Court of Appeals

Dear Courts, Please Ignore Mitch McConnell's Latest Lawsuit
December 07, 2012

Senate Minority Leader Mitch McConnell has a habit of rushing to court to reverse his political defeats. The ink wasn’t dry on the McCain-Feingold Bipartisan Campaign Reform Act when McConnell filed a lawsuit challenging its constitutionality in court in 2002. McConnell and Senate Republicans supported similar suits challenging the Affordable Care Act moments after President Obama signed it. And now McConnell is at it again. Along with 41 Republican Senators, McConnell has filed a lawsuit, which the U.S.

The Supreme Court Exposes Obama’s Circular Logic on Wiretapping
October 29, 2012

The Obama administration has taken a position that makes the Bush pro-secrecy campaign seem pale in comparison

Scenes From a Southern Gothic Murder Trial
October 26, 2012

Americans love a good procedural, and the Jeffrey MacDonald murder case is right up there with O.J. Simpson in the true crime genre. Ever since MacDonald, a Green Beret doctor at Fort Bragg, was arrested for allegedly murdering his wife and two young daughters over 40 years ago, Americans have been captivated by the sordid tale, and bitterly divided over its meaning. The result of the military's initial investigation was that the evidence and charges against MacDonald were "not true," so he was released.

The Court and the Future of Everything You Hold Dear
October 19, 2012

You shouldn't read too much into John Roberts's recent display of jurisprudence.

Yet Another Round of the Scalia-Posner Fight
September 18, 2012

Last month Richard A. Posner, a Chicago judge on the U.S. Court of Appeals, reviewed Antonin Scalia’s new book, Reading Law: The Interpretation of Legal Texts. Our review has apparently hit a nerve. To recap:  Posner accused the staunchly conservative justice of taking a hypocritical and “disingenuous” stance on his passive interpretation of law.

The Conservative Legal Stars Who Presaged John Roberts' Health Care Decision
August 17, 2012

John Roberts's Obamacare decision followed conservative reasoning that even Paul Ryan should support.

From the Archives: The Long Campaign Against DOMA
June 01, 2012

The Defense of Marriage Act (DOMA) was in the news yesterday thanks to a decision by the 1st U.S. Circuit Court of Appeals finding DOMA unconstitutional. TNR has been speaking out against the law since its inception. Here's a look at an article by William Eskridge from a 1996 issue of the magazine that explores the historical circumstances, constitutional issues, and electoral politics surrounding DOMA, all of which will remain in focus as DOMA meets with further scrutiny in the Supreme Court:  The full faith and credit clause is about to become the Constitution's hottest provision.

Second Opinions
May 04, 2012

For the past few months, the legal discussion in Washington has centered around the Supreme Court’s upcoming ruling on health care reform. Far less attention has been paid to a decision issued by the U.S. Court of Appeals for the D.C. Circuit on April 13—even though it may prove, in the long run, to be similarly significant. At first glance, the case, Hettinga v. United States, doesn’t seem to merit much attention, since it concerns a less-than-scintillating subject: the production and distribution of milk.

Radicals at the Supreme Court
April 03, 2012

Legal critics of the Affordable Care Act insist that their case is consistent not only with the original intent of the Constitution, but also with modern precedent. They say that the individual mandate is so "unprecedented" that it violates contemporary understandings of the "Commerce" and "Necessary and Proper" clauses, which generations of justices and legal scholars have interpreted broadly. It's a critical claim, because defenders of the law (including me) have suggested that the only way to overturn the mandate is to reject precedents and to establish new boundaries on federal powers.

Let's All Take a Moment to Breathe, OK?
March 27, 2012

Everybody calm down. And when I say everybody, I include myself. Tuesday’s oral argument at the Supreme Court was not the finest hour for health care reform, for the philosophy of activist government, or for Solicitor General Don Verrilli. But oral arguments don’t typically change the outcome of cases. They are important primarily for the signals they send about the justices’ thinking.