Supreme Court

John Roberts's Tragedy is of His Own Making

by Jeff Shesol

John Roberts has the power to arrest the Court's slide into disrepute, extremism, and trollishness. He's chosen not to use it. 

SCOTUS's Affirmative Action Ruling no Coincidence; Court Seeks to Preserve Power of Small Elite

by Eddie R. Cole

Long before affirmative action was established, white elites fought to ensure that higher education benefitted themselves and their children. It is this political legacy that the Court has affirmed. 

SCOTUS's Affirmative Action Decision Caps a Decades-Long Backlash

by Jerome Karabel

A scholar of university admissions says that the decision will be a "monumental setback for racial justice" that is rooted in myths about the policy that have surfaced through decades of opposition to affirmative action. 

SCOTUS Declares Race-Aware Admissions at Harvard, UNC Unconstitutional

The decision makes most race-based affirmative action admission policies at selective universities illegal. Historians discuss the decision, the history behind it, and the likely effects. 

Clarence Thomas Took a Swipe at My Dissertation Research in a Decision. Here's Why He's Wrong

by Gregory Ablavsky

Historians' work played a huge role in a recent decision affecting Native American children. But the dissent by Clarence Thomas showed an appalling willingness to cherry-pick from the past that undermines originalism's own claims to legitimacy. 

Kagan, Sotomayor Join SCOTUS Cons in Sticking it to Unions

By an 8-1 vote, with only Ketanji Brown Jackson in dissent, the Court allowed employers to bypass the National Labor Relations Board to seek potentially crippling tort judgments against unions for business losses related to strikes, removing a major incentive for good-faith negotiation by employers. 

New Evidence: Rehnquist Pretty Much OK with Plessy v. Ferguson

by Richard Hasen and Dahlia Lithwick

A 1952 memo that Rehnquist wrote defending "separate but equal" was raised during his Supreme Court confirmation hearings and dismissed as work-for-hire. It is now clear that he supported the narrow interpretation of the 14th Amendment that the current court majority hopes to use to undermine civil rights. 

The Modern Relics in Crow's Cabinet of Curiosities

by Matthew Dennis

Understanding Harlan Crow's collection, including Nazi memorabilia, as a set of relics (and not trophies or investments) helps to clarify the unease Americans feel about his understanding of power and cultivation of relationships with people of influence over the federal judiciary.

The Rise of the SCOTUS "Shadow Docket"

An increasing amount of the court's consequential business is being conducted through emergency orders in response to lower court rulings, without public argument or signed opinions, argues legal scholar Steve Vladek. Although there are reasons for fast action in some cases, the court's public legitimacy is undermined.

After Dobbs, Abortion Politics are Straining the Republican Coalition

by Daniel K. Williams

When the party could focus on appointing anti-Roe judges, the Republicans could make abortion a political issue without having to decide matters of policy that inevitably leave parts of their coalition angry and disappointed. Have they lost by winning? 

LOC Opens Personal Papers of Justice John Paul Stevens to Public

The justice's personal papers show, among other things, that Antonin Scalia and Anthony Kennedy were upset that the harshness of dissenting opinion in Bush v. Gore would lead to public criticism of the conservative justices who helped George W. Bush to the White House. 

On the History, Alito's Wrong: Attacks on Justices Nothing New

by Kevin M. Kruse

Even if Samuel Alito or Clarence Thomas were burned in effigy or impeached, those challenges to their judicial integrity would be very much precedented. 

Missouri Group's Claim to Standing in SCOTUS Debt Relief Case Based on False Claim of Harm

In Biden v. Nebraska, the court used the "shadow docket" to accept a case for review without verifying the facts presented in the complaint. As it turns out, the claim by a Missouri-based student loan servicing agency that it would be harmed by debt relief appears to be flatly untrue. 

SCOTUS's Stay of Mifepristone Ruling a Win for Abortion Rights, but Shows Dangerous Power of "Shadow Docket"

Important judicial decisions are increasingly made through the procedural rulings the Court makes on lower-court decisions, without extensive briefings, arguments, or publicity. Law professor Steve Vladek explains why this matters, and why Samuel Alito is mad at him.

Liberal SCOTUS Judges are Calling Out the Court's Crisis of Legitimacy. Why Aren't Dem Politicians?

by Simon Lazarus

A Washington legal veteran argues that the judicial branch has always been political. The liberal ideal of a branch separate from partisan concerns is a historical oddity that the conservative legal movement has rejected in substance; legal liberals must do the same. 

SCOTUS Seems Ready to Reject Independent State Legislature Idea in a Win for Democracy

by J. Michael Luttig

The retired federal jurist observed oral arguments in a case that would allow state legislatures to reject judicial review in setting the rules of elections, potentially leading to politically-motivated mayhem in federal elections. He thinks that the Court will reject the theory. 

The Scandal isn't in Clarence Thomas's Corruption, but His Jurisprudence

by Corey Robin

It's a mistake to ask if receiving gifts from a wealthy benefactor has shaped the Justice's rulings. His rulings have paved the way for the power of money in America. 

SCOTUS Arguments in Debt Relief Cases Show the Fracturing of the Bipartisan "Education Myth"

by Jon Shelton

Two Justice's preoccupation with the fairness of relieving student debt proclaimed a concern that the government not pick economic winners and losers. But the student debt crisis reflects a decades-long bipartisan sales pitch, backed by policy, that college is the individual's path to prosperity. That pitch is now wearing thin. 

The History of State Interposition Shows Federalism is a Deliberative Process, not a Set of Rules

by Christian G. Fritz

The efforts of state legislatures to oppose federal law have been varied. In sum, they show that the Supreme Court cannot dictate the distribution of power under federalism; Americans will have to keep figuring it out as we go, through political deliberation.

SCOTUS Leak "Investigation" Shows Longstanding Need for Real Oversight

by Glenn Fine

A veteran executive branch watchdog says the effort to find who leaked the Court's Dobbs decision draft was doomed to fail from the start and reflects the impunity that the Justices enjoy.