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Supreme Court

  • Originally published 03/30/2018

    Company Men

    Kim Phillips-Fein

    The 200-year legal struggle that led to Citizens United and gave corporations the rights of people.

  • Originally published 03/31/2017

    The History of the Filibuster

    Sarah Binder

    Historical lore says that the filibuster was part of the original design of the Senate. Not true. When we scour early Senate history, we discover that the filibuster was created by mistake.

  • Originally published 03/24/2017

    Borking Started Before Bork

    Justin P. Coffey

    The borking of nominees to the Supreme Court began when Nixon tried to put Clement Haynsworth on the Supreme Court.

  • Originally published 03/16/2017

    Racist Jurors Watch Out!

    Jeffrey Abramson

    The Supreme Court has decided that your decisions can be thrown out.

  • Originally published 06/27/2016

    Opening the Door to a Conservative Court

    Jeff Shesol

    A new book by Michael J. Graetz and Linda Greenhouse argues that the Burger Court advanced the conservative agenda by eroding the rights the Warren Court had established.

  • Originally published 04/06/2016

    The Supreme Court Mystery We Couldn’t Solve

    Brian Johnson

    The Obama administration claims that every nominee to the Court since 1875 has received a hearing or an up or down vote. So what happened in 1875? Nothing as far as we could determine.

  • Originally published 03/18/2016

    Merrick Garland, religion, race and American identity

    Jonathan Zimmerman

    When Max Garland came to America, the Bureau of Immigration still classified Jews as a distinct race. And you couldn’t “choose” a different one, the argument went, any more than a leopard could change its spots.

  • Originally published 02/22/2016

    Looking Back

    Jeffrey Toobin

    Antonin Scalia, who died this month, after nearly three decades on the Supreme Court, devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy. Fortunately, he mostly failed.

  • Originally published 02/15/2016

    Top 5 Scalia Rulings that helped Progressives

    Juan Cole

    Perhaps his passing is an opportunity to point to a few things on which we, as Americans, did agree, because of our commitment to the Constitution, however different our interpretation of it might be in general.

  • Originally published 02/15/2016

    Antonin Scalia’s Lasting Influence

    He showed modern presidents and political parties that it is possible to pick a Supreme Court justice who shines brightly without shifting shape.

  • Originally published 06/30/2015

    Liberals have reason to rejoice

    Julian Zelizer

    But they should still not be sanguine. They shouldn't go too far in thinking that the nation is all of a sudden trending to the left.

  • Originally published 06/29/2015

    A New Right Grounded in the Long History of Marriage

    David M. Perry

    Citing the work of historians that demonstrates the constant evolution of the institution, the U.S. Supreme Court decides to recognize a constitutional right to same-sex unions.

  • Originally published 06/22/2015

    When judges change their minds

    Emily Bazelon

    Oliver Wendell Holmes first embraced throwing people in jail for holding views critical of the government.  Then, a few months later, changed his mind. When does this happen? 

  • Originally published 03/30/2015

    Clones on the Court

    Akhil Reed Amar

    A Supreme Court that once included former senators and governors is populated today by judges with identical résumés. Here's why that's a mistake.

  • Originally published 12/03/2014

    The Great Paper Caper

    Jill Lepore

    Someone swiped Justice Frankfurter’s papers. What else has gone missing?

  • Originally published 07/23/2014

    The Supreme Court’s Coming Paralysis

    Jeff Greenfield

    Why there’s really no chance President Obama will be able to appoint another Justice to the bench, regardless of what happens in November.

  • Originally published 06/26/2014

    Supreme Court Curbs President’s Power to Make Recess Appointments

    The court ruled unanimously that President Obama had violated the Constitution in 2012 by appointing officials to the National Labor Relations Board during a short break in the Senate’s work when the chamber was convening every three days in pro forma sessions.

  • Originally published 05/11/2014

    The Polarized Court

    The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.

  • Originally published 05/07/2014

    For Justices, Free Speech Often Means ‘Speech I Agree With’

    “While liberal justices are over all more supportive of free speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

  • Originally published 08/07/2013

    Student's simple stand made history in Abington v. Schempp

    He was a 16-year-old junior at Abington Senior High School, just making a statement, utterly unaware that he was about to make legal history.It was in 1956 that Ellery Schempp staged the classroom protest that yielded Abington v. Schempp, the landmark 1963 U.S. Supreme Court decision banning mandatory Bible readings in public schools.When Schempp's homeroom teacher read aloud 10 verses from the New Testament at the start of the day, as required by Pennsylvania law, Schempp brazenly paged through a Quran he had borrowed from a friend.When a student read the Lord's Prayer over the public address system, another daily requirement, Schempp refused to stand.Those actions earned him trips to the principal and guidance counselor, and triggered years of litigation over his belief that such readings were unconstitutional....

