David H. Gans
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Articles by David H. Gans
Ruling Away From America's Second Founding By David H. Gans
Ruling Away From America's Second Founding By David H. Gans Over a century ago, when the Supreme Court helped usher in Jim Crow, Justice John Marshall Harlan took his colleagues to task for betraying the promise of Reconstruction. Dissenting in Plessy v. Ferguson, Harlan insisted that in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.
Ruling Away From America’s Second Founding Original
Skip to the content Never Met a Sequin It Didn't Like Jurisprudence Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. Over a century ago, when the Supreme Court helped usher in Jim Crow, Justice John Marshall Harlan took his colleagues to task for betraying the promise of Reconstruction. Dissenting in Plessy v.
How Congress Can Pass a New Voting Rights Act Despite the Supreme Court Original
Jurisprudence Sens. Charles Sumner and Charles Schumer. This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!) In the month since the Supreme Court gutted what was left of the Voting Rights Act in Louisiana v. Callais,our Constitution’s promise of multiracial democracy has come under concerted attack.
The Supreme Court Has a Chance to Revolutionize Its Approach to the Law Original
Jurisprudence It’s time to treat the 14th Amendment differently. Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. In the next few months, the Supreme Court will issue a spate of potentially landmark rulings on the meaning of the Reconstruction Amendments. In Louisiana v.
Trump’s Voting Nemesis Is at the Supreme Court. We Can’t Afford for SCOTUS to Get It Wrong. Original
Jurisprudence The 5th Circuit is willfully ignoring history. Sign up for Executive Dysfunction, a weekly newsletter that surfaces under-the-radar stories about what Trump is doing to the law—and how the law is pushing back. Voting by mail is a critical part of our democracy.
The Supreme Court Is Being Tested on History Once Again Original
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. In the two decades John Roberts has served as chief justice, the Supreme Court he presides over has repeatedly decimated the Voting Rights Act, striking a series of savage blows to the law long hailed as the crown jewel of the Civil Rights Movement. This term, in Louisiana v.
Trump defying a court order would trigger a constitutional crisis
As federal courts continue to issue injunctions blocking President Trump’s efforts to seize new extra-constitutional powers, the Trump administration seems on the verge of a making the radical claim that it may disregard court orders. “Judges aren’t allowed to control the executive’s legitimate power,” Vice President JD Vance posted on social media on Feb. 9.
What You Should Know About the Right to Protection in the Trump Era
In his second term, Donald Trump has launched a full-scale attack on the Fourteenth Amendment. Rightfully, much of the attention has focused on Trump’s executive order purporting to limit the guarantee of birthright citizenship, roll back civil rights gains, and attack racial diversity. One development that has gone largely unnoticed is the administration’s effort to strip marginalized populations of legal protections in defiance of the amendment’s guarantee of equal protection of the laws.
Trump defying a court order would trigger a constitutional crisis
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Opinion - Trump defying a court order would trigger a constitutional crisis
As federal courts continue to issue injunctions blocking President Trump’s efforts to seize new extra-constitutional powers, the Trump administration seems on the verge of a making the radical claim that it may disregard court orders. “Judges aren’t allowed to control the executive’s legitimate power,” Vice President JD Vance posted on social media on Feb. 9.
Where’d All the Supreme Court’s Originalists Go for the Trump Cases? Original
Skip to the content Jurisprudence This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus.
The People Who Dismantled Affirmative Action Have a New Strategy to Crush Racial Justice
Jurisprudence Last summer, in Students for Fair Admissions v. Harvard College, the Supreme Court’s conservative supermajority struck down race-conscious admission programs adopted by Harvard College and the University of North Carolina as violations of the 14th Amendment’s equal protection clause.
Will the Supreme Court Uphold the 14th Amendment and Block an Oregon Law Criminalizing Homelessness?
Skip to the content Jurisprudence Nearly 38 million Americans live in poverty. In some areas and among some populations, entrenched economic inequality is particularly acute. One in four children in New York City lives in poverty. Black Americans are five times as likely as white Americans to reside in high-poverty neighborhoods. These figures are a testament to the pressing need to address economic inequality and the racial wealth disparity in this country.
City of Grants Pass, Oregon v. Johnson
Attempting to get rid of its homeless residents, the City of Grants Pass began punishing them for being in public with as little as a blanket to protect themselves from the elements. Among other things, the city’s ordinances make it illegal to be found on public property with any “material used for bedding purposes.” There is no exception for people who have no shelter.
The Supreme Court should take up the case against Texas’ mail-in voting regime.
In Texas and a number of other states, voters age 65 and older have the right to vote by mail for any reason, while younger voters generally have to cast ballots in person. As a result, it is harder than it should be for millions of voters to cast a ballot, solely because of their age. Cascino v. Nelson, the case challenging Texas’ second-class treatment of younger voters, is one of the most important voting rights cases before the courts, yet it has flown under the radar.
