Search

INTRODUCTION 1382 I. THE PROBLEM WITH THE BURGER COURT 1384 II. THE ROOTS OF THE HARLAN COURT 1386 A. Cohen v. California 13877 B. Bivens v. Six Unknown Named Agents [...], Walter Dellinger shared the widespread perception that the Burger Court was characterized by "rootless activism" rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger's idea and its relevance today. The "Harlan Court" of Dellinger's imagination would have reached its decisions through opinions that generally built on the legacy of the Warren Court by the logical development of precedent, a refusal to practice the Burger Court's frequent tactic of obliquely undermining or underenforcing decisions a majority disapproved, and a commitment to persuading the reader's judgment rather than imposing judgments by rhetorical fiat. Dellinger thought the characteristics of the "Harlan Court" he imagined were equally valuable to correctly identifying the most common error he saw in early twenty-first century constitutional law: the belief or assertion that difficult constitutional issues can be resolved through some method of decision that avoids the exercise of judgment by the decision-maker.

INTRODUCTION 1321 I. ACADEMIC LAWYERS VS. GOVERNMENT LAWYERS 1323 II. THE GOVERNMENT LAWYER'S DUTY TO EXPLAIN 1329 III. "BEST VIEW OF THE LAW" VS. BEST PRINCIPLES 1331 IV. RESPECT 1332 [...], Walter Dellinger was one of the most effective lawyers ever to work in the United States government. He was also a natural mentor, which made him a source of joy and wisdom for generations. In remembering Walter, we should recall his wisdom regarding the difference between academic and government lawyers, the government lawyer's duty to explain, and the human qualities that,4 over a storied career, earn lawyers genuine affection and respect.

I. MAY 17, 1954 1429 II. BALCONY RESERVED FOR WHITE SPECTATORS 1434 III. SLAVERY AND THE CONSTITUTION 1437 IV. BROWN AND THE FAILURE OF CONSTITUTIONAL FORMALISM 1440 V. EPILOGUE 1446 [...], The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger's unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work--his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling. Note: The excerpts have been lightly edited, reordered, and notated in order to fit into a law review format.

INTRODUCTION 1412 I. THE PRESIDENT AND JUDICIAL SUPREMACY 1414 II. PRESIDENTIAL AUTHORITY TO DECLINE TO FOLLOW SUPREMIE COURT 1419 OPINIONS--A HYPOTHETICAL MEMO III. VARIETIES OF RESISTANCE 1425 INTRODUCTION In his [...], Walter Dellinger's 1994 Memorandum Opinion for the Office of Legal Counsel ("OLC") defining when the President may decline to enforce a law of Congress remains one of his lasting contributions to the theory and practice of the separation of powers. Despite articulating a departmentalist vision for relations between the political branches, however, the Memo accepts judicial supremacy as a given. It emphasizes that the Supreme Court has the final word on contested constitutional questions and that enforcement judgments must hew to judicial doctrine. For decades, scholars, officials, and advocates of various ideological stripes have challenged judicial supremacy, even as it has remained central to executive branch practice. Typically, these challenges underscore the authority and even primacy of Congress, the representative legislature, over constitutional meaning. But some critics have called on the President to reject judicial dominance, too. In this tribute to Dellinger's storied life and career, I offer a hypothetical follow-up opinion to his 1994 Memo, entitled Presidential Authority to Decline to Follow Supreme Court Opinions. I suggest how OLC might define the circumstances under which it would be permissible for the Executive to continue enforcing a law that the Supreme Court has declared unconstitutional on the ground that the Court got it wrong. Even for those who would regard such a call as implausible or dangerous, the varieties of resistance available to the President and the Executive Branch warrant attention as part of the larger debate over whose province and duty it is to say what the law means.

INTRODUCTION 1403 I. WALTER'S LEADING QUESTIONS 1404 II. WALTER'S HUMILITY 1407 III. INSPIRING INTELLECTUAL CURIOSITY 1408 CONCLUSION 1410 INTRODUCTION I never took a course from Walter Dellinger, but I learned [...], In this short Essay, Professor Michael Gerhardt shares the ways in which Walter Dellinger was an exemplary teacher. As Professor Gerhardt explains through several interactions, Walter Dellinger's humility, intellectual curiosity, and insights were inspiring and contagious.

The path of constitutional law is not marked only by judicial decisions. It is framed by the litigants who present their arguments before the courts. It is constructed by the [...]

During the years 1981-86 the University of North Carolina School of Law was privileged to claim among its faculty Harry Edward Groves, who had been recruited by then-dean Kenneth Broun [...]

The University of North Carolina School of Law, blessed by over 10,000 living alumni, cannot readily offer tributes in the pages of its North Carolina Law Review to each graduate [...]