Shapiro’s excellent summary of the case and its possible implications.) And, as the oral arguments showed so well, the case puts on fine display some of the most fundamental of questions relating to constitutional interpretation. These questions about the relationship between text, history, and established practices often lurk in the background when the Supreme Court considers major constitutional issues, but in this case they are uniquely foregrounded.

    Now, thanks to the wonder that is Oyez, we can easily listen to audio of the oral argument. Here are some of the highlights of this highly engaging session in the Supreme Court. (For a more comprehensive overview of the oral arguments, you can listen to the complete audio here or take a look at the always terrific “plain English” summary prepared by Amy Howe over at SCOTUSBlog.)

    The action was lively right from the start of Solicitor General Donald Verilli’s argument. The first topic was whether a ruling striking down the Obama Administration’s use of the recess appointment power would require revisiting all the decisions made by recess appointees, including judges. Justice Scalia, after weighing in on this point (“You don’t really think we’re going to go back and rip out every decision made.”), turned the discussion to the question of constitutional interpretation. He laid out what he characterized as a “stark question”: “What do you do when there is a practice that … flatly contradicts a clear text of the Constitution? Which … of the two prevails?” Listen to the exchange here: (more…)

    Pork Chops and Privacy: Looking Back at Oral Arguments in Smith v. Maryland

    by  • January 14, 2014 • Faculty Commentary • 0 Comments

    By Christopher Schmidt [reposted from ISCOTUSnow]


    The precedent that looms over the legal challenges to the NSA’s massive phone data collection is the 1979 case of Smith v. Maryland. The issue before the Supreme Court in Smith was whether the police’s use of a pen register—a device that identifies the numbers dialed from a particular phone—constituted a search under the Fourth Amendment and therefore required a warrant. Michael Lee Smith had been convicted of robbery based on evidence from a police investigation that relied on information secured from a pen register, for which the police had no warrant. The Court held, 5-3, that because an individual had no reasonable expectation of privacy with regard to the phone numbers one dials (as opposed to the contents of the call—see Katz v. United States (1967)), the collection of these numbers was not a search for purposes of the Fourth Amendment and so no warrant was needed. Smith’s conviction was upheld.

    Some observations about the oral arguments:

    First, this was a notably lively argument. The lawyer defending Smith was only two sentences into his argument when then-Justice William H. Rehnquist jumped in. There are several extended exchanges with the lawyers and the justices in which no one is getting more than a sentence or two out at a time. (Unlike today’s “hot” bench: The justices back in 1979 seemed far less interested in hearing their voices. The judicial monologues and extended hypotheticals that are commonplace in today’s oral arguments were largely absent in Smith.)

    Second, Smith’s lawyer, Howard L. Cardin, did not have a good day. When Justice Rehnquist offered an argument supporting his case, he struggled to recognize it as a gift. He later he got into a kind of standoff with an irritated Justice Thurgood Marshall on a technological question, which culminated with Marshall declaring the lawyer wrong on his facts and urging him to stick with the record of the case.

    And then there were the pork chops. One of Cardin’s stronger arguments was an analogy to a maid cleaning a hotel room. “[I]f she’s coming in, performing her duties, and comes across something, that is one situation,” he explained, But if she goes into a hotel room at the request of the police, looking for something suspicious, “then she is operating as the agent of the police department and is not properly on the premises at that time.” Justice John Paul Stevens asked Stephen H. Sachs, Maryland’s Attorney General, if he had a response to the hotel room analogy. This is when the pork chops arrived. (more…)

    Somin on Democracy and Political Ignorance

    by  • October 10, 2013 • Faculty Commentary • 0 Comments

    By Christopher Schmidt


    Today, Ilya Somin, a Professor of Law at George Mason, will be at Chicago-Kent to take part in a symposium on the Supreme Court’s recent decisions in the same-sex marriage cases. Professor Somin is a widely published scholar in the areas of property rights and constitutional law, a frequent commentator on current legal issues in various media outlets, and a regular contributor to the widely-read Volokh Conspiracy blog. Professor Somin is also the author of a brand new book, Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, 2013).

