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Articles & Commentary

July 23, 2014

The D.C. Circuit's decision got basically everything wrong. It misunderstood the text, structure and purpose of the Affordable Care Act. The Justice Department has already indicated that it will ask the entire D.C. Circuit to review the Halbig v. Burwell decision, and when it does, it will no doubt reverse it.

July 11, 2014

On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. 

June 30, 2014

In the Roberts Court, the First Amendment is a powerful weapon, not for the street corner speaker, but for corporations and wealthy seeking to squelch regulation.

June 30, 2014

The Hobby Lobby majority may claim otherwise, but its ruling is far from narrow -- and its breadth starts with the sweeping and novel recognition that for-profit corporations share in the right to free exercise of religion.

June 27, 2014

The alliance of liberal and libertarian advocates will only get stronger in future terms because obviously the justices are listening. Even one of the most conservative courts in our country’s history has moments when it’s not so conservative.

June 24, 2014

In effect, three of the five conservative justices recognized that inaction on climate change is not a sound option, and that implicit exceptions must be read into the literal text of the Clean Air Act to make action possible. They made clear that it is they who retain the power, ultimately to decide when to make those policy and political choices, and, to an undefined but significant extent, how to make them.

June 12, 2014

Do we need a constitutional amendment to overturn Roberts' court rulings that have eviscerated our nation's campaign finance laws and opened the floodgates to unlimited corporate spending? That question was front and center last week as senators gathered for a historic hearing of the Senate Judiciary Committee in which both Majority Leader Harry Reid and Minority Leader Mitch McConnell testified. The answer may well be yes.

June 9, 2014

Last Monday, Chief Justice John Roberts turned George Will’s “momentous case” into a non-event. Writing for a majority that included Justice Anthony Kennedy and the Court’s four progressive justices, Roberts side-stepped his traditional ideological allies’ recipe for constitutional upheaval. Instead, Roberts narrowly construed the statute under challenge in the case to avoid ruling on the far-reaching constitutional theories they had propounded.

May 13, 2014

Just as the Supreme Court in 1967 consigned Virginia’s laws against interracial marriage to the dustbin of history, I think it’s only a matter of time before the same happens to the state’s most recent set of discriminatory marriage laws. How much time, I’m not quite sure. But in Bostic, the 4th Circuit should help do away with these laws. The Constitution requires no less.

May 8, 2014

To go toe-to-toe with Republicans and conservatives over the next Supreme Court vacancy, and the far stormier battles that can be expected as Republican as well as Democratic justices retire, Democrats and progressives must correct their self-inflicted disabilities, revise their playbook, and offer a persuasive vision rooted in the rule of law and the Constitution’s text and history.