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Articles by Lincoln Caplan
On the Fourth of July in 1895, a church weekly in Boston, The Congregationalist, published Katharine Lee Bates’s poem “America.” The paper described it as having “the true patriotic ring.” Bates was 35, the daughter and granddaughter of Massachusetts Congregational ministers, and an English professor at Wellesley College, outside Boston. A couple of years before, on her first travels out west, she had spent a few weeks teaching at a summer school in Colorado Springs.
In September of 2022, the stormy remains of a giant typhoon struck 1,300 miles of Alaskan coastline. Waves more than 50 feet tall and winds around 90 miles per hour beat up 40 low-lying communities, ravaging beaches, ripping up roads, and ruining houses. The storm caused fires and power outages, spoiling fish and game that had been cleaned and frozen to last until the following spring. Many people had to skip meals. Some ran through their emergency rations or depended on others for something to eat.
Learned Hand’s Spirit of Liberty
On a spring Sunday, eighty years ago in Manhattan’s Central Park, a hundred and fifty thousand newly naturalized citizens gathered to recite the oath that they would “bear true faith and allegiance” to the United States. They made their declaration as part of a celebration of “I Am an American Day,” created by Congress to salute the blessings of citizenship. In attendance were almost a million and a half people, who heard speeches by an immigrant from Prussia, Senator Robert F.
The Supreme Court Affirmative Action Rulings: An Analysis [harvardmagazine.com]
A legal-affairs journalist explains the implications. Montage illustration by Niko Yaitanes/Harvard Magazine; photographs of sky and gavel by Unsplash By Lincoln Caplan, Harvard Magazine, June 30, 2023 FOR ALMOST HALF A CENTURY, race-conscious admissions have been of central importance to Harvard and other selective colleges and universities. Justice Lewis F. Powell, Jr., LL.M. ’32, in his controlling opinion in the landmark case of Regents of the University of California v.
The Supreme Court Affirmative Action Rulings: An Analysis
Your independent source for Harvard news since 1898 | SUBSCRIBE Log-in | Register Articles News more News Research more Research Students more Students Alumni more Alumni Harvard Squared more Harvard Squared Opinion more Opinion Crimson athletics meets the transfer portal, compensation for student names and images, different demographics, and other looming threats July-August 2023 Arts more Arts Sports more Sports Crimson athletics meets the transfer portal, compensation for student names and...
“Students as Diverse as This Nation of Many Peoples”
Your independent source for Harvard news since 1898 | SUBSCRIBE Log in | Register Articles Current Issue Archives Class Notes To access Class Notes or Obituaries, please log in using your Harvard Magazine account and verify your alumni status. Don't have a Harvard Magazine account?
Justice Elena Kagan, in Dissent
Your independent source for Harvard news since 1898 | SUBSCRIBE Log in | Register Articles News more News But the annual trends report shows surprising reliance on non-ladder faculty in the classroom, and continuing struggles with diversity.
Is the Supreme Court’s Role Undemocratic?
Your independent source for Harvard news since 1898 | SUBSCRIBE Log in | Register Articles News more News Research more Research Students more Students Alumni more Alumni Harvard Squared more Harvard Squared Opinion more Opinion Arts more Arts Sports more Sports Harvardiana more Harvardiana Podcast Ask a Harvard Professor A new podcast from Harvard Magazine more Podcast Episodes Current Issue Archives Class Notes To access Class Notes or Obituaries, please log in using your Harvard Magazine...
Justice Breyer and Parents Involved
SYMPOSIUM By Lincoln Caplan on Feb 4, 2022 at 3:42 pm Justice Stephen Breyer and his daughter and grandson visit President Barack Obama in the Oval Office in 2011. (White House photo by Pete Souza) This article is part of a symposium on the jurisprudence of Justice Stephen Breyer. Lincoln Caplan is a senior research scholar and a visiting lecturer in law at Yale Law School and also teaches in Yale’s English and political science departments.