    Democracy and Political Ignorance is a fascinating and provocative work of scholarship. Somin takes as his starting point the fact that most Americans know remarkably little about current political issues or the most basic features of our political system. For anyone who has seen the polling data—or even just watched some political comedy shows—this is not a particularly surprising claim. Somin’s careful and extensive dissection of the phenomenon of popular political ignorance concludes, basically, that it’s worse than you probably think. The real value of the book, however, lies not in its documentation of the lack of political awareness among the American people but in Somin’s analysis of the root causes of political ignorance and his proposals for how constitutional design and policy can best respond to it. (more…)

    C-K Constitution Day–Constitutional Interpretation in the 21st Century

    by  • October 9, 2013 • Faculty Commentary, Faculty Workshops/ Conferences • 0 Comments

    Tomorrow, Thursday, October 10, Chicago-Kent will host a panel discussion on the same-sex marriage cases the Supreme Court decided last June. This event marks the law school’s belated celebration of Constitution Day (Sept. 17). The symposium is funded largely through a grant from the Jack Miller Center’s Constitution Day Initiative. Panelists include Ilya Somin of George Mason University Law School and Chicago-Kent’s own Katharine Baker and Carolyn Shapiro. Professor Steven Heyman will moderate.

    By Christopher Schmidt


    The Chicago-Kent Constitution Day symposium theme—“When Did It Become Unconstitutional for States to Ban Same Sex Marriage?: Constitutional Interpretation in the 21st Century”—comes from a fascinating exchange during oral arguments between Justice Scalia and attorney Theodore Olson in the same-sex marriage cases last March. Olson was arguing on behalf of a group of plaintiffs from California who were challenging Proposition 8, the ballot initiative by which a slim majority of Californians voted to add a same-sex-marriage prohibition to their state constitution. Olson was urging the Court to issue a broad ruling declaring a constitutional right for same-sex couples to marry, but Justice Scalia was not buying his argument. “When did it become unconstitutional to exclude homosexual couples from marriage?” the Justice asked. “1791 [when the Bill of Rights was adopted]? 1868, when the Fourteenth Amendment was adopted?”

    The gist of Scalia’s challenge was clear: The proper way to see if prohibitions on same-sex marriage violated the Fourteenth Amendment’s Equal Protection or Due Process Clauses was to consider whether, at the time of the Amendment’s ratification, these provisions were generally understood to protect the right for same-sex couples to marry. This is the essence of the “original meaning” inquiry to which Scalia subscribes. If the Amendment was not understood to mean this in 1868, it should not be read to mean this in 2013. (more…)

    The Supreme Court’s Final Week: A Brief Assessment

    by  • July 1, 2013 • Faculty Commentary • 0 Comments

    Schmidt_Chris thumbBy Christopher Schmidt


    Looking back at the dramatic final week at the Supreme Court, here is my take on what was expected and what was surprising.

    The expected:

    1. The holdings. The outcomes in the big three issues—affirmative action, the Voting Rights Act, and gay marriage—played out more or less as expected. Affirmative action survived, albeit with sharper limitations (Fisher). The preclearance provision of the Voting Rights Act was gutted (Shelby County). DOMA’s limits on federal marriage benefits were struck down (Windsor); and there will be gay marriage in California but there will not be a national constitutional right to gay marriage (Perry). These outcomes were pretty well telegraphed through recent Court decisions and in oral arguments earlier in the term. On the big questions, I would say there was not much in the way of surprises.

    2. Congress had a bad week at the Court. Putting together the majorities in Shelby County and Windsor, every justice last week went on record harshly criticizing federal legislation passed by strong majorities. The final week of last year’s term ended on a similar note: in the health care opinion, the conservatives described at length the shortcomings of our nation’s elected representatives. (more…)