David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. His new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, was published in April.
 (July 2016)

The Affirmative Action Surprise

United States Supreme Court Justice Anthony Kennedy, March 23, 2015

Justice Kennedy’s decision to uphold University of Texas’s affirmative action reflects a more grounded view of society as it is, a willingness to adjust the purely formal elements of abstract doctrine to a world in which race continues to matter. The decision also means that a solid majority of the Court’s justices, even without the justice who will eventually fill Scalia’s seat, understand the importance of considering race in admitting students to our nation’s colleges.

The Terror of Our Guns

The long tradition of gun regulations almost certainly means that the Supreme Court will not construe the Second Amendment to invalidate most gun laws on the books today, but that simply leaves the matter to the political process, where the NRA is plainly winning. If history is any guide, it will succeed in thwarting any new gun control initiative prompted by the Orlando massacre.

Michael Ratner’s Army

Michael Ratner, President of the Center for Constitutional Rights, with a report on conditions at the Guantánamo Bay, New York, August 4, 2004

Though it remains open, Guantánamo is, thankfully, a shadow of its former self. The real credit lies with no president, but with the hundreds of lawyers and thousands of activists who have stepped forward to advocate for Guantánamo inmates. And many of these lawyers and activists in turn owe much of their inspiration to one man: the human rights attorney Michael Ratner, who died on May 11.

The Cops and Race and Gangs—and Murder

William Bratton, then chief of the LAPD, and Raymond Kelly, then commissioner of the NYPD, at a public hearing in New York City, September 2008
Down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid…. He is the hero; he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, …

Killing from the Conference Room

Helen Mirren as Colonel Katherine Powell in Gavin Hood's Eye in the Sky, 2016

Gavin Hood’s Eye in the Sky, a remarkably timely and important new film about a fictional drone strike against al-Shabab, raises fundamental questions about when, if ever, such attacks are justified.

Obama’s Most Dangerous Legacy

The remains of a car containing three suspected al-Qaeda militants, after a drone strike, Yemen, January 26, 2015

AFP/Getty Images

President Barack Obama’s plan for closing Guantánamo, delivered to Congress on Tuesday, reaffirms his admirable desire to end before he leaves office one of the most problematic legacies of the US response to September 11. But he has yet to adequately address his own more lasting legacy in the “war on terror”: the secret killing of suspected terrorists with armed drones.

Scalia: The Constitution in Politics

Justice Antonin Scalia testifying before the Senate Judiciary Committee about the role of judges under the Constitution, Washington, D.C., October 5, 2011

Justice Antonin Scalia’s vision of a Constitution that was somehow immune from the contending forces that shape—and indeed, constitute—us as an evolving nation was an illusion. And it has never been more dramatically refuted than by the political battles that have already broken out in the days since his death.

The Trouble at Yale

A demonstration at Yale University against what many students see as racial insensitivity on campus, New Haven, Connecticut, November 9, 2015
After weeks of student protest about racial inequality on campus, Yale President Peter Salovey announced on November 17 that the university would be making significant changes to address “longstanding inequities.” The announcement came just five days after a group of Yale students delivered a list of demands to Salovey, and …

Race Matters at the Supreme Court

Supporters of affirmative action, during the first Supreme Court hearing of the University of Texas case, in Washington, D.C., October 10, 2012

The evidence that race still matters in twenty-first century America is overwhelming. At the Supreme Court, however, there is growing ambivalence about whether race may even be taken into account to redress these problems. That question was front and center on Wednesday, when the Court once again considered the constitutionality of affirmative action.

Yale: The Power of Speech

A college notice board at Yale University in New Haven, Connecticut, November 12, 2015

Most of what has transpired at Yale and other colleges reflects the best traditions of the First Amendment: students of color and others have been organizing politically and speaking out in packed rallies. They are using the First Amendment to stand up, communicate their experiences, and demand equal justice. That’s exactly how the First Amendment should work.

Free Speech, Big Money, Bad Elections

David H. Koch attending the opening of the plaza named for him at the Metropolitan Museum of Art, New York City, September 2014
As Burt Neuborne puts it in his important and timely book on the First Amendment, the super-rich, the wealthiest one to two percent, “set the national political agenda, select the candidates, bankroll the campaigns…, and enjoy privileged postelection access to government officials.” The rest of us are left to “navigate among the choices made available” by the super-rich.

Solitary Confinement: The Beginning of the End?

Hell’s Bells, by Hector Lopez, who was in solitary confinement at California's Pelican Bay State Prison

Since the rapid expansion of high-security prisons in the 1980s, solitary confinement has become pervasive across the United States in both state and federal prisons, involving, according to recent estimates, more than 75,000 inmates at any given time. It is imposed by prison officials for security and disciplinary reasons, but often with little oversight and on the basis of minor infractions. So far, many of the reforms voluntarily adopted by prison officials involve cutting back on, not eliminating, solitary confinement. A recent settlement in California might provide a way forward.

The New America: Little Privacy, Big Terror

A mural denouncing US drone strikes, Sanaa, Yemen, November 2014
On June 2, 2015, after a Senate cliffhanger that featured a lengthy filibuster by Rand Paul and a resounding defeat for Senate Majority Leader Mitch McConnell, Congress enacted the USA Freedom Act. The act, whose name echoes the USA Patriot Act, does not exactly mark the restoration of freedom. But …

Has the Court Turned Left?

Chief Justice John Roberts and Justice Anthony Kennedy at President Obama's State of the Union address, Washington, D.C., February 12, 2013

In the Supreme Court term that ended Monday, the liberal justices won twice as many closely divided cases as they lost. Does this amount to a shift to the left by the Roberts Court? Part of the reason this year’s results seem so remarkable is that the Court’s conservatism has often been exaggerated. But it is also possible that it has proved less conservative than many feared because the country is less conservative.

