Lincoln Caplan

Lincoln Caplan is a senior research scholar at Yale Law School, and a former editorial writer about the Supreme Court for The New York Times. He is the author of The Tenth Justice: The Solicitor General and the Rule of Law, among other books.

Recent Articles

The Junior Justice

Elena Kagan is rewriting the role of a Supreme Court justice in American democracy.

This article appears in the Spring 2015 issue of The American Prospect magazine. Subscribe here.

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The Withered Writ

Habeas corpus, the age-old means for prisoners to challenge their detention, has never been more restricted than it is now.

AP Images/Jon Elswick
T he writ of habeas corpus, until not long ago, was a mysterious yet potent safeguard of liberty in American law. It worked like an incantation to break an evil spell. A prisoner petitions a court for a writ. “Habeas corpus” means “May you produce the body,” spoken from the point of view of a judge. He orders whoever is depriving the prisoner of his freedom to bring him to court—a warden confining a prisoner, the secretary of defense holding a detainee, or a magistrate who has denied bail to someone jailed but not convicted—and to justify the detention. The judge then decides whether the petitioner is being detained in breach of the Constitution or some other law. In 1963, Justice William Brennan Jr. wrote that “government must always be accountable to the judiciary for a man’s imprisonment.” The prisoner is “entitled to his immediate release,” the justice emphasized, if the government violates the law in putting him behind bars. Brennan was one of the most influential justices of the...