United States v. Carolene Products (1938) established a dichotomy between enumerated and unenumerated rights. Under Footnote Four, laws that infringed provisions of the Bill of Rights would be scrutinized closely. By contrast, all other sorts of rights, including liberties protected by the Due Process Clause, would be afforded only rational basis scrutiny. Williamson v. Lee Optical (1955) made that rational basis scrutiny even more deferential. That test became the New Deal settlement on the Due Process Clause. Until […]

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Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration, by Rachel Elise Barkow, Harvard University Press, 320 pages, $35 “The United States is now a world leader when it comes to incarceration,” Supreme Court Justice Neil Gorsuch and co-author Janie Nitze noted last year in their book Over Ruled. They added that “our incarceration rate is not only eight times as high as the median rate in Western European democracies” but also higher than the […]

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⁠”Pensar e não agir é como sementes sem água: nada nasce e nada cresce. Agir sem planejar é como água sem sementes: todo esforço encharca e depois evapora.”

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Warning that the executive branch’s claims should shock “the intuitive sense of liberty” of Americans, a panel of judges for the U.S. Court of Appeals for the 4th Circuit today unanimously rejected the Trump administration’s attempts to stay a lower court order to release Kilmar Abrego Garcia from a prison camp in El Salvador. The U.S. Supreme Court ordered the Trump administration last week to facilitate the release of Abrego Garcia, a Salvadoran man that three government officials […]

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