There's such a kind of complicated line between politics and the law and we don't sit around and say, hey, you know, what would Oliver Wendell Holmes have had to say to this.

If Americans actually have the conversation about our disastrous prison policies, we'll understand the trends all move in very dangerous directions: we lock up more people, for less violent crime, at ever greater expense, breeding more dangerous criminals who often come out unemployable, violent and isiolated.

For the most part, much of the legal world's attention has been focused on Donald Trump and his attacks on Gonzalo Curiel, the federal judge who is currently presiding over the Trump University fraud cases in California. Trump somehow managed to offend surprising numbers of establishment Republicans.

I just don't think we think about jurists as rock stars or great thinkers, particularly in the political world.

I think particularly on the left, progressives wanted more bombast and more.

Taking legislative authority away from the federal government doesn't necessarily mean freer individuals. It might just mean granting vastly more authority to the states--which already have far broader police powers than most of us would care to admit.

A lot of conservative writers have twisted that argument in the conversation around Judge [Gonzalo] Curiel and said this is identity politics as played by liberals. And that I think what they're trying to say is that progressives are the first to say.