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 ACA v. the Supreme Court

(Flickr/Mark Fischer)
This is the first of a series of posts looking at the arguments in the upcoming health-care case. Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case. So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear— Cheese it, it’s the Broccoli cops! —and Justices are members of the public. The two party briefs by foes of the ACA play heavily on that fear. Be afraid, they warn. Be very afraid. A corrupt, power-hungry Congress wants control of your evening cocktail, your dinner plate, and the car you drive. The government’s tone...

Faux Federalism

The central fact of American federalism, as I’ve written before , is hypocrisy. Witness H.R. 1433 , the Private Property Rights Protection Act of 2012, passed on February 28 by the House of Representatives. The Act targets Kelo v. City of New London , the 2005 decision in which the Court announced that the Fifth Amendment does not forbid state governments from using their power of eminent domain to acquire—at fair market prices—private property for use in economic development projects. Eminent domain is a power limited by the Constitution to taking property “for public use” and with “just compensation.” But some states interpreted “public use” to mean incorporation in public-private developments like the mixed use development at stake in Kelo —a corporate research facility, shops and restaurants, a hotel, and a park. The right hates Kelo a lot worse than it hates the federal government. Not long ago, in fact, Justice Antonin...

The Emerging Sotomayor-Muppet Axis of Evil

Can’t you take a joke? In the time and place where I grew up, as I have written before , Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear. Many of these judges held legal and social views I found profoundly wrong. But they were careful to protect the prestige and integrity of the courts they served, and to avoid giving the impression that they were just ordinary players in the poisonous politics of segregation. No matter their private misgivings, they publicly served the law and upheld the Constitution. In no small part I owe my choice of profession to the memory of their service. Here is the federal bench 2012...

Pirates of the Corporation

Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured. And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]” Kathleen Sullivan, the lawyer for the Royal Dutch Petroleum Company, did not flinch: “Justice Breyer, yes, the corporation would not be liable.” She helpfully added that under maritime law, Blackbeard’s victims could sue his ship and get its value. But as for the corporation, no. A few minutes later, Breyer was back. “What about slavery? ... That seems like contrary to international law norms, basic law...

The Court That Walks Off Cliffs

Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona— the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question. Early indications are that the Roberts Court has seen the abyss, and it works. Its two most radical decisions, District of Columbia v. Heller and Citizens United v. Federal Election Commission , both represented quantum leaps toward writing the hard-right agenda into the Constitution. We’ll get another indication of how willing to jump the Court’s majority is, obviously, when the Court decides the mammoth health-care cases later this term. To reach the...