Warren Court

If you haven't already, please read what Henry Paul Monaghan has to say about the lawsuits challenging the Affordable Care Act. Monaghan is the Harlan Fiske Stone Professor of Constitutional Law at Columbia.

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Judge Mental

Newt Gingrich’s attack on judicial independence—in particular, his call for Congress to subpoena judges and force them to explain their rulings under threat of arrest—is widely viewed as one of the reasons his now-moribund presidential campaign jumped the shark. Both conservative and liberal pundits were alarmed by Gingrich’s assault on the concept of judicial review, and rightly so. But, if Gingrich’s judge-bashing was extreme, it was not an isolated phenomenon.

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The Collapse of American Criminal Justice By William J. Stuntz (Harvard University Press, 413 pp., $35) William Stuntz, who unfortunately died young, before this book was published, was a leading criminal law scholar, and this volume is exceptionally rich, insightful, provocative, and well-written. It is bound to have great influence on academic thinking, and perhaps in time on the criminal justice system itself.

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Obama’s Law

On March 29, 1989, at a time when many of his fellow first-year law students were beginning to prepare for the spring semester’s looming examinations, Barack Obama paid a visit to the office of eminent constitutional law professor Laurence Tribe. Obama had not dropped by to brush up for a test. In fact, he had yet even to enroll in an introductory constitutional law course, a gratification Harvard Law School denies its students until the second year of study. Obama’s call was purely extracurricular: He wanted to discuss Tribe’s academic writings.

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When members of the House read aloud the Constitution at the start of the legislative session last week, the event was widely regarded as a political stunt. Commentators mocked the House GOP for squabbling over the procedure for reading the text and for skipping passages that had been superseded by amendment—although it’s not clear what’s wrong with skipping provisions that are no longer in effect.

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Louis D. Brandeis: A Life By Melvin I. Urofsky (Pantheon, 955 pp., $40) I. In 1916, Herbert Croly, the founder and editor of The New Republic, wrote to Willard Straight, the owner of the magazine, about the Supreme Court nomination of Louis Brandeis. Croly enclosed a draft editorial called “The Motive of Class Consciousness,” and also a chart prepared by a lawyer in Brandeis’s office showing the overlapping financial interests, social and business connections, and directorships of fifty-two prominent Bostonians who had signed a petition opposing Brandeis’s nomination.

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Confirmed Liberal

Soon after this magazine was founded, the editors joined with relish a fight over President Woodrow Wilson’s nomination of Louis Brandeis to the Supreme Court. Defending Brandeis against his Boston enemies—the financial oligarchs whom he had attacked in his book Other People’s Money—we championed his vision of liberal judicial restraint: namely, the view that courts should defer to progressive laws and regulations enacted by the states, Congress, and federal agencies.

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Confirmed Liberal

Soon after this magazine was founded, the editors joined with relish a fight over President Woodrow Wilson’s nomination of Louis Brandeis to the Supreme Court. Defending Brandeis against his Boston enemies—the financial oligarchs whom he had attacked in his book Other People’s Money—we championed his vision of liberal judicial restraint: namely, the view that courts should defer to progressive laws and regulations enacted by the states, Congress, and federal agencies.

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In a 1998 profile of Elena Kagan in the New Republic, Dana Milbank described Bill Clinton’s deputy chief of domestic policy as “wonderwonk,” an “all purpose brain” in the White House  and a “nerd who could talk tough.” In addition to acting as a walking encyclopedia for Bill Clinton on constitutional and legal issues, Kagan convinced John McCain and other Senate Republicans to accept the Food and Drug Administration’s authority to regulate tobacco—even though she herself was a former smoker who then indulged in the occasional cigar.

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The Constitution in 2020 Edited by Jack M. Balkin and Reva B. Siegel (Oxford University Press, 355 pp., $19.95) There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on.

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