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Articles & Commentary

August 4, 2009
Senate debate over Elena Kagan's nomination will highlight the differences between liberal and conservative judicial theory.
 
Elena Kagan’s testimony during her Supreme Court confirmation hearings, which echoed important parts of Chief Justice John Roberts’s 2005 testimony, officially ended the heated debate over conservative “originalism” versus liberal “living constitutionalism.”
 
May 15, 2009

It's not just liberals who play the empathy card.

May 7, 2009

No judge we are aware of has asserted that the rulings of foreign courts should dictate how American judges interpret the U.S. Constitution, or be considered precedent that must be followed. The issue is whether American judges trying to resolve a dispute may look for guidance in how judges in other countries with similar legal systems have resolved similar disputes.

May 5, 2009

Conservatives are already fired up about Obama's judicial nomination. Is the White House prepared for the fight?

January 14, 2009

Where you stand often determines where you sit. If that maxim holds true, the Supreme Court is likely to divide sharply along ideological lines in the big environmental case argued yesterday, Coeur Alaska v. Southeast Alaska Conservation Council.

November 12, 2008

Here is an agenda for Barack Obama -- secure "a new birth of freedom" for the 21st century, push the Supreme Court to enforce the text and history of the Reconstruction Amendments, and nominate Justices who will do the same. 

July 24, 2008

Talk about unfortunate timing. Just as conservatives in Congress shamelessly announced their latest "drill everywhere" energy plan on the steps of the Capitol yesterday, a major oil spill closed down part of the Mississippi River.

July 9, 2008

Barack Obama's rightward drift in recent weeks has hardly gone unnoticed or unrewarded. What's most fascinating about his efforts to appeal to the American center is the extent to which Obama, as a constitutional law professor and Harvard Law Review president, has repeatedly chosen the Bill of Rights as his vehicle for doing so.

June 25, 2008

The Court's reduction of punitive damages in Exxon Shipping Co. v. Baker is a nakedly activist decision that pulls its standard for limiting damages out of thin air, demonstrates hostility to the role of Congress, and continues a pattern of ignoring the Framers' views on the importance of civil juries. Progressives would do well to treat this decision with resounding scorn, and highlight it as a textbook example of why the Supreme Court matters.

June 10, 2008

It will probably take government officials, developers, and the courts a while to determine exactly how far federal protection for wetlands and waters extends after the Supreme Court's decision this week in Rapanos v. United States and a companion case, Carabell v. Army Corps of Engineers.

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