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

A New Era for the Supreme Court

The transformative potential of a shift in even one seat

(Photo: Flickr/MitchellShapiroPhotography)
This article appears in the Fall 2016 issue of The American Prospect magazine. Subscribe here. The 2016 term of the Supreme Court beginning in October marks its 48th year in a row under the leadership of a conservative chief justice appointed by a Republican president. That is more than one-fifth of the Court’s history. Saying that the Court is a political institution is now like saying there is a global economy: It is simply a fact. The Court has gotten increasingly more conservative with each of the Republican-appointed chief justices—Warren E. Burger (1969–1986), William H. Rehnquist (1986–2005), and John G. Roberts Jr. (2005–present). All told, Republican presidents have appointed 12 of the 16 most recent justices, including the chiefs. During Roberts’s first decade as chief, the Court was the most conservative in more than a half-century and likely the most conservative since the 1930s. In the five terms before Justice Antonin G. Scalia’s...

The Junior Justice

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

Steve Petteway, Collection of the Supreme Court of the United States
This article appears in the Spring 2015 issue of The American Prospect magazine. Subscribe here . Celebrate our 25th Anniversary with us by clicking here for a free download of this special issue . On the last day of Elena Kagan’s first term as a justice, in 2011, the Supreme Court announced an important decision about government limits on money in politics. The Court struck down the Arizona Citizens Clean Elections Act, which provided public funding for candidates who agreed to limit their overall spending in state campaigns. When a privately funded candidate spent money on advertising, for example, the state gave publicly funded candidates roughly the same amount up to specific limits. The Court majority held that the matching funds that these candidates received “penalized” opposing candidates as well as groups making independent expenditures, and, as a result, “burdened their ability to fully exercise their First Amendment rights.” No interest of the...

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
The 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...