Professor Dawn Johnsen

  • January 17, 2013

    by Jeremy Leaming

    So a new Pew poll finds a majority of Americans under 30 do not know what the landmark U.S. Supreme Court case, Roe v. Wade was all about. Well this month marks the 40th anniversary of that landmark decision, so maybe a few more of those under 30 will get a clue about a case that advanced liberty for women. They might also learn that Roe has been undercut by subsequent Supreme Court opinions, which have helped state lawmakers create and enact measures making it far more difficult for women to make decisions about their health.

    The opinion issued on Jan. 22, 1973 invalidated a state law banning abortion. A majority of the court led by Justice Harry Blackmun found that the state ban on abortion violated personal privacy. Blackman wrote, in part, that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host a conference examining two landmark Supreme Court cases, one being Roe, that helped advance liberty and equality for minorities. The conference at UCLA called “Liberty/Equality: the View from Roe’s 40th and Lawrence’s 10th Anniversaries,” will include some of the nation’s leading experts on gender, sexuality and equality to examine conflicts that led to the landmark decisions and look at how the current Supreme Court has handled ongoing debate over reproductive rights and equality for the LGBT community (The high court in Lawrence v. Texas invalidated a state law banning sex between consenting adults of the same gender.)

    Dawn Johnsen, an ACS Board Member, will be among the participants at the Constitution in 2020 gathering. Johnsen (pictured), a distinguished law professor at Indiana University Maurer School of Law, authored an ACS Issue Brief in 2008 on the 35th anniversary of Roe. It’s a prescient piece, noting that challenges to reproductive rights were intensifying, partly because of high court decisions that followed Roe, which opened the door to more onerous restrictions on women’s autonomy.

    As noted here recently Reva Siegel and Linda Greenhouse, writing for Balkinization’s Constitution in 2020 conference forum, suggested that a backlash to reproductive freedom was swelling even before Roe was handed down. But in her ACS Issue Brief, Johnsen noted that the setbacks to Roe really got underway with the high court’s 1992 Planned Parenthood v. Casey opinion.

  • July 7, 2011

    With the way the Senate is confirming judges, which is extremely slow due to Republican obstructionism, the federal bench workload will soon be handled primarily by octogenarians, said U.S. Court of Appeals Seventh Circuit Judge Richard D. Cudahy, one of the nation’s leading appellate judges. 

    After being introduced at the 2011 ACS National Convention by ACS Board member and Indiana University law school professor Dawn Johnsen, Cudahy, who has senior status on the Seventh Circuit, took some jabs at the increasingly contentious judicial confirmation process. Cudahy first referenced Johnsen’s nomination by President Obama to lead the Justice Department’s Office of Legal Counsel, which Republicans successfully defeated.  

    “Dawn, as you know is just a fabulous person, a jewel both in head and heart,” Cudahy said. “As you all know she should be occupying at this moment a key role in the justice department. But instead was hung out to dry in a disgraceful exhibition of partisan rancor. That was a tragic loss of fabulous talent I think by our country.

    “And we are apparently facing some of the same kind of problem with my daughter-in-law Victoria Nourse, who is a prodigious legal scholar who has been nominated by the president as a judge on our court,” Cudahy continued. “She faces no objection of substance, but has become entangled in some sort of ambush of newly discovered senate rules, and even denied a hearing.”

    Cudahy added, “The way we are going, it looks to me as if most of the judicial work is going to be done by 80 and 90 year-olds, like me, who are not obviously afflicted with Alzheimer’s, since they will be the only ones left to do anything. I don’t think it’s any coincidence that the most appreciated presentation in our most recent Circuit conference was a lecture by a doctor on Alzheimer’s and other forms of dementia. He provided us with useful information about a subject that really concerns us, and ought to.”

    Nourse was first nominated by Obama to the U.S. Court of Appeals for the Seventh Circuit in 2010 and was approved by Wisconsin’s senators at the time she was nominated. But after Nourse was renominated earlier this year, her nomination has stalled because the state’s newest senator, Ron Johnson has refused to sign off on the nomination, saying that Nourse needs to be reconsidered by the commission.  

    Sen. Ron Johnson, a Tea Party favorite, who defeated the state’s former Sen. Russ Feingold in last year’s midterm elections, has bemoaned the ways of the Senate, recently telling the Milwaukee Journal Sentinel, “I have been here for six months, and the U.S. Senate has accomplished virtually nothing.”

