Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.
Gun-Rights Decision May Have Limited Impact
by Stuart Taylor, Jr.
For gun controllers, the bad news is that the Supreme Court Monday ruled for the first time that the right “to keep and bear arms” in the U.S. Constitution’s 2nd Amendment restricts state and local power to impose gun controls.
The good news for gun control is that this new-found right may not restrict gun-control laws very much.
The 5-4 decision does appears to doom the exceptionally strict bans imposed by Chicago and Oak Park, Ill., on possession of handguns, even in the home for self-defense, that were before the court in the case at hand. A strict New York City handgun ban may also fall.
But no statewide gun-control law appears to be in immediate jeopardy, because nothing in Justice Samuel Alito’s majority opinion appeared to undercut the court’s assertions in a 2008 decision striking down a similarly strict handgun ban in the District of Columbia that a wide range of less stringent gun-control laws could be upheld as reasonable public-safety measures.
“We made it clear in Heller,” Alito wrote, “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here.”
The 2008 decision held for the first time that the 2nd Amendment restricts federal gun-control laws by guaranteeing an individual right to own a gun for self defense, and not merely for service in the now-defunct state militias, as the four dissenters had argued.
Because the District of Columbia is a federal enclave, the 2008 decision did not resolve whether the 2nd Amendment also restricts state and local gun-control laws. That was the issue resolved by Monday’s decision.
Supreme Court Sides with Universities and Members of Oversight Board
by Stuart Taylor, Jr.
Although the Supreme Court’s 5-4 ruling in favor of gun rights is getting most of the attention during its busy, final day before a three-month recess, there were several other significant rulings. Here are the highlights:
– The justices ruled by 5-4 that the University of California’s Hastings Law School can deny official recognition, funding, and campus facilities to a Christian student group that excludes openly gay students and others who will not follow the group’s religious tenets from obtaining leadership roles.
Justice Ginsburg’s majority opinion, with Justice Kennedy joining the four liberals this time, stressed that the Christian group was seeking “a preferential exemption” from Hastings’s policy of recognizing and assisting only student groups that “open eligibility for membership and leadership to all students.”
Justice Alito’s dissent, joined by the three other conservatives, complained that that the principle underlying the majority’s decision was “no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” The case was Christian Legal Society v. Hastings College of the Law.
– The court struck down as an invasion of presidential power a key provision of the 2002 Sarbanes-Oxley law, which was designed to prevent corporate accounting scandals like those that had caused the collapse of Enron and WorldCom.
The now-voided provision provided an unusual two-level protection against removal for members of the newly created Public Company Accounting Oversight Board. It provided that neither the Securities and Exchange Commission nor the president could dismiss board members without some “cause.”
Kagan Hearing Is the Charade She Detests
by Stuart Taylor, Jr.
Senate Judiciary Committee Chairman Patrick Leahy of Vermont and senior Republican Jeff Sessions of Alabama this afternoon set the broad themes of the committee’s nomination of Solicitor General Elena Kagan to the Supreme Court in their opening statements.
While stressing Kagan’s distinguished legal résumé–acclaimed Harvard Law School dean, first woman in that position, respected professor, seasoned former White House official–Leahy also launched the first of a series of attacks by committee Democrats on the “conservative judicial activism” of the current Supreme Court majority.
Sessions, on the other hand, criticized Kagan as too inexperienced, too liberal, too activist, too political, too friendly to big government, and too soft on illegal immigrants, among other things.
The committee’s other 11 Democrats and six Republicans mostly followed similar patterns in their own 10-minute opening statements. Today’s hearing began shortly after 12:30 p.m. and will end late this afternoon with Kagan’s own opening statement.
Leahy, suggesting that the Court’s conservatives are “partisans,” focused his fire especially on the 2000 decision in Bush v. Gore and this January’s decision in Citizens United v. FEC. In the latter, Leahy said, “five conservative justices rejected the court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections.”
Citizens United held for the first time that corporations have First Amendment rights to spend unlimited amounts supporting and opposing political candidates.
Dems Use Kagan Hearing to Go After Roberts
by Stuart Taylor, Jr.
Senate Judiciary Committee Chairman Patrick Leahy of Vermont and senior Republican Jeff Sessions of Alabama this afternoon set the broad themes of the committee’s nomination of Solicitor General Elena Kagan to the Supreme Court in their opening statements.
While stressing Kagan’s distinguished legal résumé–acclaimed Harvard Law School dean, first woman in that position, respected professor, seasoned former White House official–Leahy also launched the first of a series of attacks by committee Democrats on the “conservative judicial activism” of the current Supreme Court majority.