Both Sides Now
Tomiko Brown-Nagin is a legal historian of what she calls “one of the most celebrated social movements of all time—the black freedom struggle.” Two photographs sit on a bookcase behind her desk at Greenleaf House, the residence of the Harvard Radcliffe Institute’s dean—her role since 2018. One shows her with Justice Sonia Sotomayor, the other with Congressman John R. Lewis, LL.D. ’12. They are proxies for contrasting ways she thinks about the American civil-rights movement.
The Pentagon Papers case today
The First Amendment shields the press, Justice Hugo L. Black wrote 50 years ago in a concurring opinion in the Pentagon Papers case, so the press can “bare the secrets of government and inform the people.” In that historic ruling, the Supreme Court put an end to a temporary injunction against publication of the Defense Department’s secret history of the American involvement in the Vietnam War.
Cultural or Criminal? - The American Scholar
The lethal injection room at San Quentin State Prison, completed in 2010 (California Department of Corrections and Rehabilitation) Let the Lord Sort Them: The Rise and Fall of the Death Penalty by Maurice Chammah; Crown, 354 pp., $28 For the past half century, Texas has executed almost two out of every five people put to death in this country for violent crimes. Harris County, with Houston making up about half its population, has been the epicenter.
Review of Kimball and Coquillette, “The Intellectual Sword,” by Lincoln Caplan
Judge Learned Hand recalled that his Harvard Law School professors taught him the Spartan ethic which helped make him a legal giant. “In the universe of truth,” he said in 1958, during a public lecture, “they lived by the sword: they asked no quarter of absolutes, and they gave none.” The 86-year-old, A.B. 1893, A.M. ’94, LL.B. ’96, LL.D. 1939, exhorted law students in the audience: “Go ye and do likewise.” The “intellectual sword,” Bruce A. Kimball and Daniel R.
Indefensible Torture, Unfree Speech - The American Scholar
David Rowe/Alamy Stock Photo The Black Banners Declassified: How Torture Derailed the War on Terror after 9/11 by Ali Soufan with Daniel Freedman; Norton, 594 pp., $17.95 Did torture by the United States government of captured enemies yield valuable intelligence in the war on terror during the George W. Bush administration, as the government claimed? Or was it largely ineffective, endangering national security by failing to get the kind of information that lawful interrogation had been getting?
Constitutional scholar Noah Feldman profiled by Lincoln Caplan
Harvard Law School professor Noah Feldman’s constitutionalism is a branch of the humanities.
Billy Joe Wardlow, RIP - The American Scholar
Billy Joe Wardlow on death row in Texas after learning that the date for his execution had been set. Texas is the capital of capital punishment. Texas executed Billy Joe Wardlow on Wednesday evening at Huntsville State Penitentiary for the 1993 murder of an 82-year-old man. Wardlow was injected with a lethal dose of pentobarbital and pronounced dead at 6:52 p.m. He was the 570th person Texas has executed since the Supreme Court reinstituted the death penalty in 1976.
Lincoln Caplan, Author at The American Scholar
Lincoln Caplan , a senior research scholar at Yale Law School, teaches writing there and in Yale’s English Department. He is the author of six books about legal affairs and is a member of the Scholar's editorial board.
Translating the Constitution with Fidelity - Harvard Law Today
At the start of his recent book “Fidelity & Constraint: How the Supreme Court Has Read the American Constitution,” Harvard Law Professor Lawrence Lessig asks the reader to assume “the very best of the justices.” He writes: “Put your politics in a box and lock it away.
This Man Should Not Be Executed - The American Scholar
Billy Joe Wardlow on death row in Texas after learning that the date for his execution had been set. Texas is the capital of capital punishment. When he was 18, in 1993, Billy Joe Wardlow shot and killed an 82-year-old man named Carl Cole during a robbery in Cason, Texas, a rundown town of fewer than 200 people in the state’s rural northeast corner. Two years later, he was convicted of capital murder, making him eligible for the death penalty.
