Ronald Dworkin (1931–2013) was Professor of Philosophy and Frank Henry Sommer Professor of Law at NYU. His books include Is Democracy Possible Here?, Justice in Robes, Freedom’s Law, and Justice for Hedgehogs. He was the 2007 winner of the Ludvig Holberg International Memorial Prize for “his pioneering scholarly work” of “worldwide impact” and he was recently awarded the Balzan Prize for his “fundamental contributions to Jurisprudence.”


Law from the Inside Out

Ronald Dworkin, 2005
Law is at the cutting edge of many different disciplines and I am going to try to illustrate this point by talking about my own career, not because I believe that everything I think is right, but because my career has illustrated a marked trajectory from the very concrete to …

Religion Without God

The familiar stark divide between people of religion and without religion is too crude. Many millions of people who count themselves atheists have convictions and experiences very like and just as profound as those that believers count as religious. They say that though they do not believe in a “personal” god, they nevertheless believe in a “force” in the universe “greater than we are.” They feel an inescapable responsibility to live their lives well, with due respect for the lives of others; they take pride in a life they think well lived and suffer sometimes inconsolable regret at a life they think, in retrospect, wasted.

The Case Against Color-Blind Admissions

Abigail Fisher, the plaintiff in Fisher v. University of Texas, outside the Supreme Court with Edward Blum, who runs a project that seeks to end affirmative action, October 10, 2012
The Supreme Court has now heard oral arguments in a case—Fisher v. University of Texas—in which it is likely to overrule or eviscerate its own 2003 decision in Grutter v. Bollinger allowing limited “affirmative action” plans in public institutions of higher education. These are admissions policies through which universities seek …

A Bigger Victory Than We Knew

President Obama with Supreme Court Justices Anthony Kennedy, Samuel Alito, and John Roberts before addressing a joint session of Congress, Washington, D.C., February 2009
Above all, we should celebrate. The Supreme Court, by a 5–4 vote, has left President Obama’s Affordable Care Act almost entirely intact. So the United States has finally satisfied a fundamental requirement of political decency that every other mature democracy has met long ago, and that a string of Democratic presidents, from FDR to Bill Clinton, tried and failed to secure for us. We finally have a scheme of national health care provision designed to protect every citizen who wants to be protected.

Why Did Roberts Change His Mind?

US Supreme Court Chief Justice John Roberts, July 13, 2006

There is persuasive internal evidence in the various opinions the justices filed that he intended to vote with the other conservatives to strike the Act down and changed his mind only at the very last minute. Commentators on all sides have speculated furiously about why he did so. One popular opinion among conservative talk-show hosts suggests that Roberts has been a closet liberal all along; another that he has suffered a mental decline. Almost no one seems willing to accept Roberts’ own explanation: that unelected judges should be extremely reluctant to overrule an elected legislature’s decision. His own judicial history thoroughly contradicts that explanation. In case after case he has voted, over the dissenting votes of the liberal justices, to overrule state or congressional legislation, as well as past settled Supreme Court precedents, to reach a result the right-wing in American politics favored.

Why the Mandate Is Constitutional: The Real Argument

President Barack Obama greeting Supreme Court Justices Anthony Kennedy and Ruth Bader Ginsburg before his State of the Union address, Washington, D.C., January 24, 2012
The plaintiffs have asked the Court to declare the Affordable Care Act unconstitutional. The political and social stakes are enormous. But the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act.

Why the Health Care Challenge Is Wrong

The US Supreme Court Building

The Supreme Court’s hearings in the health care case, Department of Health and Human Services v. Florida, over a nearly unprecedented three days of oral argument, generated all the attention, passion, theater, and constant media and editorial coverage of a national election or a Super Bowl. The legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the Affordable Health Care Act. But the questions of the ultra-conservative justices in the oral argument have now convinced most commentators that on the contrary, in spite of text, precedent, and principle, the Court will declare the Act unconstitutional in June, by a 5-4 vote.

Can Obama Extend the Debt Ceiling on His Own?

President Barack Obama speaking with House Speaker John Boehner in the Cabinet Room at the White House, July 23, 2011

As the debt ceiling fiasco continues unresolved and increasingly dangerous, with no agreement among the House, the Senate and the White House yet in sight, an obscure and forgotten constitutional clause has suddenly come under scrutiny. The Fourteenth Amendment, adopted after the Civil War, provides that “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Does that clause mean that it is unconstitutional for Congress to refuse to raise the debt ceiling – the amount the nation is legally permitted to borrow – in our present circumstances, and that the President is therefore constitutionally permitted to borrow money on his own authority?

How FDR Did It

We now have a President we can admire and respect. But he seems unaware that his opponents are not patriots anxious to help govern through a decent consensus but fanatics who would destroy the country if that would lead to his defeat. We think he should understand that this is a time for confrontation not compromise. He should therefore remember the words of another president running for reelection in the middle of an even graver economic catastrophe, words that seem eerily relevant now.

