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November 8, 2023
The Ultimate Originalist Stamp of Approval
Nick Martin
In Haaland v. Brackeen, decided this June, Justice Neil Gorsuch’s concurring opinion again reminded readers just how rarely the high court has demonstrated a clear, coherent approach toward federal Indian law. The case focused on the constitutionality of the Indian Child Welfare Act (ICWA), which was passed in 1978 to reduce the number of Native children removed from their families and to preferentially place Native adoptees and foster youth within...
November 8, 2023
A Collective of Freelance Lawyers
Eleni Schirmer
The Supreme Court isn’t as much a body of government as it is a collective of freelance lawyers, and Biden v. Nebraska was less a case than a grab bag of grievances dumped out by disgruntled ideologues. Six Republican-led states, in order to prove injury by the student-debt cancellation policy, claimed that local entities would lose money, which would harm the states in various ways. Missouri argued that it would...
November 8, 2023
An Old Story
Noah Rosenblum
For the first time in years, there are signs that liberals are ready to give up their infatuation with the Supreme Court. While it has not come easy, it is long past time. And there are promising avenues for reform on the horizon that could wrest control from right-wing ideologues on the bench. Liberals’ past resistance to reform has seemed connected to their belief in an old story about the...
November 8, 2023
A Judicial Coup
Steven Donziger
The Supreme Court has become a political and not a judicial body. Its members wear black robes, look like impartial justices, and try to act like impartial justices, but the majority — Alito, Thomas, Barrett, Gorsuch, and Kavanaugh — were placed there by a dark money network to carry out an extremist agenda on social issues and a corporatist agenda on economic issues, all against the will of the people....
November 8, 2023
A Tradition of Radical Imagining
Henry Hicks IV
It was only twenty years ago that the Supreme Court, in Lawrence v. Texas, struck down bans on “homosexual conduct” and legalized physical intimacy between same-sex couples nationwide. Universal marriage equality, following the Court’s holding in Obergefell v. Hodges, has only been guaranteed since 2015. Taken together, these cases represent an extreme transformation in legal doctrine in only twelve years. One could say that the last two decades of legal...
November 8, 2023
The Temptation to Speculate
Alexandra Brodsky
I have a degree in psychoanalyzing Anthony Kennedy. When I was a law student, he was still the swing vote on major social issues, and therefore a topic of disproportionate interest around the school. And his opinions were, to put it technically, heavy on vibes. Behind the legal reasoning lay a worldview, a set of commitments somewhere between the ethical and the aesthetic, that I found harder to pin down...
November 8, 2023
A Judicial Rorschach Test
Duncan Hosie
June 30 was a busy day at the Supreme Court. Its conservative supermajority struck down the Biden administration’s student loan cancellation initiative and sided with a for-profit business that claimed a constitutional right to discriminate against same-sex couples seeking wedding services. (All this just one day after gutting affirmative action in college admissions.) These blockbuster opinions reflected the unapologetic ambition that has dominated the high court since the death of...
November 8, 2023
An Obsolescence Problem
Aziz Huq
The Supreme Court is a tool for holding government within the law. The problem is it doesn’t work especially well anymore. Like spats, the horse-drawn carriage, and the Blackberry, the Court has an obsolescence problem. Consider the Court’s painfully evident incapacity to address new technologies of state power that don’t conform to traditional templates. Once, the right to vote was defeated by literacy tests, grandfather clauses, and poll taxes. Today,...
November 8, 2023
Hands Tied Behind Our Backs
Diana Reddy
In a moment of increasing popular outrage about the most conservative Supreme Court in modern American history, labor cases rarely take center stage. To be sure, America’s left-liberal political coalition pays more attention to these cases, and to labor unions generally, than it would have twenty years ago. But even today, labor’s supporters still have trouble naming all that’s at stake when the Court subverts labor law. Legal attacks on...
November 8, 2023
Depravity Be Damned
Rhiannon Hamam
The first legal document on which I ever signed my name as a licensed attorney was a writ of habeas corpus for a man who had been in jail for six months without ever appearing before a judge, without ever being legally charged with a crime, and without ever speaking to an attorney. I had learned about the Sixth Amendment in law school; in multiple classes I had read Supreme...
