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Articles & Commentary

April 12, 2016

In short, not only is Texas’s challenge to DAPA an overtly partisan effort to upend a decades-old bipartisan consensus on immigration policy, but its lawyers’ arguments flout the legal framework codifying that consensus. Given recent decisions by Kennedy and Roberts endorsing that framework and opposing partisan misuse of the courts, good reason exists to expect the Supreme Court to reject this lawsuit and relegate the immigration wars to the political process, where they belong.

April 7, 2016

When the Supreme Court hears oral argument in United States v. Texas, the challenge to President Obama’s executive action on immigration, later this month, one of the big issues the Court will be considering is whether the federal courts should be considering the challenge at all.

April 7, 2016

After Justice Antonin Scalia died, many speculated that originalism would die as well, without one of its most tireless adherents on the bench.  Not if Justice Ruth Bader Ginsburg has anything to say about it. While Justice Ginsburg is rarely classified as an originalist, during her tenure on the Court, she has written a series of brilliant text and history opinions, powerfully making the case that Constitution’s text and history point in a progressive direction.

April 6, 2016

Why are so many Senate Republicans afraid to give Judge Garland a hearing? I can only believe it’s because they know that Americans would like what Judge Garland has to say.

April 5, 2016

One hundred and fifty years ago, the Framers of the Fourteenth Amendment debated our Constitution’s system of equal representation, affirming that every person counts in our system of representative democracy. Earlier this week, in Evenwel v.

April 2, 2016

Why are so many Senate Republicans afraid to give Judge Garland a hearing? I can only believe it’s because they know that Americans would like what Judge Garland has to say.

March 23, 2016

Which of these is a substantial burden? A law that results in the closure of abortion clinics and requires women to travel hundreds of miles to exercise their constitutional rights? Or a regulation requiring employers to fill out a form to claim a religious accommodation? This question is at the heart of two of the biggest cases being heard by the Supreme Court this year: one on Texas’s strict new abortion laws, argued earlier this month, and a challenge to the Affordable Care Act and its contraceptive-related provisions that will be discussed at oral arguments today.

March 16, 2016

Justice Antonin Scalia’s greatest legacy was his tireless championing of originalism. The method of interpretation he advocated—following the Constitution’s text and history where they lead—offers clear lessons for the current political struggle over the vacancy created by his death, especially now that President Barack Obama has fulfilled his constitutional duty by nominating D.C. Circuit Chief Judge Merrick Garland to the Supreme Court.

March 16, 2016

Nowhere in the text or history of our Constitution is the Senate permitted to drop an iron curtain across Pennsylvania Avenue and refuse even to evaluate a president's nominee. President Obama has done his job, it's time for Senators to do theirs.

March 2, 2016

More than 20 years ago, in Planned Parenthood v. Casey, the joint opinion, signed by Justices Kennedy, David Souter, and Sandra Day O’Connor, reaffirmed constitutional protection for the right to choose abortion and crafted the undue burden standard to give “real substance” to women’s liberty, equality, and dignity. Casey explained that “unnecessary health regulations” that substantially burden a woman’s fundamental right are unconstitutional. If Justice Kennedy follows what he’s written, he should vote to put an end to laws, like those enacted by Texas, designed to make an end-run around the Constitution.