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May 29, 2014

The Roberts Court has been rightly criticized for being too quick to overrule existing precedent. But in one area in which correction is truly needed, it has been oddly slow to do so: the Sixth Amendment’s jury trial right.  For the second time in less than a month, the Court has declined to consider a fundamental question of Sixth Amendment rights, thereby letting stand two old precedents that are inconsistent, in both reasoning and result, with the Court’s more recent Sixth Amendment decisions.   

Earlier this week, the Court denied review in Irving v. Florida, a case presenting the question whether juries composed of fewer than twelve members violate the Sixth Amendment.  A few weeks ago, the Court denied review in Jackson v. Louisiana, a case presenting the question whether non-unanimous jury verdicts violate the Sixth Amendment as it applies to the states.  In both instances, the Court was asked to hear the cases and overrule 40-year-old precedents that narrowly construed the scope of the jury right.  The Court’s decision to deny review in these cases is particularly distressing given the consequence: Americans continue to be denied the full protections of the constitutional right to a jury trial—a right of crucial importance to the Founders.  The denial of review is also surprising given that, in the years since those 40-year-old precedents were decided, the Court has repeatedly repudiated both their rationales and their outcomes.

May 28, 2014

Media battalions daily eye-ball every spike and dip in the Affordable Care Act’s implementation odyssey.  On May 14, however, nearly to a person, they passed up a noteworthy event: a Fourth Circuit Court of Appeals hearing in Richmond, Virginia, involving one of a phalanx of Koch-backed lawsuits, that could, if successful, in the exuberant vernacular of columnist George Will, “blow [the ACA] to smithereens.”  Much has been written about these cases, by ourselves and others, since conservative uber-litigator Michael Carvin filed in the District Court for the District of Columbia a complaint

May 22, 2014

Since December, when U.S.