  • Originally published 07/19/2013

    Why Is Arbitration Legally Binding?

    Imre Stephen Szalai

     The Supreme Court is wrongfully outsourcing justice for millions of Americans who are being shut out from the courthouse and relegated to a secretive justice system with very limited rights.

  • Originally published 06/28/2013

    AHA Amicus Brief Ignores Radical Queer History

    Steven Maynard

    The perspective on the history and politics of same-sex marriage crystallized in the AHA amicus brief both reflects and helps to reproduce a much broader and worrying process: the narrowing of the queer political field to variants of liberalism such that a left critique becomes increasingly difficult to voice.

  • Originally published 06/26/2013

    Historians Played Important Role in DOMA Decision

    David Austin Walsh

    Image via Shutterstock.The Supreme Court's decision released Wednesday morning to strike down the Defense of Marriage Act in Windsor v. United States upheld upon arguments made by historians in an amicus brief filed by the American Historical Association.The majority opinion acknowledges that “[b]y history and tradition, the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.”This mirrors language in the brief filed by twenty-three historians of marriage, sexuality, and constitutional law, which stated in its introduction that “[c]ontrol of marital status is reserved to the states in our federal system. Marriage has always been understood as a civil contract embodying a couple’s free consent to join in long-lasting intimate and economic union.”

  • Originally published 06/26/2013

    Minn. lawmaker apologizes for ‘Uncle Thomas’ tweet after Supreme Court voting rights ruling

    ST. PAUL, Minn. — A Democratic legislator from Minnesota swiftly apologized Tuesday for a tweet he sent that referred to Supreme Court Justice Clarence Thomas as “Uncle Thomas” following a major ruling on the nation’s landmark voting rights law.Thomas, who is black, was part of a 5-4 majority that invalidated part of the Voting Rights Act meant to deter racial discrimination in elections. The ruling makes it tougher for federal officials to prevent states and localities, primarily in the South, from adopting policies that add barriers to voting.In response, state Rep. Ryan Winkler tweeted: “#SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas. Marriage decision may blur Court’s backsliding.”...

  • Originally published 06/24/2013

    SCOTUS Ruling on Affirmative Action Could Give Private Universities Advantage

    John Willingham

    Credit: Wiki Commons.The Supreme Court, in a 7-1 decision with Justice Ginsburg dissenting, has issued a ruling in the Fisher v. University of Texascase that will likely require public universities to explore virtually all race-neutral alternatives in their attempts to achieve diversity before being able to use race as a factor in admissions.The ruling was probably the result of a compromise that, while not overturning previous decisions and not ruling that UT’s use of race is unconstitutional, will nevertheless lead to greater difficulty for colleges that want to use race as a factor in admissions.The decision vacates the ruling in favor of UT Austin by the Fifth Circuit Court of Appeals and remands the case to the circuit court with instructions to apply "strict scrutiny" to the university’s rationale for using race as an admissions factor.

  • Originally published 06/21/2013

    Adam Winkler: Obama’s Terrible, Awful, Horrible Year at the Supreme Court

    Adam Winkler is a constitutional-law professor at UCLA.While the country waits (and waits and waits) for the Supreme Court to announce its decisions in what court watchers are calling the Big Four—the two gay-marriage cases, the affirmative-action case, and the Voting Rights Act case—one thing has already become clear by the court’s decisions: the Obama administration has had a lousy year in the high court. While the administration has certainly won some cases, more often than not the court has rejected the administration’s arguments. On Thursday, for example, the court announced three decisions, rejecting the Obama administration’s arguments in each one.In fact, this year may turn out to be one of the worst ever for the United States government at the Supreme Court.

  • Originally published 06/07/2013

    Akhil Reed Amar and Neal K. Katyal: Why the Court Was Right to Allow Cheek Swabs

    Akhil Reed Amar is a professor of law and political science at Yale. Neal K. Katyal is a former acting solicitor general of the United States, a professor of national security law at Georgetown and a partner at the law firm Hogan Lovells.SOMETHING astonishing happened Monday: Antonin Scalia, the Supreme Court’s longest-serving member and one of its most conservative justices, joined three liberal justices in a sharply worded dissent arguing for the rights of criminal suspects.The court decided, 5 to 4, that the Constitution permits the police to swab the cheeks of those arrested of serious crimes, and then do DNA tests on the saliva samples to see if the suspects are associated with other crimes. Justice Scalia joined three liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.