    The Sentinel later noted in the same article, “Johnson has taken a staunch conservative line on judicial appointments, blocking consideration of two Obama court nominees, Louis Butler and Victoria Nourse, and voting against the president’s choices for solicitor general and several judgeships.”

    For more updates and analysis of the president’s efforts to fill the rising number of federal court vacancies, visit

    Video of Judge Cudahy’s comments is available here or by clicking image below.

  • June 23, 2011

    Despite claims about unprecedented intrusion on liberty, the litigation over the landmark health care reform law is really an “effort to change existing doctrine to have courts create and impose a new limitation on Congress’s ability to deal with major national economic problems,” said Indiana University law professor Dawn Johnsen during a plenary panel discussion at the ACS 10th Anniversary National Convention. She added that ultimately this effort to fundamentally change law surrounding commerce clause authority should remind us of the importance of judicial nominations.

    Since 1937, Johnsen, a member of the ACS Board, noted that the Supreme Court has almost always upheld Congress’s authority to enact laws regulating economic concerns. There have been only a few cases in recent time where the high court has invalidated laws as falling beyond Congress’s power to regulate commerce, she said. But the narrow majority in those cases expressed concern that the acts in question were too far afield from regulation of economic concerns. The Affordable Care Act (ACA), however, certainly deals with regulation of a major part of our economy, Johnsen concluded.  

    Randy E. Barnett, professor of law at Georgetown University Law Center, and a critic of the minimum coverage provision, told the audience, to laughter and applause, that the bill it got was one it really didn’t want and was actually a payoff to the insurance companies so they would not oppose the bill. Under current court doctrine, Barnett said, extending Medicare to everyone or having a single-payer plan would be constitutional.

    Walther E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, said without the minimum coverage provision, the ACA could not guarantee that health insurance coverage would be available to those with pre-existing conditions. He maintained that even if the minimum coverage provision were not supported by Congress’s powers to regulate commerce or to tax and spend, it is within Congress’s authority to create laws necessary and proper in carrying out its constitutional powers.

    Dellinger also took on the Right’s frequent argument that the ACA represents an unprecedented government intrusion into health care.

    “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty,” he said. “And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods [for abortions], government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”

    Video of the full panel discussion is available here or by clicking on image below.

  • June 20, 2011

    A standing room only crowd at the ACS 10th Anniversary National Convention of the American Constitution Society heard State Department Legal Adviser and former Yale Law School Dean Harold H. Koh offer "guideposts" for lawyers on how to enjoy meaningful and productive lives, urging them not to discard their principles or refuse to take stands in order to land a government job.

    “In Washington you are only as good as your principles and the principals you work for,” Koh said. "That means you have to choose the right principals and choose the right principles."   He continued, “Life is too short to spend it waiting to be honest. Life is too short to keep all your heartfelt beliefs to yourself. It is the job of engaged citizens, and members of this Society to speak up and to stick by what you say."

    "So my plea to you is to stand for something," Koh implored. "Stand for the principles of this Society [ACS]. Stand for the rule of law and human rights principles that made you become a lawyer. Live by your principles. And stick by them. And if certain jobs don't come your way, you have your principles, which are more important."

    Koh provided the guideposts against a backdrop that he described as a "funny time, because like the Tale of Two Cities, for many of the members of this Society [ACS] this is the best of times and the worst of times."

    In what he also called a politically charged environment, Koh highlighted the increasingly acrimonious confirmation process for President Obama’s nominees, noting some setbacks for legal scholars who have spoken their beliefs and stood by their principles.

    Citing the Senate's unprecedented obstructionism of the president’s judicial and executive branch nominations, Koh noted the recent filibuster of UC Berkeley law school professor Goodwin Liu, the former ACS Board chair, to the U.S. Court of Appeals for the Ninth Circuit, and the defeat of the president’s initial selection to lead the Office of Legal Counsel (OLC)

    "We live in an environment where people like Dawn Johnsen [the president's initial selection to head the OLC, also an ACS Board member] and Goodwin Liu can't get confirmed, when there is no one more qualified than they are."

    To a standing ovation Koh referred to his "good friend" Liu, saying, "In Washington, you are controversial. In our world you are anything but. In our world, you are a hero. We are proud of you; we have always been, and we will always be."

    Watch video of Koh's speech here or by clicking on image below. Visit the ACS web site for additional video and reporting on the ACS 10th Anniversary National Convention.