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

Arizona Asks the Court Not to Trust the Feds

(Krista Kennell/Sipa Press)
This term’s last oral argument ends next week with yet another blockbuster case— Arizona v. United States , the challenge to Arizona’s harshly anti-immigrant S.B. 1070 . This case poses vitally important questions about individual rights, racial profiling, and the future of individual equality in the United States. But don’t expect to hear them argued openly next week. Instead, arguments will be couched almost entirely in the language of “federal preemption,” a subject so abstruse and technical that it induces coma in even the hardiest law-review editors. But lurking underneath the talk of “conflict preemption” and cigarette-labeling statutes are issues of human equality and the emerging constitutional question of our time: When, if ever, are Congress and the executive branch owed deference by the states and by their special protector, the Roberts Court? The issue is whether four sections of S.B. 1070 usurp the federal government’s role in regulating immigration matters—a power the...

Don't Blame "Corporate Personhood"

(Flickr/watchingfrogsboll)
A merican politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission , which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill. Citizens United is a bad decision. This obvious fact may even be dawning on the Court’s conservative majority, which is taking a surprisingly leisurely look at American Tradition Partnership, Inc. v. Bullock, in which the Montana Supreme Court directly challenged Citizens United , in essence telling the...

Judicial Review Doesn't Mean What You Think It Means

(AP Photo / J. David Ake)
Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead. Judge Jerry E. Smith Circuit Judge Fifth Circuit Court of Appeals Dear Judge Smith, Lawyers tell an anecdote about a psychiatrist who finds himself in heaven. St. Peter says, “We’re so glad you’re here, we have a psychiatric emergency!” The psychiatrist is puzzled. “How can that be?” he asks. “Surely the souls of the blessed are free from all pain and torment. Why would they need a psychiatrist?” “It’s not the blessed,” says the saint. “It’s God. He has terrible delusions of grandeur—he thinks he’s a federal judge!” This story came to mind when I learned that on...

The Nine Circles of the ACA

(Flickr/diacritical)
Nobody was doing well by the time oral arguments in the Health Care cases ended at 2:30 p.m. Wednesday. Some Justices were sniping back and forth. The lawyers were showing the strain. And Justice Antonin Scalia was telling jokes. “[Y]ou know—the old Jack Benny thing, Your Money or Your Life, and, you know, he says ‘I'm thinking, I'm thinking,’” Scalia said from the bench. “It's—it's funny, because it's no choice. ... But ‘your life or your wife’s,’ I could refuse that.” “He’s not going home tonight,” Justice Sonia Sotomayor threw in as the crowd laughed. “That’s enough frivolity for a while,” Chief Justice John Roberts (nobody’s straight man) said sternly. I think he, like me, was afraid we would never get home that night, as if the Supreme Court had sailed into some forensic dimension where the clock hands were frozen in ice. If you want to know how strange things got, consider that a Justice of the United States Supreme Court suggested that the Court should invalidate the entire 2,...

Verrilli's Courage Under Fire

(AP Photo/Evan Vucci)
On December 10, 1935, during oral argument before a hostile Supreme Court, then-Solicitor General Stanley Reed collapsed at the lectern. (He recovered and went on to serve on the Court himself.) Let history show that Solicitor General Donald Verrilli did not stagger yesterday under a Four Horseman-style onslaught of conservative questioning that seemed to leave the government without a path to victory in the “minimum coverage” phase of the Health Care Cases. Yesterday's argument concerned the centerpiece of the Affordable Care Act (ACA): the minimum-coverage, or individual mandate, provision. Under this rule, taxpayers who are not covered by employer or government health insurance will, after 2014, be required either to purchase an individual policy or pay a penalty on their tax returns. The requirement is designed to widen the insurance pool so that two other parts of the Act—one requiring companies not to discriminate on the basis of health risk, and the other forbidding them from...

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