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Articles & Commentary

October 7, 2014

While I don't think that it will take 19 more years for nationwide marriage equality, every day that gay men and lesbians are denied their constitutional rights and suffer the harms that follow is one day too many. So my joy today is tempered by the sadness of knowing that, for so many gay men and lesbians in this country, marriage equality is still a constitutional promise not yet fulfilled.

September 29, 2014

The court obviously can’t—and shouldn’t—take every case, and perhaps the court had good reasons for not taking these cases (and many others). But the one thing we can know for sure is the court decides not to hear lots of important cases each year, and as a result, justice is underserved for many. Court watchers are quick to criticize the court for the way it decides cases, but the court sometimes deserves criticism for the cases it doesn’t decide, as well.

September 17, 2014

Beginning this Constitution Day, and continuing through the 150th anniversary of the Fifteenth Amendment in 2020, we should work together to build a celebration that's worthy of the Second Founding's remarkable constitutional achievements — one that restores the Second Founding Amendments to their rightful place at the center of the American constitutional story.

September 15, 2014

The full D.C. Circuit's decision to rehear Halbig wasn't political; it was a straightforward application of Federal Appellate Rule 35, which governs when federal appeals courts should rehear cases en banc. According to your editorial, a case is of "exceptional importance" when it involves some "constitutional principle." But that's not what Rule 35 says. The rule provides that a case is of exceptional importance when "the panel decision conflicts with . . . decisions of other . . . Courts of Appeal." That standard was met here because the Fourth Circuit upheld the IRS rule.

September 2, 2014

John Roberts, the Chief Justice of the United States, grew up in Indiana. He could learn a very good lesson from the practices of his home state’s Supreme Court, which is that government functions best when those it serves can see and understand what it is doing. Clearly, the Indiana Supreme Court appreciates the value of openness in government. If Hoosiers can broadcast their oral arguments live, why can’t the U.S. Supreme Court?

August 24, 2014

But thus broadening the stakes in these lawsuits is a mistake. The better—and accurate—tack is that opponents’ route to interpreting federal exchanges into self-immolation is so hyper-blinkered that it flouts bedrock axioms common to all legitimate interpretational theologies.

August 14, 2014

Last week, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit — Judges Jeffrey Sutton, Deborah Cook, and Martha Craig Daughtrey — heard oral arguments in cases from four states (Kentucky, Michigan, Ohio, and Tennessee) in which lower court judges have struck down state bans on same-sex marriage and bans on the recognition of same-sex marriages legally entered into elsewhere.

August 3, 2014

Fortunately, Virginia's "traditional" view of marriage has been consigned to the dustbin of history. I'm confident that when all is said and done on the issue of marriage equality for gay men and lesbians, that's where we'll find Virginia's current laws as well. As the majority recognized in Bostic, the Fourteenth Amendment requires no less.

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.