Breakout 1: Originalism, Separation of Powers, and the Roberts Court

Session Description

The Roberts Court’s separation of powers decisions ranging from executive immunity to the firing of executive officers to the major question doctrine have fundamentally changed the relationships between and among the three branches of the federal government. At the same time, the Roberts Court has emphasized the importance of originalism to constitutional litigation. This panel will discuss how separation of powers cases should be analyzed, what role originalism has and should play for judges facing such difficult issues, and what are the most likely important separation of powers cases the Court will face in the next few years.

The panelist have diverse views on ideology (balanced among conservative, moderate, and liberal/progressive), on originalism as a theory of interpretation (from preferred to moderate to almost total rejection), and on the role our courts should play in maintaining a proper separation of powers (from strong to medium to little).

Learning Objectives

• Understand the changes in the relationships between and among the three branches of the federal government under the Roberts Court
• Understand the role originalism has played in affecting those changes
• Understand the arguments for and against originalism as a theory of interpretation

Prof.Eric Segall, Ashe Family Chair Professor of Law, Georgia State University College of Law

Eric J. Segall graduated from Emory University, Phi Beta Kappa and summa cum laude, and from Vanderbilt Law School, where he was the research editor for the Law Review and member of Order of the Coif. He clerked for the Chief Judge Charles Moye Jr. for the Northern District of Georgia, and Albert J. Henderson of the 11th Circuit Court of Appeals. After his clerkships, Segall worked for Gibson, Dunn & Crutcher and the U.S. Department of Justice, before joining the Georgia State faculty in 1991.

Segall teaches federal courts and constitutional law I and II. He is the author of the books Originalism as Faith and Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. His articles on constitutional law have appeared in, among others, the Harvard Law Review Forum, the Stanford Law Review On Line, the UCLA Law Review, the George Washington Law Review, the Washington University Law Review, the University of Pennsylvania Journal of Constitutional Law, the Northwestern University Law Review Colloquy, and Constitutional Commentary among many others.

Segall’s op-eds and essays have appeared in the New York Times, the LA Times, The Atlantic, SLATE, Vox, Salon, and the Daily Beast, among others. He has appeared on CNN, Fox News, MSNBC, and France 24 and all four of Atlanta’s local television stations. He has also appeared on numerous local and national radio shows.

Prof. Lorianne Updike Toler, Visiting Associate Professor, Yale Law School, Assistant Professor, Northern Illinois University

Lorianne Updike Toler specializes in constitutional law, comparative constitutional law, and legal history. Previous to joining the faculty at Northern Illinois University, Updike Toler was a Teaching Fellow at New England Law School in 2021-2022, the Olin Searle Fellow at Yale Law School ‘s Information Society Project 2020-2021, and a Visiting Fellow there in 2018-2020. She also taught as an Adjunct Professor at New England Law in 2019 and at Brigham Young University in 2004-05.

In addition to academic pursuits, Professor Updike Toler served as the Founding President and Executive Director of ConSource, or the Constitutional Sources Project from 2005-2009, where she founded the first free online library of the U.S. Constitution’s historical sources. She was also President of Libertas Constitutional Consulting from 2010-2018, where she worked on the Libyan constitutional process and helped to found the Quill Project at Pembroke College, University of Oxford, which has now onboarded ConSource.

Professor Updike Toler holds a master’s in history from The University of Oxford and graduated magna cum laude from both the J. Reuben Clark Law School and Brigham Young University’s School of Communications.

Professor Updike Toler has published in The University of Chicago Law Review, the Harvard Journal of Law and Public Policy, the William and Mary Bill of Rights Review, the Cambridge Journal of Public and International Law, is a contributor to Foreign Policy, and has a forthcoming article in the University of Pennsylvania Journal of Constitutional Law.

Prof. Alan Rozenshtein, Associate Professor of Law, University of Minnesota

Professor Alan Z. Rozenshtein joined the Law School as a visiting professor in 2017. In 2019 he became an associate professor of law and earned tenure in 2024. He is the research director and a senior editor at Lawfare, a nonresident senior fellow at the Brookings Institution, a visiting senior fellow at the Institute for Law & AI, a term member of the Council on Foreign Relations, and a member of the Scholars Strategy Network. He was previously an affiliate with the Berkman Klein Center for Internet and Society at Harvard University and a visiting faculty fellow at the University of Nebraska College of Law.

From Oct. 2014 to April 2017, he served as an attorney advisor in the Office of Law and Policy in the National Security Division of the U.S. Department of Justice, where his work focused on operational, legal, and policy issues relating to cybersecurity and foreign intelligence. From October 2016 to April 2017, he served as a special assistant United States attorney for the District of Maryland. During this time he taught cybersecurity at Georgetown Law.

Before joining the Justice Department, Professor Rozenshtein clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit. While attending Harvard Law School, he was a Heyman Fellow, served as articles editor for the Harvard Law Review, and was a contributor to Lawfare.

Hon. Christopher J. McFadden, Chief Judge, Court of Appeals of the State of  (Moderator)

Presiding Judge Christopher J. McFadden was elected in November 2010 for a term beginning January 1, 2011 and reelected in 2016 and 2022. He is a son of the late Isabel McFadden and the late Judge Donald B. McFadden, who served for twenty years as a trial court judge in Akron, Ohio.

Presiding Judge McFadden graduated from Oglethorpe University in 1980 and from the University of Georgia School of Law in 1985. He opened his own law office in 1988 and remained a sole practitioner until he joined the Court of Appeals. For most of that time, he practiced in Decatur and focused on appellate litigation. Before joining the Court of Appeals as its 74th judge, he appeared as appellate counsel before 26 of the judges who preceded him.

In 1996, along with the late Professor Edward C. Brewer and attorney Charles R. Sheppard, he published Georgia Appellate Practice through the Harrison Company of Norcross, Georgia. With Mr. Sheppard and attorneys Charles M. Cork III, David A. Webster, Kelly A Weathers, and formerly with the late attorney George W.K. Snyder, Jr., Judge McFadden continues to update it for West, which now publishes it in annual editions.

With attorney Laurie Webb Daniel, he is a founding past Chair of the Appellate Practice Section of the State Bar of Georgia. For twelve years, Judge McFadden served as an officer or director of the Atlanta Bar Association. He is a past chair of its Sole Practitioner/Small Firm and Judicial Sections and is a recipient of the its Distinguished Service and Charles E. Watkins, Jr. Awards, as well as its Judicial Section’s Romae Turner Powell Judicial Service Award.

Judge McFadden is an elected member of The American Law Institute. He has served as a volunteer attorney for the Innocence Project and the Election Protection Project. In addition to the Atlanta Bar Association, he is a member of the DeKalb Bar Association, Lawyers Club of Atlanta, Gate City Bar Association, Federalist Society, American Constitution Society, Saint Thomas More Society and of Oglethorpe University’s Stormy Petrel Bar Association. He served for more than six years on the State Bar of Georgia’s Committee on the Judiciary. He presently serves as Chair of the Board of the Appellate Judges Education corporation, is immediate past Chair of the Executive Committee of the Appellate Judges Conference of the American Bar Association, and chaired the 2018 Appellate Judges Education Institute, which was held in Atlanta. He chaired a committee of the Judicial Council of Georgia that drafted the Superior and State Court Appellate Practice Act.

He is a parishioner at St. Thomas More Catholic Church in Decatur, Georgia and has served as a lector since 1988. Judge McFadden is married to Dr. Linda Hyde, Professor of Biology at Gordon State College in Barnesville, Georgia. They have a son.