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David Cole

David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. His latest book is Engines of Liberty: How Citizen Movements Succeed.
 (April 2020)

Follow David Cole on Twitter: @DavidColeACLU.

IN THE REVIEW

Trump Is Not Exempt

During the 2016 presidential campaign, Donald Trump boasted, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” He now argues that as president he couldn’t even be investigated for doing so. In three cases that have reached the Supreme Court, Trump is seeking to block subpoenas issued in connection with investigations of his conduct as a private citizen.

‘Sex’ at the Supreme Court

Tuesday Smillie: S.T.A.R., 2012. STAR was a trans-justice organization founded in 1970 in New York after the Stonewall riots. Cofounder Sylvia Rivera (center), Bebe Scarpinato (right), and other activists advocated for legal protections for trans, gender nonconforming, and gay people, and developed mutual aid networks to provide food and shelter.

Is firing someone for being gay or transgender illegal under Title VII of the Civil Rights Act of 1964, which bars employers from discriminating “because of…race, color, religion, sex, or national origin”? The Supreme Court will take up that question in October. At issue is whether lesbian, gay, bisexual, and transgender people have a right to be treated equally in the workplace, since discriminating against them is inextricably “because of sex.” The question has divided lower courts, often along unpredictable lines.

Keeping Up Appearances

The Company They Keep: How Partisan Divisions Came to the Supreme Court

by Neal Devins and Lawrence Baum

The Chief: The Life and Turbulent Times of Chief Justice John Roberts

by Joan Biskupic
The Supreme Court today has five conservative justices and four liberal ones. Since 2010, for the first time in US history, all the conservatives have been appointed by Republicans, and all the liberals have been appointed by Democrats. If the justices voted like members of Congress, almost all significant cases would be decided 5–4, with the conservatives prevailing. But the justices are not members of Congress, and that matters. It matters even more after the deeply partisan fight over Justice Kavanaugh’s nomination. A striking number of the recently completed term’s cases were decided by majorities that included at least one conservative justice joining the liberals, or at least one liberal justice joining the conservatives—almost as if the Court were seeking to reassure us that it is nonpartisan.

An Indictment in All But Name

Report on the Investigation into Russian Interference in the 2016 Presidential Election

by Robert S. Mueller III
Special Counsel Robert Mueller’s long-awaited report lays out in meticulous detail both a blatantly illegal effort by Russia to throw the 2016 presidential election to Donald Trump and repeated efforts by President Trump to end, limit, or impede Mueller’s investigation of Russian interference. Trump’s efforts included firing or attempting to fire those overseeing the investigation, directing subordinates to lie on his behalf, cajoling witnesses not to cooperate, and doctoring a public statement about a Trump Tower meeting between his son and closest advisers and a Russian lawyer offering compromising information on Hillary Clinton. Attorney General William Barr, who has shown himself to be exactly the kind of presidential protector Trump wanted Jeff Sessions to be, did his best to whitewash the report.

NYR DAILY

The US Constitution Brought to Life

Heidi Schreck in Schreck's What the Constitution Means to Me, 2019

As a fifteen year old, Heidi Schreck’s favorite amendment was the Ninth—not at the top of most people’s lists; indeed, not even on most people’s lists. The Ninth is a kind of catch-all, providing that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Schreck likes it because it suggests we have rights not expressly set forth in the document—such as the rights to brush your teeth, or to have an imaginary friend, she points out. But for the grown-up Schreck, the Ninth Amendment signals possibility, the hope and expectation that rights not explicitly enumerated in the founding document might nevertheless be recognized as the nation and constitutional law evolve.

Ten Questions Brett Kavanaugh Must Answer

Supreme Court nominee Brett Kavanaugh listening as President Donald Trump announced his nomination at the White House, Washington, D.C., July 9, 2018

Supreme Court nominees all too often avoid answering questions about their views by simply describing existing Court doctrine and then insisting they cannot say how they would vote on any particular matter that might come before them. But in speeches and writings while a judge, Brett Kavanaugh has repeatedly expressed his own views on many matters that might come before him, including whether presidents should be subject to civil and criminal lawsuits; if he could express his views there, he should not be permitted to avoid expressing them on other topics in the Senate confirmation hearing. Here, then, are ten questions I suggest the senators ask Kavanaugh.

The Supreme Court Looks Away

President Donald Trump listening as Supreme Court Justice Anthony Kennedy spoke in the Rose Garden of the White House, Washington, D.C., April 10, 2017

Chief Justice John Roberts proclaimed that “Korematsu has nothing to do with this case.” He went on to write that Korematsu v. United States, the 1944 decision that backed the internment of Japanese citizens and immigrants based on their race, “was gravely wrong the day it was decided, has been overruled in the court of history and—to be clear—has no place in law under the Constitution.” Strong words. But actions speak louder. Even as he acknowledged the court’s error in Korematsu, Roberts repeated it, virtually verbatim, in Trump v. Hawaii.

The Supreme Court’s First Great Trump Test: the Muslim Ban

A protest against Trump’s second Muslim travel ban order in Washington, D.C., March 7, 2017

The Supreme Court has sometimes deferred to the political branches on matters of immigration and national security policy, but never on religious bias. And the constitutional case against the travel ban is overwhelmingly strong. The Establishment Clause of the First Amendment not only prohibits the government from making any law “respecting an establishment of religion,” it also forbids the government from singling out for disfavor any particular religion. Yet that is precisely what Trump’s travel ban does.