  • Originally published 04/05/2013

    Peter Dreier: Is the Supreme Court Going to Settle for "States' Rights" on Same-Sex Marriage?

    Peter Dreier is professor of politics and chair of the Urban and Environmental Policy Department at Occidental College. His new book, "The 100 Greatest Americans of the 20th Century: A Social Justice Hall of Fame," was just published by Nation Books.Should the states decide whether black Americans can marry white Americans?Today that idea seems absurd. Most Americans believe that states shouldn't be allowed to trample the basic right of interracial couples to marry - even if a majority of people in a state want to do so. It would be unfair - a clear violation of equal rights. That's one reason we have a federal government.In 1967, in Loving v. Virginia, the nation's highest court knocked down state anti-miscegenation laws.Now the nation - and the Supreme Court - confront a very similar situation, only this time the issue is same-sex marriage.

  • Originally published 04/01/2013

    A post-racial US? Supreme Court may nullify civil rights policies as outdated in era of Obama

    WASHINGTON — Has the nation lived down its history of racism and should the law become colorblind?Addressing two pivotal legal issues, one on affirmative action and a second on voting rights, a divided Supreme Court is poised to answer those questions.In one case, the issue is whether race preferences in university admissions undermine equal opportunity more than they promote the benefits of racial diversity. Just this past week, justices signaled their interest in scrutinizing affirmative action very intensely, expanding their review as well to a Michigan law passed by voters that bars “preferential treatment” to students based on race. Separately in a second case, the court must decide whether race relations — in the South, particularly — have improved to the point that federal laws protecting minority voting rights are no longer warranted....

  • Originally published 03/29/2013

    Why We Still Need the Voting Rights Act

    Simon E. Balto

    Mug shot of Olen Burrage in 1964.The expected gutting of the Voting Rights Act (VRA) by the Supreme Court in Shelby County v. Holder has captured many headlines of late, and with good reason. Less than fifty years removed from the VRA’s passage and in the face of mounting state-by-state efforts to restrict the franchise, the Roberts Court appears poised to undo one of the civil rights movement’s hallmark achievements. As an array of voting rights advocates and legal experts have demonstrated, such a decision would make it substantially more costly and difficult for citizens and organizations to challenge voting restrictions that are discriminatory in intent or effect.

  • Originally published 03/28/2013

    Melissa Harris-Perry: What Difference Will Same-Sex Marriage Make?

    Melissa Harris-Perry is professor of political science at Tulane University, where she is founding director of the Project on Gender, Race, and Politics in the South. She is author of Sister Citizen: Shame, Stereotypes, and Black Women in America. She is also a contributor to MSNBC.In his essay “Message in the Stars,” the American Presbyterian writer and theologian Frederick Buechner conducts a thought experiment. What if God decided to prove—dramatically, irrefutably and publicly—that God does exist by writing across the night sky. Buechner imagines the heavenly author arranging the stars to read—GOD IS—and the subsequent hope, terror, regret, joy and utter astonishment that such a message would bring. He fantasizes that God would write the message in all the different languages of the world, so that on any given night one might go outside, look up and see, in French, Mandarin or Arabic: GOD IS.He invites us to envision the sense of relief that would come with the utter certainty that God exists. Then he imagines this:

  • Originally published 03/07/2013

    Robert D. Parmet: Review of Robert M. Lichtman's "The Supreme Court and McCarthy-Era Repression: One Hundred Decisions" (Illinois, 2012)

    Robert D. Parmet is Professor of History at York College of the City University of New York.Irving Adler was one of 378 New York City teachers ousted for violating the state’s Feinberg Law (1949), which made past or present membership in the Communist Party sufficient ground for dismissing public school teachers.  Fifteen years after Adler’s removal, in Keyishian v. Board of Regents (1967), the United States Supreme Court declared that law unconstitutional, enabling his reinstatement and subsequent receipt of a pension. Ensnared in the Second Red Scare, a period dominated by the presence of Senator Joseph McCarthy and the fear his presence generated, Adler and other loyal Americans were injured in many ways.

