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The Affirmative Action Shuffle

Claremont Institute Senior Fellow Edward J. Erler discusses Fisher v. Texas in light of the jurisprudence of affirmative action launched by Regents v. Bakke in 1978, and contemplates the rise of the use of racial preferences for preferred ends, rather than the abolition of preferences demanded by the Civil War amendments.

Posted on on July 10, 2013

Justice Thomas Gets to the Point: The Court on Civil Rights

Claremont Institute Senior Fellow Ken Masugi comments on Justice Clarence Thomas's concurrences in the recent civil rights cases and makes the case for the Justice's long-standing pursuit of constitutional colorblindness.

Posted on on July 9, 2013

Misplaced Hysteria About the Voting Rights Case

Michael Uhlmann offers some political and historical context and commentary on this week's Voting Rights Act case, Shelby County v. Holder.

Posted on on June 27, 2013

The Court and Marriage: Anthony Kennedy's Hate Speech

Mark Twain said of Wagner's music that "It's not as bad as it sounds." The decisions brought forth on Wednesday morning by the Supreme Court are far worse than they sound. If we credit the authors of the two main opinions, Justice Kennedy (in U.S. v Windsor) and Chief Justice Roberts (in Hollingsworth v. Perry, on Proposition 8 in California), the two decisions affect to be quite limited in their reach. The justices would feign to be artisans of their craft, carefully shaping judgments precisely confined—or even, in the case of Roberts, holding back from a judgment altogether. But in truth, these judgments cannot be cabined. They lay down the predicates for litigation that will clearly unfold now, and with short, easy steps, virtually all of the barriers to same-sex marriage in this country can be swept away. Even the constitutional amendments, passed by so many of the States, can now be overridden.

Posted on on June 27, 2013

Counting Down at the Court, Tuesday: Takings of Property, and Voting Rights

By 10:00 today, Wednesday, we will know whether marriage as an institution will be recast by the Supreme Court. But on the way to that decision the Court had to resolve some other cases of the moment, including the Fisher case from Texas on racial preferences and a serious challenge to the Voting Rights Acts (Shelby County, Alabama v. Eric Holder). On Tuesday the Court resolved the case on Voting Rights. But it also filed a notable case on rights of property and the Takings Clause (Koontz v. St. Johns River Water Management District). A conservative block of five justices held together to put across both decisions, and conservatives could walk away this morning thinking, “so far, so good”—and could this possibly hold for Wednesday?

Posted on on June 26, 2013

Counting Down at The Court: Racial PreferencesóJustice Kennedy in Control

We continue waiting this week for the momentous decisions that the Court will be releasing in this final week in the term, especially the cases on marriage. Hadley Arkes offers his account of the action in the Court on Monday morning, including the most notable case, on racial preferences at the University of Texas. Justices Scalia, Thomas, Roberts,  and Alito have been ready to strike more decisively at the whole scheme of racial preferences. But the outcome of the case was controlled by Justice Kennedy, supplying the fifth and necessary vote. Only Clarence Thomas made the case again for the categorical wrongness of racial preferences. Professor Arkes considers here the depth of the argument not made, and tries to gauge where the cases are likely to move now.

Posted on on June 24, 2013

In the Week of Waiting: The Supreme Court on the 5th Amendment and "Natural Language"

This is the Week of Waiting: In the final days of the term we are waiting for the Supreme Court to release decisions on some of the most vexing issues in our politics, on racial preferences, the Voting Rights Act, and above all the meaning of "marriage." Yesterday the Court administered a shock of sorts to the friends of federalism when it denied, to the people of Arizona, the rightful authority to insure that the power of voting will be shared only with fellow citizens. The Court also released yesterday a decision on the Fifth Amendment that may well be overlooked as the attention is drawn to the cases even more momentous. But Hadley Arkes argues that the case brings back the teachings of James Wilson and Thomas Reid on "natural language," and it leads to some hidden truths on "self-incrimination."

Posted on on June 18, 2013

The Unitary Papacy: What the Pope Can Learn from the American Constitution

2012 John Marshall Fellow Michael Fragoso ruminates on the lack of sufficient unity and energy in the pontifical commander-in-chief.

Posted on on May 22, 2013

Did Senator Lee Forget the Born-Alive Infants Protection Act?

Hadley Arkes has written a piece for our friends at Public Discourse arguing that we don’t need a new resolution from Congress to address the wrongs of clinics like Kermit Gosnell’s—the Born-Alive Infants Protection Act already serves that purpose, and we should restore the civil penalties originally attached to it. Check it out here.

Posted on on May 14, 2013

Revisiting The Born-Alive Infants Protection Act

Hadley Arkes has a new essay that is also running in The Weekly Standard, arguing that in light of the horrors committed by Kermit Gosnell, now is the time for pro-life Congressmen to revisit the Born-Alive Infant Protection Act and clear away the obstacle to its enforcement. We have reprinted his essay here as well.

Posted on on April 29, 2013

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