judiciary

Between Feinstein and the Blue Slip, Senate Dems Making Historic Blunders on Judiciary

Barack Obama's administration left dozens of vacant federal judgeships for Donald Trump to fill. If the Biden administration repeats this, it won't be only due to Republican obstruction of nominees. 

Originalism is Doomed to Failure. Will it Destroy Democracy First?

by Richard Striner

Textualism as a theory of judicial interpretation arose as a semantic game among academics, but has been put to brutal use by the Federalist Society to undermine the democracy that most 21st century Americans enjoy. 

Judge Laurence Silberman Dies—Do His Latter Years Make the Case for Judicial Reform?

A legal observer suggests the influential judge's reputation might have benefitted from judicial term limits, as his penchant for judicial restraint took a hard turn toward activism in decisions on gun control and public pronouncements about confederate monuments. 

The Amendment Process is the Constitution's Biggest Flaw

by Jedediah Britton-Purdy

We are not the "we, the people" of 1789. Changing Article V to make the Constitution more easily amendable is the key to breaking the shackles the document places on democracy.

Historic Echoes as Mississippi Senators Vote No on Jackson Nomination

Did some statements made by Republicans echo Senator James Eastland's questioning whether Thurgood Marshall was "prejudiced against the white people of the South"? 

KBJ Confirmation Questions Show Republicans Willing to Throw Out Vast Swaths of Civil Rights Law

by Heather Cox Richardson

"Madison was on to something when he warned that there was a connection between establishing a religion and destroying American democracy."

12 Questions that Would Actually Help Us Learn Something about Ketanji Brown Jackson

Legal historians, law professors, and other scholars propose productive questions Senators could ask Biden's Supreme Court nominee, if they cared to stop grandstanding and speechifying.

Ketanji Brown Jackson's Confirmation Hearings Highlight the Historic Domination of the Judiciary by White Men

"Representation has tangible benefits — research has shown the benefits of increasing judicial race and gender diversity, including heightening trust within minority populations and addressing gender bias in courtrooms."

How the Left Lost the Constitution

by Benjamin Morse

 Law professors Joseph Fiskin and William Forbath revisit the Reconstruction Amendments to argue that they represent a fusion of a "democracy-of-opportunity" tradition in the law that embraces an affirmative government duty to redistribute wealth. 

That Stench is Coming from the Supreme Court

by James D. Zirin

The Supreme Court's oral arguments in the Mississippi abortion case seem to show a conservative bloc wholly unconcerned with precedent, principle, or the legitimacy of the judiciary as they rush ahead to end abortion rights. 

Jefferson Expected the Constitution to Last 19 Years. Where are We Now?

by Jesse Wegman

Our eighteenth-century Constitution combines with twenty-first century partisanship to block meaningful reforms and place basic rights in the hands of the judiciary. A panel of legal scholars weighs in on the possibility of change. 

We Need a Second Season of ‘Mrs. America.’ Here’s Why

by Magdalene Zier

After the defeat of the ERA, Phyllis Schlafly's activist career entered a second act, pushing the federal judiciary in conservative directions.

Originalism’s Original Sin

by Adam Shapiro

Liberal critics should understand the ways that Constitutional originalism's practices of reading and resolving conflicts in the text owes a great deal to biblical literalism. Historians of religion can help understand what's at stake. 

The Politicization of the American Judiciary

by James D. Zirin

Judicial elections are the latest target of GOP gerrymandering, spurred by the rejection of Team Trump's election lawsuits. 

Biden Can Advance Racial Justice, but Only if Democratic Senators Ditch an Old Tradition

The Senate's "blue slip" rule allows senators to privately exercise a veto over judicial nominations for their state. Like the filibuster, it has been used to derail the nominations of liberal judges as well as women and judges of color. A liberal judicial advocate argues that it should be scrapped. 

Lifetime Tenure Meant Even Trump’s Supreme Court Picks Could Resist His Pressure

by Teri Kanefield

Alexander Hamilton's arguments for a independent judiciary in the Federalist Papers were borne out by the Supreme Court's dismissal of the pro-Trump suit brought by Texas's attorney general. 

Our Undemocratic Constitution

by Julie C. Suk

"We should not misconstrue the success of the midcentury Court: the few bright moments of inclusive constitutionalism, from Brown to Roe, did not make our Constitution inclusive and democratic."

Amy Coney Barrett’s Philosophy Has Far Worse Roots Than Most Americans Know

by Simon Gilhooley

At the core of originalism is a fundamentally conservative effort to limit the possibilities of our constitutional order to the imagination of historical figures from the 18th century, which included racial hierarchy and support for chattel slavery.

Burn it All Down: A Growing Number of Liberal Laywers Want More than Court Packing

Liberals in the legal profession and legal academia have begun to grapple with the idea that the courts serve power as much as justice, and norms of collegiality are part of the problem. Are they prepared to embrace a more confrontational and openly political idea of the law? 

The Gonzo Constitutionalism of the American Right

by Corey Robin

"Conservatism has ceased to be a political project capable of creating hegemony through majoritarian means."