The New Supreme Court

[…] For conservatives, what I have described is an occasion for great celebration. They have succeeded in their goal of a very conservative Court. For liberals, like me, the challenge is enormous. No longer can we imagine the Court as a possibility for progressive change. We must look to state courts and the political process for that, while fearing how the Court will strike down progressive federal, state, and local laws. We also must consider reforms of the Supreme Court—such as increasing its size—if we want an alternative to a far-right Supreme Court for a long time to come.

What We Can All Learn from Ruth Bader Ginsburg

Tracing the arc of someone’s life and examining their choices, relationships, education, and career path are our usual reactions to the death of someone notable. In RBG’s case, the results of such study are almost overwhelming, but I focus in this essay on five lessons I learned from her. […]

U.S. Settler Colonialism, White Supremacy, and the Racially Disparate Impacts of COVID-19

This Essay will connect the persistent strategies, logics, and identities created by settler colonialism to the disparate health impacts of COVID-19 in Indigenous, Black, and immigrant of color communities in the United States. By offering a framework that uncovers the root causes of ongoing patterns of systemic oppression, this Essay hopes to inspire reform efforts that seek to alter such patterns by advancing reform efforts that are grounded in truth, justice, and reconciliation. […]

The Counter-Majoritarian Difficulty of a Minoritarian Judiciary

Popular selection of judges offers a partial answer to the charge that the judiciary has usurped the role of the People in constitutional governance. Particularly in today’s intensely polarized environment, whether judges are selected through a process that actually reflects popular preferences is thus of critical importance to the democratic legitimacy of the constitutional order. […]

The Supreme Court and the 117th Congress

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses. […]

Narrowly Tailoring the COVID-19 Response

The greatest impact of the novel coronavirus on most of our lives has not been physiological. Rather, the impact has come from state governments’ responses to the virus. In much of the country, stay-at-home measures have shut down our lives—including our ability to continue with our employment, study, religious practice, socializing, and access to arts and entertainment. Commentary on the legality of these measures has been limited at the time of writing, but some commenters have suggested that courts might find them vulnerable on the grounds that they cannot survive heightened judicial scrutiny.

Unequal Access: How Debt Exacerbates Inequality in Education Financing

When school funding flows from property taxes, it follows that geographic wealth disparities will lead to unequal districts. In the 1970s, courts began wading into the legally murky water of school funding to correct such gaps, but they did so without a comprehensive understanding of what creates them in the first place. Courts focused on property taxes and spending per pupil to measure inequality, instead of debt and the ability to access financial markets. Given this incomplete understanding of inequality, most courts shirk the opportunity to ensure that students have equal access to education, deferring school funding questions to state legislatures. […]

Carrying on Korematsu: Reflections on My Father’s Legacy

Five months before he passed away, my father, Fred Toyosaburo Korematsu, gave me a charge: continue his mission to educate the public and remind people of the dangers of history. At that time, I was running my commercial interior design firm. I was far from a public speaker, educator, and civil rights advocate. However, for […]