Sessions, on the other hand, criticized Kagan as too inexperienced, too liberal, too activist, too political, too friendly to big government, and too soft on illegal immigrants, among other things.
The committee’s other 11 Democrats and six Republicans mostly followed similar patterns in their own 10-minute opening statements. Today’s hearing began shortly after 12:30 p.m. and will end late this afternoon with Kagan’s own opening statement.
Leahy, suggesting that the Court’s conservatives are “partisans,” focused his fire especially on the 2000 decision in Bush v. Gore and this January’s decision in Citizens United v. FEC. In the latter, Leahy said, “five conservative justices rejected the court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections.”
Citizens United held for the first time that corporations have First Amendment rights to spend unlimited amounts supporting and opposing political candidates.
Kagan Won’t – and Shouldn’t – Disclose Views on Issues
by Stuart Taylor, Jr.
Republican Sen. Charles Grassley of Illinois says he will press Elena Kagan at her confirmation hearing to be “as forthcoming” about her views of specific issues as she once argued other Supreme Court nominees should be. Many commentators have also called on her to disclose her specific views. But Kagan will not do that. And she should not.
Her current role has no doubt given Kagan a very different point of view than when she complained in a 1995 book review that confirmation hearings had become “a vapid and hollow charade.” Indeed they have–but not because nominees refuse to state their views on specific issues.
Supreme Court confirmation hearings have become a vapid and hollow charade because too many senators spend their time posturing for the cameras and too many nominees insist disingenuously that judging requires little more than mechanical application of law to facts. Kagan called on senators in her 1995 book review to demand nominees’ “views on particular constitutional issues…involving privacy rights, free speech, race and gender discrimination, and so forth.” Such demands are understandable. Supreme Court nominees seek life tenure with no accountability to voters, ever, in a position with far more power than any senator has. Shouldn’t we know what they think about the issues that they will decide?
Well, no. The case against nominees’ disclosing their views about specific issues is overwhelming. That’s why no Supreme Court nominee has ever discussed his or her views extensively, with the exception of Robert Bork in 1987. And Bork did so only because he would have been doomed had he refused to explain his fiery public attacks on dozens of major constitutional precedents.
Bork was, of course, doomed anyway. The reasons for reticence, in ascending order of importance, are these:
Order on the Court
by Stuart Taylor, Jr.
With Solicitor General Elena Kagan’s Supreme Court confirmation hearing due to start June 28, left-leaning skeptics worry that she may be more deferential to presidential war powers–at the expense of civil liberties–than retiring Justice John Paul Stevens.
It’s true that in the future, the justices are likely to take the president’s side more often than in the George W. Bush years. But if that’s the case, the main reason won’t be the expected confirmation of Kagan. The real reason may be simpler: that the court has less cause to intervene in national-security matters now that the Bush-Cheney administration’s extravagant claims of presidential power are history.
This is not to dismiss the speculation–by leftist critics, but also by some supporters of Kagan, including Harvard Law colleague Charles Fried–that she may be more inclined to support presidential war powers than Stevens. It was Stevens, after all, who led the liberal justices’ charge against Bush’s denial of due process to detained terrorism suspects. In doing so, Stevens and his liberal colleagues stretched judicial power over the military further than ever before.
View a gallery of recently-released documents marking Elena Kagan’s legal career, Jason Reed / Reuters-Corbis
While Kagan has said very little about such issues, her work representing the government in national-security cases has doubtless given her an appreciation of the challenges facing any wartime president. And records from her four years in the Clinton White House suggest that she may be less liberal overall than Stevens.
Leahy Proposal to Avoid 4-4 Ties: It’s About Timing
by Stuart Taylor, Jr.
Senate Judiciary Committee Chairman Patrick Leahy has floated the idea of passing a new law to allow a retired Supreme Court justice to sit on a case in which a current justice has recused, to avoid 4—4 ties.
This proposal, reported on June 16 by National Law Journal’s Blog of Legal Times based on an interview with Leahy, who said he had drafted a bill and would probably introduce it, would be “a major shift in how the Court operates,” the blog said.
Here’s the BLT report. Leahy’s idea raises interesting questions and there is much to be said both for and against it.
But why is it popping up now? And why was Senator Orrin Hatch, R-Utah, so quick to tell the blog that his initial reaction was negative?
