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Articles & Commentary

January 30, 2016

Even Justices Scalia and Thomas have areas (most notably, some areas of criminal procedure) in which their votes are clearly in play. But it’s difficult to say what those areas or cases might be when it comes to Alito. And that’s surely why, 10 years into his tenure, it appears there’s no one to the right of Alito on the current Court.

January 26, 2016

Public figures like Hillary Clinton should use the 150th anniversary of this Second Founding to draw attention to the constitutional achievements of Stevens, Bingham, and their generation. While Reconstruction fell short of its full promise, its leaders deserve to be remembered alongside America’s long line of visionary reformers—from James Madison and Alexander Hamilton to Susan B. Anthony and Elizabeth Cady Stanton to Martin Luther King, Jr. and Lyndon Baines Johnson. And the period itself, though turbulent and violent, should be remembered for what it was—a Second Founding for our nation.

January 21, 2016

Today marks the 201st birthday of John Bingham.  Although forgotten by most Americans, Bingham is one of the most important figures in American constitutional history.  Indeed, Justice Hugo Black called him the “Madison . . . of the Fourteenth Amendment.”  And so he was.

January 13, 2016

If the Court takes, as its lodestar for evaluating DAPA, the plan manifest over decades of legislating and administering the immigration laws, it is unlikely that votes will be found to invalidate it—in the (also unlikely) event that a majority will grant standing and reach the merits of Texas’ case. 

January 12, 2016

There are limits to executive power, of course. As the Supreme Court has recognized, the executive branch cannot simply “abdicate” its responsibility to enforce the law. And as a society, we should remain ever watchful to make sure no presidential actions disrupt the balance of powers. But so far, President Obama’s executive actions don’t come anywhere close to doing so.

January 8, 2016

Chief Justice Moore may not want to recognize that the U.S. Supreme Court has the final say when it comes to the U.S. Constitution, but it does. The nation's high court should take the opportunity presented by V.L. v. E.L. to once again remind Moore and his colleagues of that very important fact. Nothing less than the rights of a mother and her children depend on it.

January 6, 2016

The Supreme Court will likely hand down its decision in Whole Woman’s Health on one of the last days of June 2016, a matter of weeks after the 150th anniversary of the passage of the Fourteenth Amendment in Congress. If Justice Kennedy and Justice Ginsburg once again join forces in reaffirming the amendment’s protection of equal liberty, dignity, and autonomy, there will be quite a lot to celebrate.

December 30, 2015

As Roberts rings in 2016, he’ll likely be thinking about the very important case the court will be hearing early in the New Year. Let’s hope that he’s also thinking about the resolutions he made when he joined the court and what the consequences would be — for the country, for the court, and for his own legacy — if he doesn’t keep them.

December 9, 2015

As this morning’s argument showed, this case has now become a vehicle for the Court’s conservatives justices to second-guess the university’s well-founded judgment that the sensitive use of race helps to ensure a diverse student body, provide pathways to leadership, and break down stereotypes that stand in the way of equality for all.

December 8, 2015

If Sue Evenwel hopes to set off a reapportionment revolution, she needs five votes to scrap our Constitution’s fundamental rule of equal representation for equal numbers of people. By the end of 60 minutes of oral argument, it is far from clear whether a majority of the Court is ready to take away representation in state legislatures from millions of individuals and throw our nation’s political system into turmoil.