Reining in the NSA

Senate Majority Leader Mitch McConnell, Washington, DC, June 1, 2015

If Edward Snowden had not revealed the NSA’s sweeping surveillance of Americans, Congress would have simply renewed Section 215, the USA Patriot Act provision that the NSA relied on—as it had done on seven previous occasions since 2001. Instead the Senate has passed the USA Freedom Act, which will bring an end to the National Security Agency’s bulk collection of Americans’ phone records.

Gay Marriage: Unthinkable or Inevitable?

Pietro Perugino: Prudence and Justice (detail), Collegio del Cambio, Perugia, Italy, 1497

Twenty-five years ago, same-sex marriage was for all practical purposes unthinkable. Today, it seems close to inevitable. This remarkable shift highlights the particular difficulty of the marriage equality case that came before the Supreme Court on Tuesday—but also points to the right result. The Court has only two choices: to vindicate the demands of equality and liberty, or to validate discrimination.

The Angry New Frontier: Gay Rights vs. Religious Liberty

Beth Moore and Abby Hill signing their marriage license at the Washington County Courthouse, Fayetteville, Arkansas, May 2014
At the end of June, the Supreme Court will likely declare that the Constitution requires states to recognize same-sex marriages on the same terms that they recognize marriages between a man and a woman. If it does, the decision will mark a radical transformation in both constitutional law and public …

Targeted Killing: The New Questions

A courtroom sketch of Mohanad Mahmoud Al Farekh at federal court in New York, April 2, 2015

To kill or capture? That is the chilling question that US officials—and even members of Congress—reportedly ask behind closed doors these days. Revelations in a Brooklyn terrorism case show that parts of our government wanted to kill, without a trial, a citizen who, even if convicted, will now face a maximum of fifteen years in prison.

Torture: No One Said No

Former CIA director George Tenet, left, and former Vice President Dick Cheney

Who bears ultimate responsibility for the US torture program? In a largely overlooked trove of newly declassified documents, the CIA leadership comes across as so skittish about the program that had anyone had the temerity to say no, they almost certainly would have halted it.

Can They Crush Obamacare?

A Tea Party protester on the West Lawn of the Capitol, Washington D.C., September 2013
Never underestimate the persistence of opponents of President Barack Obama’s signature legislative achievement, the Patient Protection and Affordable Care Act. Since the law was enacted in 2010, Republicans have introduced countless bills to repeal it, but have never had the votes to make their efforts anything but symbolic. Now they are back before the Supreme Court again, advancing another challenge that, if successful, could spell the end of the ACA.

The Supreme Court’s Billion-Dollar Mistake

The most harmful effect of the Supreme Court’s decision in Citizens United may have been to free up super PACs from any meaningful constraints on spending money in politics. Over the five years since Citizens United and a related decision by a federal appeals court, super PACs have spent more than one billion dollars on federal election campaigns. About 60 percent of that billion dollars has come from just 195 people.

Must Counterterrorism Cancel Democracy?

Edward Snowden, shown on a livestream from Moscow, receiving the Right Livelihood Honorary Award for ‘his courage and skill in revealing the unprecedented extent of state surveillance violating basic democratic processes and human rights,’ Swedish Parliament, Stockholm, December 2014
How did a constitutional law professor, vocal critic of President George W. Bush’s war on terror, and Nobel Peace Prize winner come to oversee an unprecedented campaign of secret targeted killing with drones, as well as the most extensive dragnet surveillance that the world has ever seen?

The Disgrace of Our Criminal Justice

Bryan Stevenson with his colleagues at the Equal Justice Initiative in Montgomery, Alabama, including senior attorney ­Charlotte Morrison (center row, second from left), as well as with two of his clients: Jesse Morrison (top left), who won a reduced sentence after serving nineteen years on death row for a murder conviction in which the prosecution had eliminated all but one of the black jury candidates; and Jerald Sanders (bottom left), who won his release after serving twelve years of a sentence of life without parole for the nonviolent crime of stealing a bicycle. Also pictured is a tower at Holman State Prison, Alabama’s main death row.
Bryan Stevenson’s Just Mercy demonstrates, as powerfully as any book on criminal justice that I’ve ever read, the extent to which brutality, unfairness, and racial bias continue to infect criminal law in the United States. But at the same time that Stevenson tells an utterly damning story of deep-seated and widespread injustice, he also recounts instances of human compassion, understanding, mercy, and justice that offer hope.

Denouncing Surveillance, on Camera

Edward Snowden in a video conference with John Perry Barlow, co-founder of the Electronic Frontier Foundation, New York, June 5, 2014

In their extraordinary revelations about what the NSA and its secret programs have been doing, Edward Snowden’s leaks have shown the precariousness of privacy in the digital age. But Laura Poitras’s documentary Citizenfour also demonstrates, unwittingly, that we are part of the problem. We have chosen to broadcast our lives.

A Surprise from the Court on Gay Marriage

To the surprise of virtually everyone, on Monday morning the Supreme Court denied review in all of the marriage equality cases pending before it. The decision not to intervene is a huge win for marriage equality, and a prudent if unusual act of judicial statesmanship.

Obama’s Unauthorized War

President Barack Obama, June 4, 2014

In his address to the nation, Obama made the case for a large-scale, long-term military offensive to “destroy” a group that now holds significant territory in two countries. Such a lengthy military intervention amounts to war, the very sort of engagement that the framers felt should be undertaken only if approved by the legislative branch.