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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 Board of Editors of the South Dakota Law Review is pleased to dedicate Volume 69 to Dean and Professor Emeritus Thomas Earl Geu. Thomas Earl ("Tom") Geu grew up [...]

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 [...]

This volume of the annual ILEP law review symposium honors Joel Seligman, whose influence on the field of corporate and securities law has been immense, and whose efforts with Ed [...]

I am particularly pleased to be able to participate in this Festschrift honoring Dan Mandelker because for many years I found myself outside the Mandelker "circle." When I began teaching [...]

In 1966, I was barely out of law school and teaching my first land-use controls class at the University of Kentucky. In October, my upstairs neighbor, a first-year architecture and [...]

It is my privilege to contribute a comment in honor of Professor Mandelker's Festschrift. Over the thirty some years that I personally have known and worked with him, like many [...]

I. Opening Comment Dan Mandelker has had a unique relationship with each author in this Festschrift volume of The Urban Lawyer. But for all of us, a common factor has [...]

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When I spoke at the Festschrift for Dan Mandelker on September 28, 2022, I realized that my interactions with Prof. Mandelker were a bit less scholarly, but still no less [...]

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The first time I saw the name "Dan Mandelker" was in 1984 at a university bookstore in Ann Arbor, Michigan. Dan and Roger Cunningham co-wrote the casebook that the late, [...]

I am delighted to be here honoring Dan Mandelker because he played such an important--I might even say pivotal--role in my professional life. My major problem with talking about Dan [...]

Have you read Dan Mandelker's curriculum vitae (CV)? If you intend to do that, get yourself a comfortable chair and be ready to spend some considerable time perusing the seventeen-page, [...]

The Board of Editors of the South Dakota Law Review is pleased to dedicate Volume 67 to Professor Emeritus David S. Day. David S. Day was born in Iowa in [...]

On November 6, 2020, Jost Delbruck--the renowned scholar, author, and teacher of public international law who spent almost his whole academic life commuting between the Law School of Kiel University [...]

The Board of Editors of the South Dakota Law Review is pleased to dedicate Volume 66 to Professor Emeritus Jonathan Van Patten. Jon Van Patten was born in Los Angeles, [...]

The more I think of the sudden loss of our dear friend and colleague, Tom Horton, the more I am reminded of the poem "To An Athlete Dying Young" by [...]

I. INTRODUCTION On July 19, 2020, the Loyola New Orleans College of Law lost a dear and distinguished member of our faculty, Professor of Law and former Interim Dean Kathryn [...]

My relationship with Professor Yiannopoulos is longstanding. (1) I took the first course that he taught at LSU Law School in 1962. Before teaching that course, Professor Yiannopoulos was a [...]

On April 12, 2018, with the passing of Professor Jeffrey Wittenberg, Suffolk University Law School lost one of the finest and most beloved and revered professors to have graced its [...]

Burns H. Weston, a valued international law faculty member at the University of Iowa College of Law, died unexpectedly on October 28, 2015 in Iowa City, Iowa. All who knew [...]

JUSTICE JOHN K. KONENKAMP JOINT DEDICATION The Review is honored to jointly dedicate Volume 60 to Justice John K. Konenkamp, who is retiring after twenty years of service on 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 [...]

I want to welcome all of you to Columbia Law School, and to the fourth annual Symposium hosted by the Center for Gender & Sexuality Law. Some of you might [...]

Over the decades, the Queen's Faculty of Law has had many debates and discussions about curriculum reform and pedagogy. For the most part, Ron Delisle would sit quietly, listening to [...]

Ron Delisle passed away on March 12, 2013 with dignity after a brave struggle with illness. It is a privilege as his friend and colleague for some thirty-eight years to [...]

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 [...]

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I do believe that I am my brother's and sister's keeper. I do believe we can make the world a better place for our children and grandchildren, and that we [...]

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The Washington Law Review dedicates its October 2012 issue to Professor Richard O. Kummert who passed away last April at the age of seventy-nine. Professor Kummert served as the faculty [...]

We end this valedictory volume with some reminiscences by Dr George Barton QC himself. They were written at the request of Sir Elihu Lauterpacht at the time he was preparing [...]