Lincoln Caplan reviews “When Should Law Forgive?” by Martha Minow
The first person President Donald Trump pardoned, in August 2017, was Sheriff Joe Arpaio. He was infamous for being brutal to undocumented immigrants and others in his shameful jails, and cheered on by neo-Nazis. The month before, a federal judge had found Arpaio guilty of criminal contempt, which carried a jail sentence of up to six months, for “flagrant disregard” of a court order.
What Reconstruction-Era Laws Can Teach Our Democracy
Why does the brief period known as Reconstruction, a century and a half ago, still influence the state of the Union so heavily?
What Reconstruction-Era Laws Can Teach Our Democracy (Published 2019)
Book Review|What Reconstruction-Era Laws Can Teach Our Democracy https://www.nytimes.com/2019/09/18/books/review/the-second-founding-eric-foner.html Nonfiction Send any friend a story As a subscriber, you have 10 gift articles to give each month. Anyone can read what you share. The celebratory scene in the House of Representatives after the passage of the 13th Amendment on Jan. 31, 1865.Credit...Library of Congress Sept.
America's Great Modern Justice
N THE SPRING of 1864, Oliver Wendell Holmes Jr. was fighting in the Civil War as a Union Army captain. He had enlisted three years earlier, soon after the war began, when he was 20 and in his last term at Harvard College, in the class of 1861. As an infantry officer in Virginia, he had received a near-fatal wound at Ball's Bluff in his first battle, where he was shot through the chest in a Union raid that backfired.
Opinion | Exploring the Meaning of ‘Constitutional Conservatism’
John Boehner, the next House speaker, expresses the message of constitutional conservatism in calling for every bill to identify the part of the Constitution it rests on. Sarah Palin used the phrase to campaign for limited government. Tea Party members call themselves constitutional conservatives. It is the new mantle in which Republican politicians are wrapping themselves. The challenge lies in understanding what, if anything, it actually means.
A Blueprint for a Safer, Saner Society - The American Scholar
Tiago Pinheiro/Flickr Prisoners of Politics: Breaking the Cycle of Mass Incarceration by Rachel Elise Barkow; Belknap Press, 304 pp., $35 A prison inmate can’t commit a crime on the outside, so the longer the sentence, the safer we are, right? That is a tenet of the law-and-order movement, which arose in reaction to violent protests in American cities in the 1960s and has dictated criminal-justice policy for 50 years.
Justice Holmes, presented by Stephen Budiansky and Lincoln Caplan
A new biography of Oliver Wendell Holmes Jr. illuminates the Supreme Court during the centennial of his most momentous dissent. In the spring of 1864, Oliver Wendell Holmes Jr. was fighting in the Civil War as a Union Army captain. He had enlisted three years earlier, soon after the war began, when he was 20 and in his last term at Harvard College, in the class of 1861.
Cass Sunstein on the constitution in the 21st century
Cass Sunstein ’75, J.D. ’78, has been regarded as one of the country’s most influential and adventurous legal scholars for a generation. His scholarly articles have been cited more often than those of any of his peers ever since he was a young professor. At 60, now Walmsley University Professor at Harvard Law School, he publishes significant books as often as many productive academics publish scholarly articles—three of them last year.
Stress Test for Free Speech - The American Scholar
Illustration by David Herbick The public sphere is the center of free speech in American democracy. Intangible yet indispensable, it’s the forum where speech, building on other speech, sometimes even by assailing it, demonstrates the rewards of open debate, which the First Amendment safeguards as the foundation of public opinion and the basis for self-government. The amendment has always functioned primarily to curb the power of government.
The Political Solicitor General
The following is excerpted from the September-October 2018 issue of Harvard Magazine. The most political case of the indelibly political Supreme Court term that ended in June was about the travel ban President Donald J. Trump imposed last September. It banned almost all travel to the United States from seven countries where more than 135 million people were covered by the ban. More than 90 percent of the citizens in five of the countries were Muslim.
