Supreme Court cites four Notre Dame Law professors in one day

Author: Denise Wager

Four Notre Dame Law School faculty members were cited in U.S. Supreme Court decisions on Thursday.

Professors Stephanie Barclay, Gerard Bradley, and Vincent Phillip Muñoz were cited by Justice Samuel Alito in the religious liberty case Fulton v. City of Philadelphia, while O’Toole Professor of Constitutional Law Anthony J. Bellia was cited by Justice Neil Gorsuch in the human rights case Nestle v. Doe.

In Fulton v. City of Philadelphia, the court ruled unanimously that the city of Philadelphia’s refusal to contract with Catholic Social Services for foster care services unless Catholic Social Services agreed to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.

Alito filed a concurring opinion to the majority decision in which he said the ruling leaves religious liberty in a vulnerable state and provides no guidance regarding similar controversies in other jurisdictions. He cited two articles by Barclay, a First Amendment scholar who directs Notre Dame Law School’s Religious Liberty Initiative: The Historical Origins of Judicial Religious Exemptions and Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, a piece co-authored with Mark Rienzi, Catholic University of America Columbus School of Law.

Alito also cited Bradley’s article, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, and Muñoz’s research, The Original Meaning of the Free Exercise Clause: The Evidence From the First Congress.

In the case of Nestle v. Doe, plaintiffs claimed Nestle knowingly bought cocoa beans from farms in Africa that used child slave labor. The court ruled 8-1 that the Alien Tort Statute, which permits foreign citizens to sue in U.S. courts for human rights abuses, cannot be applied in this case.

Gorsuch cited Bellia’s article, The Alien Tort Statute and the Law of Nations, co-authored with Bradford R. Clark, George Washington University Law School, to make two points in a concurring opinion. One, the majority decision does not make corporations immune from suit under the statute, and two, courts do not have discretion to create new causes of action under the statute.

This is the fifth time in the past two weeks that a Notre Dame Law School faculty member has been cited in a Supreme Court decision. On June 3, the majority 6-3 decision written by Supreme Court Justice Amy Coney Barrett in Van Buren v. United States, cited William J. and Dorothy K. O'Neill Professor of Law Patricia Bellia’s research,  A Code-Based Approach to Unauthorized Access Under the Computer Fraud and Abuse Act.

Originally published by Denise Wager at law.nd.edu on June 18, 2021.