Yesterday, supporters of affirmative action in admissions got a reprieve. The Supreme Court voted 7-1 to return the case to the 5th Circuit for reconsideration. But that reprieve won’t change the ultimate calculus that spells the doom of affirmative action in school admissions. The problem is a fundamental contradiction between the allowed reason for such policies…
Judiciary
Close of the Term
It’s one of my favorite times of year, the close of the Supreme Court’s term. Yes, I’m nerdy like that. But these are some big, significant decisions being made. I suggest, as I always do, that you follow along with Slate‘s Supreme Court Year in Review. Though I miss having Dahlia Lithwick involved, Emily Bazelon…
John Roberts: A Moderate Chief Justice
In my pre-ACA ruling posts, I was critical of Chief Justice Roberts but also still holding out hope that he’d find a way to thread the needle. Now I’m ready to congratulate him on a job well done. Here are what I regard as the highlights of the ACA ruling: A sound principle of judicial…
Judicial Activism
As a follow up to my last piece and the blog entry by James Fallows, I’d like to address the balance between ideology and deference in the Supreme Court. Fallows is upset that justices who claimed a fealty to precedent are now going “out of their way … to decree new law contrary to what…
Institutional Norms and Moderate Politics
James Fallows today touched on one of the foundations of political moderation as I’m defining the term here. That is a commitment to institutional norms that supersedes (or at least compliments) other values. Say, for instance, you’re a conservative Republican U.S. Senator from Pennsylvania. Most of the time, fine, act like a Republican and vote with your…
The Foundations of My Constitutional Beliefs
Jacob asked me to explain why I think it’s acceptable for the federal government to get involved in health care, education, etc. In many ways, this gets to the central purpose of the whole blog, but I think it’s worth trying to give a more succinct answer to the specific issues he raised. So here is a…
Why I Still Revere an Imperfect Constitution
Recognizing that the U.S. Constitution is imperfect and rejecting Constitutional originalism are not reasons to throw the document out. Let me explain some of the reasons that I think the Constitution does need to be defended as the foundation of our government and how I think we can do so. 1. Its survival. The United States has…
An Imperfect Constitution
For those who imagine the original Constitution was perfect or nearly perfect, two examples to consider: 1. Slavery is the most obvious way in which the Constitution was far from perfect. For a nation predicated on liberty, a founding document that protected hereditary chattel slavery constitutes a huge injustice. To the extent that the preservation…
Constitutional Originalism
Over the last decades, certain conservative political and legal activists have been very effective in selling a vision of the original Constitution as (1) basically perfect and (2) perfectly clear. From this perspective, the only modern approaches to the Constitution are to either (a) maintain it or (b) degrade it. This perspective has been effective in…
Democracy and Technocrats II
As promised earlier, here are my main concerns with technocratic government, from the new governments in Greece and Italy to the emergency city managers cropping up in the United States. To begin with I would actually like to set aside one argument: that technocrats are often associated with autocratic government. There are plenty of historical…