Ian Millhiser

Ian Millhiser is a legal research analyst with the Center for American Progress Action Fund. The views expressed in this article are his own.

Recent Articles

Not So Supreme?

Congress actually has a lot of mostly unused power to rein in the Roberts Court by clarifying the intent of the law.

It is a grim time for the rule of law in the United States. Our Constitution is controlled by the mixture of Republican partisans and conservative ideologues who dominate the Supreme Court. Even before Justice Anthony Kennedy’s retirement turned the Court into a place where liberalism reliably goes to die, the Roberts Court had undermined numerous labor, environmental, consumer, and voting rights laws. Yet, while many of these decisions are rooted in the Court’s interpretation of the Constitution—and therefore impervious to congressional review—the Court is just as likely to misread an act of Congress as it is to read the Constitution as coextensive with the Republican Party’s national platform. Congress has plenty of power to clarify the intent of the law, through ordinary legislation. In the past, it has used this power extensively. However, Congress has increasingly abdicated its responsibility to correct Supreme Court decisions that butcher federal...

The Judicial Bush Doctrine

(AP Photo/J. Scott Applewhite)
President Obama needs to be more like George W. Bush. Bush understood that a president’s longest-lasting legacy is often the judges who receive a lifetime appointment to the federal bench. He understood that another Republican will occupy the White House someday, and they will need a slate of potential nominees to the Supreme Court. And he understood that the judiciary can quietly implement an unpopular conservative agenda that would never survive contact with the elected branches of government. We are still living the legacy of Bush’s appointments. The Supreme Court’s five conservatives trashed consumers’ ability to stand up to rapacious corporations. They greenlighted laws intended primarily to suppress minority, low-income, and student voters . They thumbed their nose at women’s right to equal pay for equal work . And, while the Court’s Citizens United decision did not enable Mitt Romney’s rich friends to buy him four years in the White...


(AP/Pablo Martinez Monsivais)
Imagine a college whose orchestra was missing a bassoon player, or whose football team was down a running back. It would go without saying that this school could admit an applicant who plays the bassoon over a candidate who plays the French horn, even if that French horn player had slightly higher grades, or that its admissions officers could give preference to a high school’s star running back over its equally talented defensive lineman. The entire university community benefits from a full orchestra or a football team with a complete offensive lineup, and college admissions officers routinely take similar considerations into account when they think about how to build an incoming freshman class. Nine years ago, in its landmark Grutter v. Bollinger decision, the Supreme Court recognized that race is just like an orchestra. Contrary to the common view that affirmative action is a zero-sum game—in which each seat given to a minority must be taken from a white student—...

How to Kill the Filibuster with Only 51 Votes

Under the Supreme Court's precedents, just 51 senators will have a brief opportunity to reform or eliminate the filibuster next January.

Let's face it, the GOP's "Party of No" strategy is working. Democrats lost a once-unlosable Senate seat to a no-name Republican last Tuesday. Progressive voters are depressed by the many pounds of flesh conservatives extracted from cherished priorities such as health-care reform. Right-wing voters are jubilant about the prospect of a government shutdown. With conservatives salivating, and progressives seriously questioning whether American government is too crippled to solve major problems, it's difficult to imagine that Democrats won't take additional losses next November. Even if they don't, however, a minority bent on total obstructionism now enjoys the power to veto nearly any bill or nominee. With the exception of the annual budget, literally nothing is likely to pass the Senate for the next three years. It doesn't have to be this way, however. A long line of Supreme Court decisions forbid former legislators from tying the hands of their successors. Thus, although current...

Rally 'Round the "True Constitution"

Convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations? Conservatives have a movement for you.

Rep. Michele Bachmann, R-Minn., speaks at the Republican National Convention in St. Paul, Minn., Tuesday, Sept. 2, 2008. (AP Photo/Ron Edmonds)
Almost a year after she called for an investigation to discover which members of Congress are "anti-American," Minnesota's nuttiest lawmaker is back. In a recent appearance with Fox's Sean Hannity, Republican Rep. Michele Bachmann accused her colleagues of "forg[etting] what the Constitution says" because they are poised to pass comprehensive health-care reform. Not to be outdone, Sen. Jim DeMint of South Carolina told right-wing activists on a conference call last Thursday that health reform violates the 10th Amendment; he also called on state legislators and governors to "champion individual freedom" by resisting the bill. Two Florida lawmakers beat DeMint to the punch, having already introduced legislation to block health reform from taking effect in their state. These efforts are all part of a movement whose members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives. Indeed, while "birther" conspiracy...