  • Originally published 03/05/2013

    AHA addresses historical issues in Supreme Court DOMA case

    Kenneth Pomeranz and James Grossman are the president and executive director of the American Historical Association, respectively.The American Historical Association has joined a group of individual distinguished historians in signing an amicus brief in US v. Windsor, a case before the Supreme Court contesting the validity of the Defense of Marriage Act (DOMA). As is so often the case in legal contexts, the details can get lost in the swirl of broader issues and we want to clarify some important aspects of the AHA’s decision.The brief that the AHA has joined addresses strictly historical issues: in this case, how marriage has historically been regulated in the United States, and the purposes for which marriage has been thought to exist.  In both matters, it replies, in part, to a brief by the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”).

  • Originally published 02/11/2013

    Confederate flag mistakenly raised over Mississippi Supreme Court building

    The Confederate flag was mistakenly raised for a few hours over the Mississippi Supreme Court in Jackson on Friday.A replacement was needed a Mississippi state flag that was tattered and torn, Kym Wiggins, public information officer for the state Department of Fiance and Administration told the Clarion-Ledger.Calling the incident, "highly unusual," Wiggins explained to the paper that a local vendor was tasked with the job of purchasing new state flags to replace the one that was torn. Wiggins claims they were given two boxes labeled "Mississippi State Flag," but the boxes actually contained Confederate battle flags. After a maintenance worker raised the flag, the mistake went unnoticed for a couple of hours....

  • Originally published 01/22/2013

    Five Myths about Roe v. Wade

    Marc Stein

    Supreme Court Building. Credit: Wiki Commons.Originally posted on the UNC Press Blog.On January 22, 1973, the U.S. Supreme Court announced its decision in Roe v. Wade, the abortion rights case that culminated in one of the most controversial legal rulings in the country’s history. Forty years later, numerous myths continue to circulate about the contents and meanings of Roe. Here are five of the most significant:Myth #1: Roe endorsed abortion on demand.

  • Originally published 07/06/2017

    Gay Equality is Coming Quickly

    Steve Hochstadt

    Bigots will keep using religion as a cover for prejudice, as in the so-called religious freedom laws. But the shift toward acceptance of homosexuality will continue, as older opponents are replaced by younger advocates. Because our gay relatives and friends do not fit the prejudicial stereotypes, discriminatory impulses will lose their persuasive power.

  • Originally published 03/28/2016

    Orrin Hatch's Embarrassing New York Times Op-Ed

    Mark Byrnes's Facing Backwards

    Senator Orrin Hatch took to the New York Times op-ed page to try to make the case for the Senate refusing to take up President Obama’s Supreme Court nominee. It didn’t go well.

  • Originally published 08/12/2014

    Classifying America: Government’s Power to Define Is the Power to Discriminate

    Liberty and Power

    Frederick Douglass’s colorblind self-definition epitomized that element of the classical liberal tradition of civil rights—one that even the NAACP held to as late as the 1960s when it rejected all government racial classifications as a step backward toward discrimination.Yet here we are today with racial classifications that conceal the divisions within the so-called “races.” To define a group as eligible for benefits or preferences is to exclude those outside the group of the same treatment. Equal protection of the law goes out the window as individuals or business in government-defined preferential groups benefit from “affirmative discrimination” while those not-so-defined suffer.

  • Originally published 07/03/2014

    Hobby Lobby Ruling Falls Short

    Liberty and Power

    As far as it went, the Supreme Court generally got it right in the Hobby Lobby-Obamacare-contraception case. Unfortunately it didn’t go nearly far enough.

  • Originally published 06/18/2014

    The Noninterventionists Told You So

    Liberty and Power

    Contrary to popular belief, there is no satisfaction in being able to say, “I told you so.” This is especially so with Iraq, where recent events are enough to sicken one’s stomach. Yet it still must be said: those who opposed the George W. Bush administration’s invasion of Iraq in March 2003 — not to mention his father’s war on Iraq in 1991 and the sanctions enforced through the administration of Bill Clinton — were right.

  • Originally published 06/14/2014

    Are Some Groups More Equal Than Others?

    Liberty and Power

    In the recent Schuette v. BAMN decision, the U.S. Supreme Court upheld the right of voters to amend the Michigan Constitution by guaranteeing Equal Protection to individuals in state university admission. The Court’s 6-2 majority split in its reasoning, with several justices citing recent decisions upholding “permissible” racial discrimination when the Court deems it acceptable. There is, however, no such “permissibility” language in the Equal Protection Clause of the Constitution.