Section 3 of the Fourteenth Amendment disqualifies people from holding an office under the United States if they previously swore an oath to uphold the Constitution and then participated in an insurrection or rebellion. The last sentence of Section 3, however, says that “Congress may by a vote of two-thirds of each House, remove such [...]
In 2012, I authored a book called “Supreme Myths: Why the Supreme Court is not a Court, and its Justices are not Judges.” The thesis of the book was that, due to a perfect storm of factors, the Supreme Court in practice makes all-things-considered decisions, not legal decisions, with the only real constraint on the [...]
In New York State Pistol & Rifle Ass’n v. Bruen, decided last June, the Supreme Court issued one of the most unusual and dangerous opinions in American history. Clarence Thomas’ majority opinion instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government’s asserted [...]
In the leaked Supreme Court draft opinion overturning a half-century of abortion jurisprudence, Justice Samuel Alito repeatedly argued that this difficult issue should be decided by the people through their elected representatives. Such calls for democracy to work, however, should be looked at with great skepticism by the American people, given how often and how [...]
The Supreme Court’s 2021-2022 term which starts the first Monday in October will likely be one of the most important of the last 50 years. The Justices have already agreed to hear disputes involving gun control legislation and abortion rights and are likely to decide a major affirmative action case as well. Given that Republican [...]
Once President-Elect Biden takes office, we will be able to say goodbye to new judges who self-identify as originalists. This change is important because in constitutional cases, originalism is either pernicious or irrelevant, and we should stop pretending otherwise. There is nothing wrong with the American people celebrating their link to the white, propertied males [...]