Ginsburg's Roe v. Wade Blind Spot
During a “public conversation” at the University of Chicago Law School on Saturday, Justice Ruth Bader Ginsburg yet again expressed her well-known misgivings about Roe v. Wade—that the Supreme Court went “too far, too fast.” Her interlocutor at the event, Geoffrey Stone, reported her comments in The Huffington Post.
The Supreme Court and a politicized U.S. Solicitor General
The most political case of the indelibly political Supreme Court term that ended in June was about the travel ban President Donald J. Trump imposed last September. It banned almost all travel to the United States from seven countries where more than 135 million people were covered by the ban. More than 90 percent of the citizens in five of the countries were Muslim. As the state of Hawaii said in its brief about the case called Trump v.
Michael Klarman reinterprets the American founding
When the Revolutionary War ended in 1783, the American states went into a severe economic depression. The British government barred its people from buying American goods they could get elsewhere, and kept the country’s shipping companies from buying American-made ships. The gross national product fell precipitously.
A President, a Chief Justice and the Politics of Segregation
In “Eisenhower vs. Warren,” Simon answers three related questions: Why didn’t Eisenhower endorse the ruling in Brown? Could Eisenhower have made the South more receptive to desegregation of public schools if he had endorsed Brown? Why did Eisenhower become embittered about his chief justice, one of the court’s most influential? His biographer Stephen E.
Blocked: The Trump Twitter Case in Context
President Trump’s current 52.3 million followers on Twitter loom larger than the collective tens of millions who follow other federal, state, and local officials. (According to TwitterAudit this week, 16 percent of these followers are fake.) His dominance of digital news over the past two years, thanks largely to the pugnaciousness of his tweets, often leaves the impression that his use of social media is the most significant in American public life.
Our Towns
Heading west by small plane from the East Coast, writes James Fallows ’70, “you have a sense of going uphill, and into drier air. Mile by mile you leave behind the forested hollows of the Appalachian slopes, the farms and gently hilly pastures of southern Ohio and Indiana, the flatlands and sweeping corn and soybean fields of Illinois, which are broken at regular rectangular intervals by north-south and east-west roads laid out when the land was being distributed to nineteenth-century settlers.
Opinion | Bloody Sunday, Revisited
March 7, 1965, became known as Bloody Sunday in the annals of the civil rights struggle in America. That day, around 500 people set out to march the 54 miles from Selma, Ala., to the state capital in Montgomery in support of what would become the Voting Rights Act. The voting rights movement was transformed into a national cause when the marchers were stopped on the Edmund Pettus Bridge as they left Selma. A state trooper told them they were “an unlawful assembly” and ordered them to disperse.
From Harvard Magazine: The Justice Gap
Almost a century ago, a young Boston lawyer named Reginald Heber Smith published a landmark book called “Justice and the Poor.” It was about how people struggling economically were faring in the American legal system and why American lawyers needed to provide them with free legal aid. He wrote, “Nothing rankles more in the human heart than the feeling of injustice.” At the time, there were only 41 legal-aid organizations in the country, with a total of about 60 lawyers.
A Trial on Death Row
An extraordinary trial is scheduled to begin Wednesday in Connecticut, held at the prison housing the state’s death row. The petitioners are inmates sentenced to death for violent felonies, who are seeking to have their sentences reduced to life without parole on the ground that the death penalty in Connecticut is unconstitutional because it has been randomly imposed on a small group of people. In April, Connecticut became the 17th state to abolish the death penalty and the fifth in five years.
The Root Room - Harvard Law Today
The portrait of Elihu Root in the Harvard Law School Library depicts him as he looked in 1903, when he was 58 and secretary of war under President Theodore Roosevelt. Root wears a thick tie and full vest and morning coat. He is standing, with rimless glasses in his right hand and his left hand in a pants pocket.
Harvard Law 200th in divisive era
At the kick-off of Harvard Law School’s bicentennial celebration last week, Dean John F. Manning took the stage in Sanders Theatre and, in reverse order of their classes at the school, introduced a retired justice and four sitting justices of the Supreme Court: Neil M. Gorsuch, J.D. ’91; Elena Kagan, J.D. ’86; David H. Souter, retired, ’61, L.L.B. ’66, LL.D. 2010; Stephen G. Breyer, LL.B. ’64; and Anthony M. Kennedy, LL.B. ’61. He saved for last John G.