The Court’s Embarrassingly Bad Decisions

Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg leaving the Supreme Court after a ceremony honoring the late Chief Justice William Rehnquist, Washington, D.C., September 2005
Five conservative justices now dominate our Supreme Court—Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito. They continue to revise our historical constitution and two new cases show that the arguments they offer continue to be embarrassingly bad. One concerns contributions to religious schools; …

More Bad Arguments: The Roberts Court & Money in Politics

Lithograph by Honoré Daumier

Consider the Supreme Court’s newest electoral reform case. In their earlier Citizens United decision the five justices in the majority—Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito—guaranteed corporations a constitutional right to use their own capital for political advertising. They said that the point of the First Amendment is to provide the electorate with as much political speech as possible. They did not deny that the political process would be fairer if candidates and political organizations were more equal in their campaign resources. But the First Amendment forbids infringing free speech for the sake of equality, they said, and so “leveling the playing field” is no justification for stopping corporations or anyone else from spending as much on political advertising as they wish. Some commentators said that the Citizens United decision would make little practical difference: though it was wrong in principle, they thought, it would not actually do much harm. They were mistaken: the decision’s impact has already proved dramatic.

Bad Arguments: The Roberts Court & Religious Schools

Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg leaving the Supreme Court after a ceremony honoring the late Chief Justice William Rehnquist, Washington, D.C., September 2005

Five conservative justices now dominate our Supreme Court—Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, and Samuel Alito. They continue to revise our historical constitution and two new cases show that the arguments they offer continue to be embarrassingly bad. One concerns contributions to religious schools; the other, public financing of elections. I will describe those cases and defend that criticism, but it might be well to notice, first, why the justices have had to resort to arguments of such poor quality.

What Is a Good Life?

Georges Seurat: Study for ‘A Sunday on La Grande Jatte,’ 1884
We cannot explain the importance of a good life except by noticing how creating a good life contributes to living well. We are self-conscious animals who have drives, instincts, tastes, and preferences. There is no mystery why we should want to satisfy those drives and serve those tastes. But it can seem mysterious why we should want a life that is good in a more critical sense: a life we can take pride in having lived when the drives are slaked or even if they are not. We can explain this ambition only when we recognize that we have a responsibility to live well and believe that living well means creating a life that is not simply pleasurable but good in that critical way.

The Historic Election: Four Views

Ronald Dworkin The results of Tuesday’s election are savagely depressing, wholly expected, yet deeply puzzling. Why do so many Americans insist on voting against their own best interests? Why do they shout hatred for a health care plan that gives them better protection against calamity than they have ever had? …

Americans Against Themselves

A sign put up by the Solano Tea Party Patriots, Solano County, CA

The results of Tuesday’s election are savagely depressing, wholly expected, yet deeply puzzling. Why do so many Americans insist on voting against their own best interests? Why do they shout hatred for a health care plan that gives them better protection against calamity than they have ever had? Or stimulus spending that has prevented a bad economic climate from being much worse for them? Or tax proposals that lower their own taxes by raising taxes on people much richer than they will ever be? Why do they vote in such numbers for the party favored by the bankers and traders who brought on the economic catastrophe?

The Temptation of Elena Kagan

US Supreme Court nominee Elena Kagan takes her seat before answering questions before the Senate Judiciary Committee for her confirmation hearing on Capitol Hill in Washington on June 30, 2010
The Kagan hearings have been almost universally denounced as pointless and calls for reform have increased. It is important to review the hearings in some detail to consider how far that charge is justified and how confirmation hearings might be improved.

The Decision That Threatens Democracy

Supreme Court Justices John Roberts, Anthony Kennedy—who wrote the Court’s decision in Citizens United v. FEC—and Clarence Thomas at President Obama’s first address to a joint session of Congress, February 24, 2009
No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010. The five conservative justices, on their own initiative, at the request of no party to the suit, declared …

The “Devastating” Decision

Supreme Court Justice Anthony Kennedy and Chief Justice John Roberts with President Barack Obama just before he addressed a joint session of Congress, February 24, 2009
Against the opposition of their four colleagues, five right-wing Supreme Court justices have now guaranteed that big corporations can spend unlimited funds on political advertising in any political election. In an opinion written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, …

Justice Sotomayor: The Unjust Hearings

It may be too late to save any future Senate hearings on Supreme Court nominations from farce, as the Judge Sonia Sotomayor hearings quickly became. She is an excellently qualified nominee and will make a careful, thorough justice.[^1] She demonstrated her clarity and technical skill in correcting several senators’ misunderstandings …

Looking for Cass Sunstein

Professor Cass Sunstein of the Harvard Law School, who is among the most prominent and influential American academic lawyers, appears on many lists of potential nominees to the Supreme Court and it is therefore opportune that he has published a new book exploring constitutional philosophy. He is a breathtakingly prolific …

Why It Was a Great Victory

The Supreme Court decision Boumediene v. Bush undermines the assumption, widespread among lawyers and scholars for decades, that the Constitution as a whole offers substantially less protection against American tyranny to foreigners than it does to America’s own citizens.

The Supreme Court Phalanx

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing …

The Court & Abortion: Worse Than You Think

When President Bush nominated Judge Samuel Alito to succeed Justice Sandra Day O’Connor on the Supreme Court, it was widely expected that the first clear demonstration of an important shift in the Court’s ideology would be its reversal of one of its recent abortion decisions. In 2000, O’Connor provided the …