Xavier Cortada’s picture depicts Bush v. Gore with an hourglass, reflecting the tremendous time pressure that the Supreme Court felt to resolve the 2000 election. But it is exactly this time pressure that caused the Court to go seriously wrong: deciding a case that was not ripe for review, incorrectly applying equal protection law, and violating a basic principle of federalism that state courts get the last word on questions of state law.
A purple cape. Cuts of goat meat ready to be cooked. Crutches and two dogs. Their meaning, as Xavier Cortada writes of his painting, is ambiguous. Perhaps the goat has been carved by an injured butcher for a nontraditional Christmas feast, but the symbolism also suggests that the goat may have been carved for Babalú-Ayé, one of the spiritual beings known as orishas among followers of Santería. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Supreme Court struck down a series of ordinances tailored to prohibit Santería animal sacrifice but few other killings. The ordinances were neither neutral nor generally applicable and failed to survive strict scrutiny under the Free Exercise Clause. Lower courts and scholars disagree about Lukumi’s reach. Understood narrowly, Lukumi is about religious hostility; read broadly, it requires equal treatment of analogous religious and nonreligious conduct. A close look at Cortada’s painting suggests Lukumi might be even more protective.
This Chapter explores Fourth Amendment law and history through the lens of Xavier Cortada’s painting inspired by Florida v. Jardines. At its core, Jardines is a case about the future of Fourth Amendment interpretation and how different doctrinal theories should best protect an individual’s home from unreasonable searches and seizures. Written by Justice Antonin Scalia with his characteristic irreverence, flair, and self-confidence, Jardines is a case about fundamental questions of privacy and security that turns on the constitutional significance of a police dog sniffing outside your home.
This chapter tells the story of Florida inmate Clarence Gideon, a most unlikely champion for the Sixth Amendment’s guarantee of the right to counsel for poor criminal defendants. Before Gideon wrote his famous letter from his jail cell, the Supreme Court had narrowly interpreted the Sixth Amendment leaving the vast majority of poor criminal defendants tried in state courts without access to a lawyer. Clarence Gideon’s hand-written appeal to the Supreme Court sparked a fundamental change in our criminal justice system, resulting in the Court declaring the right to counsel essential to a fair trial and requiring states to provide lawyers to poor criminal defendants. Although the Supreme Court has subsequently limited the application of the holding in Gideon v. Wainwright and the states have fallen woefully short in meeting their obligation to provide lawyers for poor criminal defendants, Clarence Gideon’s contribution remains remarkable and worthy of celebration.
Predominantly a European phenomenon, the study of legal iconography has expanded to the common law world and informed approaches to Anglo-American legal development. European painting, sculptures, and other artwork were used in forensic settings to channel behavior of judges, lawyers, and litigants. Such artwork often combined religious perspectives, such as depictions of the Last Judgment, but might also reflect more secular notions such as Justice. Cultural historians and theorists have supplemented these traditional approaches by expanding the scope of the analysis of the relationship between image and law. This book continues these scholarly efforts. It is, in essence, a study of legal iconography at ground level. The viewers, interpreters, and expositors of Cortada’s paintings are constitutional scholars rather than historians or theorists of law, art, or culture. This work analyses common law materials, constitutional cases, and the depiction of specific cases in twenty-first century artwork. It illustrates the potential for legal iconography to offer deeper insights into law, legal institutions, justice, injustice, and legal change in modern society.
In his painting series May It Please the Court, artist Xavier Cortada offers visual depictions of ten significant constitutional law decisions from the Supreme Court of the United States that originated in Florida. Cortada’s series is ‘of’ Florida, cases arising from instances unique to the state, in which Florida people, places, and events produce Florida things. Because Florida is a weird place full of weird people doing weird things. But those weird events produce legal disputes resulting in constitutional principles affecting the rest of the nation on matters ranging from criminal procedure to freedom of the press to free exercise of religion to property rights to state sovereign immunity.