Should Facebook and Twitter Be Regulated Under the First Amendment?
Donald Trump’s Twitter account now has 40 million followers. It ranks 21st worldwide among 281.3 million or so accounts. It’s no secret that Trump is proud of his ability to use the account to communicate directly with his constituents. This summer, the president tweeted, “My use of social media is not Presidential—it’s MODERN DAY PRESIDENTIAL.” He meant that his tweets are official statements of the president of the United States.
The Legal Services Corporation tackles the “justice gap”
Almost a century ago, a young Boston lawyer named Reginald Heber Smith published a landmark book called Justice and the Poor. It was about how people struggling economically were faring in the American legal system and why American lawyers needed to provide them with free legal aid. He wrote, “Nothing rankles more in the human heart than the feeling of injustice.” At the time, there were only 41 legal-aid organizations in the country, with a total of about 60 lawyers.
The Junior Justice
This article appears in the Spring 2015 issue of The American Prospect magazine. Subscribe here. Celebrate our 25th Anniversary with us by clicking here for a free download of this special issue. On the last day of Elena Kagan’s first term as a justice, in 2011, the Supreme Court announced an important decision about government limits on money in politics.
Why Is Arkansas Rushing to Execute Seven People?
The state of Arkansas plans to execute seven death-row inmates between Monday and the end of the month. Since 1976, when the Supreme Court reinstated capital punishment, no state has executed so many people in such a short period of time.
How the First Amendment Applies to Trump’s Presidency
One of the strangest sentences in American law comes from Justice Lewis F. Powell, Jr. “Under the First Amendment,” he wrote, in 1974, “there is no such thing as a false idea.” That is not a decree that the world brims with truth. He meant that we rely on the marketplace of ideas, rather than on judges and juries, to sort out truth from falsehood—and to continually check our understanding of the truth. The Justice was restating the central tenet embraced in New York Times v.
Harvard Law dean Martha Minow
Dean Martha L. Minow has two desks in her Harvard Law School office. The one she sits at is a rosewood partners’ desk, wide enough for two people to work at face to face. It belonged to Joseph Story, A.B. 1798, LL.D. 1821, who in 1812, at 32, became the youngest person to take a seat as a Supreme Court justice and, in 34 years on the Court, one of the most influential legal figures of his era.
Justice Stephen Breyer is profiled by Lincoln Caplan
Justice Stephen G. Breyer, LL.B. ’64, sometimes says that his job and that of other members of the Supreme Court is to speak for the law. He does not mean that justices are Platonic Guardians, with ironclad power to impose their will on the nation despite being unelected. The job calls for deference to the elected branches of government, he emphasizes, and, even more, for caution and doubt.
Justice Stephen Breyer is profiled by Lincoln Caplan
Justice Stephen G. Breyer, LL.B. ’64, sometimes says that his job and that of other members of the Supreme Court is to speak for the law. He does not mean that justices are Platonic Guardians, with ironclad power to impose their will on the nation despite being unelected. The job calls for deference to the elected branches of government, he emphasizes, and, even more, for caution and doubt.
The Growing Gap Between the U.S. and the International Anti-Death-Penalty Consensus
Last week, the General Assembly of the United Nations adopted a resolution calling for a worldwide “moratorium on the use of the death penalty”—the sixth that the U.N. has approved in the past decade. Each one has gained the support of more of the organization’s members. The latest vote was a hundred and seventeen countries in favor to forty against.
Will the Supreme Court Stop Texas from Executing the Intellectually Disabled?
Since the Supreme Court reinstated the death penalty in the United States, in 1976, Texas has been responsible for more than a third of the country’s executions—five hundred and thirty-eight out of a thousand four hundred and forty. The most egregious reason is the state’s unique and grudging approach in cases where the defendant claims intellectual disability. In 2002, in Atkins v.
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