Alexander v. The South Carolina Conference of the NAACP
In the wake of the 2020 Census, the South Carolina legislature redrew its congressional districts. To suppress the percentage of Black voters in Congressional District (“CD”) 1, the mapmakers adopted a racial target of 17% Black voting-age population (“BVAP”) for the district and moved almost 30,000 Black voters (62% of the Black population in Charleston) out of the district.
John Roberts Just Told Congress How to Fix Bad Supreme Court Decisions
In a stunning 5-4 ruling issued last week in Allen v. Milligan, the Roberts Court, long a foe of the Voting Rights Act, upheld a key component of the VRA and struck down Alabama’s discriminatory Congressional maps.
ISSUE BRIEF: Court Reform and the Promise of Justice: Lessons from Reconstruction
Summary Lewis and Clark Law Review (Forthcoming 2023) The Supreme Court is broken. How should we fix it? This Article argues that Reconstruction, a period in American history when the role of the Supreme Court in American life was hotly debated and Congress repeatedly took steps to reform the federal courts, provides important and underappreciated lessons.
Originalism Demands Only One Answer in the Supreme Court’s Big Elections Case
Moore v. Harper, which will be argued before the Supreme Court on December 7, has been called one of the most important democracy cases ever to come before the court. It is also a defining moment for the many justices on the court who profess to be originalists. Moore raises the question of whether the court’s conservative wing will sanction an anti-originalist power grab that would eviscerate our ability to hold free and fair elections.
RELEASE: Conservative Originalists on Court Show Stunningly Little Interest in Originalist Arguments in UNC Affirmative Action Case
WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Students for Fair Admissions v.
This Court Has Revealed Conservative Originalism to Be a Hollow Shell
When Justice Amy Coney Barrett joined the Supreme Court in 2020, conservatives celebrated that “there are now four avowed originalists on the Court.” To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were—even as they got all the results they wanted.
Originalism is Just Selective History
SOURCE: The Atlantic 7/20/2022 Breaking News tags: gun control, abortion, legal history, Supreme Court, originalism, Clarence Thomas, Samuel Alito, Jurisprudence by David H. Gans David H. Gans is the director of the Human Rights, Civil Rights, & Citizenship program at the Constitutional Accountability Center.
The Framers Were Big Fans of Liberty, Unlike Samuel Alito
Jurisprudence Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization would overrule Roe v. Wade, permit states to enact the most draconian bans on abortion, and provide a roadmap for taking away fundamental rights the Supreme Court has protected for nearly a century. At its core is one of the most crabbed conceptions of liberty ever penned by a Supreme Court justice. To Alito, liberty is essentially an empty idea.
RELEASE: ALEX JONES ADMITS LIABILITY FOR STATEMENTS ABOUT BRENNAN GILMORE | Constitutional Accountability Center
Gilmore Litigation “Strikes a Blow Against Conspiracy Theorists and Disinformation Peddlers” CHARLOTTESVILLE, VA – Brennan Gilmore secured an admission of liability in his federal defamation suit against Alex Jones relating to events during and after the 2017 “Unite the Right” rally in Charlottesville, VA. This is possibly the first time that Jones has admitted to liability for defamation in a court filing.
ISSUE BRIEF: Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion
Summary SMU Law Review Forum (Forthcoming 2022) The conventional wisdom among conservative originalists is that the right to abortion has no basis in the Constitution’s text and history. This Essay demonstrates that this originalist attack on Roe v. Wade and nearly a half-century of Supreme Court precedent is wrong. The text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, establish a family, and reproductive liberty.
OP-ED: No, Really, the Right to an Abortion Is Supported by the Text and History of the Constitution
For decades, conservative originalists have denounced Roe v. Wade and Planned Parenthood v. Casey—two Supreme Court cases that held that the right to abortion is a fundamental liberty protected by the Fourteenth Amendment—as egregious rulings unmoored from anything in the Constitution. As Justice Antonin Scalia argued in 1989, the protection of unwritten fundamental rights fell outside the judicial function.
No, Really, the Right to an Abortion Is Supported by the Text and History of the Constitution
For decades, conservative originalists have denounced Roe v. Wade and Planned Parenthood v. Casey—two Supreme Court cases that held that the right to abortion is a fundamental liberty protected by the Fourteenth Amendment—as egregious rulings unmoored from anything in the Constitution. As Justice Antonin Scalia argued in 1989, the protection of unwritten fundamental rights fell outside the judicial function.
