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On Constitution Day, thoughts of gerrymandering, money in politics, and other modern problems
Raphael’s “School of Athens,” painted in the early 16th century, famously depicts Plato and Aristotle in dialogue about their respective philosophical approaches. Plato points skyward to emphasize the primacy of abstract principles – found in the Realm of Forms – whereas Aristotle extends the palm of his hand over the ground, emphasizing the need to […]
Three observations about Justice Alito’s draft opinion in Dobbs – commentary
There is much to say about Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, which was leaked from the United States Supreme Court on May 2. Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the […]
Commentary: The workplace vaccine decision and its implications for federal regulatory power
In a recent commentary, I contrasted the pragmatic consequentialism of retiring Supreme Court Justice Stephen Breyer – and, more generally, the other two members of the court’s liberal bloc (Justices Sonia Sotomayor and Elena Kagan) – with the structural formalism of the court’s six-justice conservative supermajority. I also suggested that this framework may provide a […]
Commentary: The pragmatic consequentialism of Justice Breyer
Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by […]
Commentary: Divisive concepts and regulation by threat of baseless lawsuit
At the State House, attention has returned to New Hampshire’s so-called “divisive concepts” law. The law, enacted in 2021, bars public K-12 teachers from engaging in certain forms of instruction on issues of race, gender, and other forms of discrimination. The Legislature is presently considering bills both to repeal the law and to extend it […]
Commentary: New Hampshire’s ‘divisive concepts’ law and the big chill
Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that […]