The Roberts Doctrine and DOMA

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Brett Bellmore says:

    There wasn’t any saving interpretation for McCain/Feingold; It wasn’t something Congress could have done through some constitutional means, and Roberts just had to rationalize that the means actually chosen might as well have been that means. It was a direct assault on a basic civil right, freedom of speech.

    But, who knows how far Roberts will be able to bend backwards when his yoga classes are done. He might eventually find it in himself to approve of even political censorship.

  2. Shag from Brookline says:

    I understand Brett incorporated himself to prove he’s a person. We know of the silence of the lambs. Until recently (Citizens United 5-4 2010) corporations were silent (somewhat). Up to that point the inhumanity suffered by this ” … direct assault on a basic civil right, freedom of speech.” Hallelujah, hallelujah, free at last! I wonder how far Brett will be able to bend backwards with the upcoming demographics.

  3. Joe says:

    So, they will find a savings mechanism, except when they don’t. I think the sample size might be too small to determine what they will do.

    I think they can sever @3, which is the point of contention. Kennedy might go along this time, since he supports gay rights. The government had more than one string in its PPACA bow. Not sure how that applies here.

    CU could have been decided on narrow grounds & even if one thinks it was correct on its merits, I personally think it should have been done more slowly. The law was not totally tossed anyway since disclaimer and disclosure laws were held not to be unconstitutional. As applied to foreigners, the USSC also summarily affirmed regulations.