The Mississippi Abortion Case Threatens the Right to Use Birth Control, Marry, and Even Make Choices About Sex
Jurisprudence Associate Justice Samuel Alito at the Supreme Court in Washington on April 23. Erin Schaff/Getty Images The constitutional right to abortion is under concerted attack by a deeply conservative Supreme Court. Last month, the Supreme Court permitted Texas’ ban on abortion at six weeks to go into effect in a one-paragraph ruling decided without full briefing and oral argument, stripping inhabitants of the Lone Star State of constitutional rights enjoyed in the rest of the country. On Dec.
The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism
Jurisprudence Justices Amy Coney Barrett and Clarence Thomas. Tasos Katopodis/Getty Images For decades, the Supreme Court has repeatedly deferred to the police when judging the validity of searches and seizures by the government. For that reason, it is no small feat that, in the recently concluded Supreme Court term, individuals challenging abuse of police authority won every one of the Fourth Amendment cases on the Supreme Court’s merits docket.
The Supreme Court Bears Responsibility for George Floyd’s Death
Jurisprudence The casket of George Floyd is carried by a white horse-drawn carriage to his final resting place at the Houston Memorial Gardens cemetery in Pearland, Texas on June 9, 2020. Andrew Caballero-Reynolds/Getty Images The murder of George Floyd one year ago by Minneapolis police officer Derek Chauvin once again exposed the gaping chasm between our Constitution’s promises and the reality of policing in America.
#PurpleChairChat EXTRA: Discussing Netflix’s Amend series
Discussing Netflix’s docuseries Amend: The Fight for America, which explores the fight for equal rights in America through the lens of the 14th Amendment featuring CAC’s Elizabeth Wydra, Justice Action Center’s Karen Tumlin, and NYU Law’s Professor Melissa Murray. Show Transcript ELIZABETH WYDRA: Hello everyone. I’m Elizabeth Wydra President of the Constitutional Accountability Center. Thank you so much for joining us for this episode of CAC’sPurple Chair Chat series.
In wake of Floyd, Taylor killings, should police have power to enter your home without a warrant?
David H. Gans The footprint of American policing is vast. And police officers respond to a host of problems that have nothing to do with catching people suspected of crimes. Fundamental questions about just how far police power should extend are at the core of a critically important case, Caniglia v. Strom, that the Supreme Court is slated to hear Wednesday.
In wake of Floyd, Taylor killings, should police have power to enter your home without a warrant?
David H. Gans The footprint of American policing is vast. And police officers respond to a host of problems that have nothing to do with catching people suspected of crimes. Fundamental questions about just how far police power should extend are at the core of a critically important case, Caniglia v. Strom, that the Supreme Court is slated to hear Wednesday.
The Supreme Court Needs to Show Its Work
For an institution whose legitimacy depends largely on the public’s perception of its integrity, the growth of unseen, unsigned, and unexplained decisions can only be a bad thing.
The Supreme Court Might Kill Voting Rights - Quietly
At the center of any democracy is the right to vote. If people cannot vote, then they have no say in the laws that govern them and cannot be truly free and equal citizens. But the right to vote is not a machine that runs by itself; it is dependent on the work of laws and institutions. And in America, conservatives have turned those laws and institutions against that right, seeking to reverse hard-fought gains that have helped make the constitutional promise of democracy a reality for all citizens.
The Supreme Court Might Kill Voting Rights-Quietly
Sam Wang: The long-term solution to voter suppression First, Justices Samuel Alito and Amy Coney Barrett suggested that the results test had to be reined in or, as Alito put it, “every voting rule” would be “vulnerable to attack under Section 2.” Both Alito and Barrett seemed uncomfortable with the fact that the results test requires courts to take into account centuries of slavery and anti-Black racism that robbed Black people of wealth and left many mired in poverty.
From The Atlantic: The Supreme Court Might Kill Voting Rights—Quietly
INTERIM ARCHIVES / GETTY / THE ATLANTIC At the center of any democracy is the right to vote. If people cannot vote, then they have no say in the laws that govern them and cannot be truly free and equal citizens. But the right to vote is not a machine that runs by itself; it is dependent on the work of laws and institutions.
SCOTUS will hear Brnovich, conservatives’ latest attack on the Voting Rights Act.
Jurisprudence The Supreme Court will hear a case out of Arizona that attempts to roll back one of the Voting Rights Act’s most crucial components. The U.S. Supreme Court on Feb. 8. Tasos Katopodis/Getty Images In the 2020 election, it was voters of color who propelled Joe Biden to the White House and voters of color who flipped control of the U.S. Senate. Now, state legislatures run by Republicans are engaged in a concerted effort to roll back voting rights, particularly for communities of color.
#PurpleChairChat Episode 12: D.C. Statehood: Why Representation Matters
Why D.C. statehood is a necessary and an important step toward equity. CAC President Elizabeth Wydra, Congresswoman Eleanor Holmes Norton and D.C. Councilmember Christina Henderson discuss on #PurpleChairChat. Get updates on our work Join CAC's Constitutional Progressives email list for updates on our work!