It has been widely known for many decades that recusals can produce 4-4 ties, an outcome regarded as a waste of the Court’s time because a tie vote creates no Supreme Court precedent, leaving the lower curt decision undisturbed, as though the justices had never studied the briefs, heard arguments, and cast their votes.
Leahy said that he got the idea of enlisting retired justices to avoid 4—4 votes from soon-to-retire Justice John Paul Stevens, who suggested it during a meeting.
Hmmmm. It’s not hard to see why Stevens–who is still sharp at age 90 and appeared to be torn about his decision to retire – might like to keep his hand in now and then.
As for Leahy, he is well aware that the only living justices who have already retired are David Souter and Sandra Day O’Connor.
Kagan’s Non-Denial Denial on Gay Marriage
by Stuart Taylor, Jr.
In 2009, while seeking confirmation as solicitor general, Elena Kagan gave a seemingly forthright written response when asked in writing by Sen. John Cornyn: “Given your rhetoric about the Don’t Ask, Don’t Tell policy – you called it ‘a profound wrong – a moral injustice of the first order’ – let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?”
Kagan’s entire response: “There is no federal constitutional right to same-sex marriage.”
Not much wiggle room there, you might think. Indeed, some Kagan supporters have cited this response in denouncing suggestions by critics that she might support a new right to same-sex marriage. So can we chalk Kagan up as a vote against same-sex marriage when she faces the issue as a justice? Well, no.
Cornyn clearly intended to ask whether Kagan’s personal view was that the U.S. Constitution should be interpreted to guarantee a right to same-sex marriage. But Kagan, when pressed later for clarification of her response, suggested somewhat opaquely that she had only been summarizing case law and public opinion. “I previously answered this question briefly, but (I had hoped) clearly, saying that ‘[t]here is no federal constitutional right to same-sex marriage,’ ” Kagan wrote in a March 18, 2009, letter to then-GOP Sen. Arlen Specter of Pennsylvania, now a Democrat. “I meant for this statement to bear its natural meaning. Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.”
The Right’s Bogus Charge Against Kagan
by Stuart Taylor, Jr
The most forceful line of attack on Elena Kagan during the confirmation hearing that starts Monday will be that she showed an "anti-military" bent when, as Dean of Harvard Law School, she "defied" a federal law by denying to military recruiters the help that the school’s Office of Career Services provided to other employers.
If senators and voters end up deciding that this is a fair characterization, it will be extremely damaging to Kagan’s chances. But it’s not fair.
Kagan does deserve some criticism for making rhetorical attacks on "the military’s" discrimination against gays while giving a pass to her former boss President Clinton and other Democrats who adopted the 1993 law that requires the military to discriminate.
But her policy did not single out military recruiters for disfavored treatment. Rather, it applied to them a longstanding law school rule denying any employer that discriminated against openly gay people access to the career services office.
And I’m betting that after she explains all the facts, she’ll be confirmed by a comfortable margin of 63-37 or thereabouts.
The claim that Kagan has been hostile to the military is confounded by evidence that — at the same time that she was enforcing the law school’s antidiscrimination rules against recruiters — she also praised the military as a "deeply honorable" and "noble" profession and took extraordinary pains to honor students who had served or planned to serve.
The Myth of the Conservative Court
by Stuart Taylor, Jr
The Supreme Court is dominated by right-wingers on a conservative activist, pro-corporate, anti-civil rights tear.
Or, perhaps, the court is driven by liberal activists who make up new constitutional rights out of whole cloth and may soon legislate a right to gay marriage.
It all depends on your point of view.
President Obama, his press secretary Robert Gibbs, Senate Judiciary Committee Chairman Patrick Leahy, other congressional Democrats, New York Times editorialists, liberal groups, and others have been attacking Chief Justice Roberts and the other conservative justices for being aggressively conservative corporate shills. These critics’ goals seem to include greasing the wheels for confirmation of Elena Kagan and laying the groundwork for bolder Obama attacks on the court if it keeps messing with his agenda.
Conservatives — who have for decades accused the court of usurping elected officials’ powers to flog liberal causes — now find themselves on the rhetorical defensive.
So the Heritage Foundation fought back on Wednesday by holding an event entitled "The Myth of a Conservative Court and Why Liberals Peddle It," with conservative icon Ed Meese, President Reagan’s attorney general, moderating.
A notice for the event suggested that panelists would argue that it is "a sign of liberal vulnerability to the charge of left-wing activism that they are trying to ascribe their activist ways to others" and to "hoodwink journalists into propagating a moral equivalency between different judges that does not exist."