Garrett Epps

Garrett Epps is Professor of Law at the University of Baltimore. He covers the Supreme Court for theatlantic.comHis book, American Epic: Reading the US Constitution was published in August 2013 by Oxford University Press.

Recent Articles

The Court’s Scott Walker Moment

(AP Photo/Alex Brandon)
On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time. In Knox v. Service Employees International Union , the five—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—reached out to decide a question that was not argued or briefed; their opinion all but begs right-wing advocacy groups and public employers to use its emerging First-Amendment jurisprudence to take down public-employee unions and in essence find a Southern-style “right to work” law in the Constitution. In the days when right-wingers favored judicial restraint, this might have been called “judicial activism.” It is the Court’s Scott Walker moment. The case concerned the rules by which unions can assess “agency fees” payable by non-members who benefit from the unions’ collective bargaining efforts. Though public employees can’t be forced to join...

Issa's Contemptible Vote

(AP Photo/J. Scott Applewhite)
If contempt of Congress ( current polls show a whopping 17% approval) is a crime, we are a nation of criminals. That thought leapt to mind at the news that the House Oversight and Government Reform Committee, chaired by Representative Darrell Issa (R-CA.) has voted to ask the full House to hold Attorney General Eric Holder in contempt because of his refusal to turn over internal records relating to the administration’s response to the “Fast and Furious” gun-walking scandal in Arizona. In response to the prospect of that vote, Deputy Attorney General James M. Cole announced that President Obama had asserted executive privilege over the documents requested. The cable news channels are crackling with faux outrage on both sides. Republicans are shocked that the Attorney General and the White House are covering up what must surely be dreadful misdeeds. Democrats are outraged at this partisan attempt to besmirch the administration by baselessly suggesting misconduct and a high-level cover-...

Lethal Injection and the New Immigration Policy

(AP Photo/Jacquelyn Martin)
In March 197 7, two Tulsa horsewomen went to a church parking lot to meet an man who claimed to have Morgan horses to sell. Not long afterwards, their bodies were found near Sallisaw, Oklahoma, buried on land leased to Larry Leon Chaney. Chaney was convicted of murder and sentenced to death. Chaney’s case forms the legal backdrop to the announcement last week that the Department of Homeland Security would begin to “defer action” against undocumented immigrants under the age of 30 who have lived most of their lives in the United States and have served in the military or gotten an education. The decision has been widely reported as an “executive order” suspending parts of the Immigration and Naturalization Act. Representative Steve King (R-IA) vowed to file suit against Obama for “planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens." In fact, the policy change is not an executive order—it was a memorandum...

Prop. 8 Heads for the Show

(Flickr/OZinOH)
One of the most important functions of a dissenting opinion is to throw red meat to op-ed writers. Justice Antonin Scalia is a master of the form. Witness his dissent in Lawrence v. Texas, warning that, if same-sex sodomy laws are voided, government may soon force the unwilling to accept gays and lesbians “as boarders in their home.” Justice John Paul Stevens also perfected the zinger; he capped his dissent in Citizens United by saying, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” As a gesture of defiance, then, Judge Diarmuid O’Scannlain’s dissent from denial of rehearing in Perry v. Brown Monday is a bit of a damp squib. The meanest thing O’Scannlain can find to say is that Barack Obama has recently come out in support of gay marriage. That may be the measure of how strongly the tide is running, both in legal circles and in the larger culture, against those who want to...

Filibuster Reform Lies in the Voters

(Flickr / Cle0patra)
In 1906, journalist David Graham Phillips scored a best-seller with his book The Treason of the Senate . “The Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be,” Phillips wrote. There’s a good case that the “millionaire’s club” of 1906 was Audie Murphy compared to today’s Senate. The case against the Senate—and in particular against the misuse of the filibuster to paralyze the federal government—is brilliantly laid out in the Complaint filed last month by Common Cause in the federal District Court for the District of Columbia (It’s good: download it and read it now ). The complaint is a great service to public education. But the remedy Common Cause is seeking—judicial invalidation of part of Senate Rule XXII—is not only beyond the authority of the courts, but would, if granted, create a precedent worse than the disease it attacks. The Constitution gives each House the power to set its own rules, with no...

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