RELEASE: Reaction to DOJ filing in Caniglia v. Strom
WASHINGTON — On the filing of a brief by the U.S. Department of Justice in Caniglia v. Strom earlier this month, Constitutional Accountability Center President Elizabeth Wydra issued the following statement: Constitutional Accountability Center is disappointed with the Department of Justice’s recent filing in Caniglia v. Strom, an important case about the scope of police power that is scheduled for oral argument at the U.S. Supreme Court on March 24.
Washington D.C.’s Second-Class Status is a Stain on Our Democracy
Congress has the express constitutional power to add new states to our nation by enacting simple legislation, a power it has used repeatedly throughout history. It should exercise this power to make Washington, D.C. the 51st state, ensuring that Americans living in the District of Columbia have full voting rights, political representation in Congress, and control over their local affairs.
Lange v. California
In Lange v. California, the Supreme Court is considering whether the Fourth Amendment permits the police, in all cases, to pursue an individual into a private home without a warrant while attempting to make a misdemeanor arrest, or whether specific exigent circumstances are required. Arthur Lange was driving home when a police officer began following him with the intent to conduct a traffic stop, after observing Mr. Lange playing his music loudly and honking his car horn.
The Supreme Court Must Choose Between Trump and the Constitution in the Census Case
Jurisprudence Judge Amy Coney Barrett listens as she is nominated to the Supreme Court by President Donald Trump in the Rose Garden of the White House on Sept. 26. Olivier Douliery/Getty Images Critics of conservative originalism have charged that it is just a fancy word used to reach conservative results and sanction discrimination. The Supreme Court’s blockbuster census case, Trump v.
COMMENTARY: Two election viewpoints
COMMENTARY: Two election viewpoints Brian McNicoll By Brian McNicoll Joe Biden said in one of the Democratic presidential debates that he would work from Day 1 of his presidency to end all fossil fuel production in the United States. He has endorsed a plan that would require more than three-fourths of the buildings in America to be razed and rebuilt to energy- and emissions-saving standards.
The Trump Plan for Legislatures to Appoint Electors Would Be a Blatant Attack on Democracy
Jurisprudence In-person voting at the Salt Lake County election office in Salt Lake City on Thursday. George Frey/Getty Images Election Day is days away, but as of Thursday about 80 million voters had already cast a ballot to choose the next president, whether by dropping their ballot in the mail, using a drop box, or casting a vote at an early-voting location.
Justice Ginsburg Declares Herself an “Originalist” and then Schools Professor (and Justice Scalia) on the Meaning of the Equal Protection Clause
Much of the conversation about the Equal Protection Clause recently has centered around the stunning assertion by Justice Antonin Scalia that discrimination on the basis of sex is not prohibited by the Constitution. Which is why yesterday’s marvelous panel celebrating the 40th anniversary of the Supreme Court’s decision in Reed v. Reed, the first case in which the Court applied the Equal Protection Clause to prohibit discrimination against women, was so refreshing and welcome.
How John Roberts Quietly Made It Harder to Vote
Jurisprudence Chief Justice of the US Supreme Court, John Roberts and Justice Elena Kagan, watch as the flag-draped casket of Justice Ruth Bader Ginsburg arrives at the Supreme Court in Washington, DC, on September 23, 2020. Andrew Harnik/Getty Images There are 250 COVID-related election cases making their way through the nation’s state and federal courts.
Protesters Demand the Protection our Constitution Promises. Courts are Beginning to Listen.
This summer, protesters around the country have demanded that our elected and community leaders pay attention to state-sanctioned violence by police officers and support the Movement for Black Lives. There is evidence these calls are reaching another audience as well: federal judges, who hear the legal challenges that often result from unconstitutional uses of police force.
Challenges to State Voter ID Laws Signal Our Need for a Ninth Justice
OPINION: Federal courts have been key in upholding the fundamental right to vote. (Credit: danielfela/iStockphoto.com) A month out from the first presidential election since the U.S. Supreme Court eviscerated the Voting Rights Act, courts across the country are brimming with challenges to state laws meant to blunt the growing voting power of racial minorities. In many cases, the courts have struck down these laws, reinforcing the Constitution’s promise of equal access to the ballot box.
New York v. Donald Trump
In State of New York v. Donald Trump, the district court for the Southern District of New York is considering, among other things, whether a Trump Administration rule excluding undocumented immigrants from the apportionment base violates the Constitution. The Constitution imposes on the federal government the constitutional obligation to count all persons residing in the United States regardless of their citizenship status for the purpose of apportioning representatives to Congress.
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