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.
Washington’s Landmark Antigay Case
by Stuart Taylor, Jr.
Is signing a petition a public act, like holding up a protest sign, or is it a private decision, like casting a vote? That question is before the Supreme Court next month, in a case that could have far-reaching implications for activism on both the left and right.The controversy began last year when 138,000 Washington state residents signed a petition to repeal benefits for same-sex domestic partners. The effort, which became Referendum 71, failed at the ballot box. But that wasn’t the end of
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Is signing a petition a public act, like holding up a protest sign, or is it a private decision, like casting a vote? That question is before the Supreme Court next month, in a case that could have far-reaching implications for activism on both the left and right.The controversy began last year when 138,000 Washington state residents signed a petition to repeal benefits for same-sex domestic partners. The effort, which became Referendum 71, failed at the ballot box. But that wasn’t the end of
Is signing a petition a public act, like holding up a protest sign, or is it a private decision, like casting a vote? That question is before the Supreme Court next month, in a case that could have far-reaching implications for activism on both the left and right.
The controversy began last year when 138,000 Washington state residents signed a petition to repeal benefits for same-sex domestic partners. The effort, which became Referendum 71, failed at the ballot box. But that wasn’t the end of it: Washington’s secretary of state, Sam Reed, tried to make the signers’ names public, citing state law. Fearing harassment, some signers sued to block the release of their names-setting the stage for a lose-lose decision.
Judicial Factions And The Constitution
by Stuart Taylor, Jr.
The news from the March 2 oral argument in the Supreme Court’s biggest pending case was that the five conservative justices seem poised to make the Second Amendment right to bear arms applicable to state and local gun controls, as well as federal. In the process, they will strike down the unusually strict handgun bans in Chicago and Oak Park, Ill. — probably in June.
But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.
Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.
The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.
Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.
Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.
Brutal, Yes ‘Torture,’ Probably Not
by Stuart Taylor, Jr.
Is waterboarding torture? Of course it is, say Attorney General Eric Holder and many others who have confidently declared that the Bush administration’s lawyers were clearly wrong to approve as legal the CIA’s proposed use of waterboarding and nine other brutal interrogation methods.
I agree that waterboarding is torture as colloquially understood by many of us and that it should be banned.
But that does not mean that the CIA’s proposal — eventually endorsed by officials up to and including Present Bush — was illegal under the extremely narrow definition of "torture" that Congress wrote in 1994 when it made the practice a federal crime.
Indeed, the recently released report by Associate Deputy Attorney General David Margolis, the senior Justice Department expert on legal ethics, implicitly contradicts the strikingly superficial analysis underlying Holder’s assertions that waterboarding is illegal torture.
And while Margolis did not directly rule on the legality of the CIA’s interrogation methods, his 69-page analysis more strongly supports the view that the kind of waterboarding that the agency proposed in 2002 was not illegal torture.
You would hardly guess this from the media coverage after Justice released the Margolis report and related documents on February 19.
The report’s central conclusion absolved Jay Bybee and John Yoo — the Bush-appointed Justice Department lawyers who prepared two key "torture memos," both dated August 1, 2002 — of unethical conduct. Margolis firmly rejected a pervasively slanted, and unethically leaked, effort by Holder protégés in the Justice Department’s Office of Professional Responsibility to subject Bybee and Yoo to discipline from the bar. (The OPR is not to be confused with the Office of Legal Counsel, known as the OLC, which Bybee headed in 2002 with Yoo as a deputy.)
A Bad Place To Be
by Stuart Taylor, Jr
The Voting Rights Act of 1965 “was one of the great moments in the history of American democracy” and “the death knell of the Jim Crow South.” Over the years, however, it has been twisted into an engine of racial rigging and polarization. This has been accomplished by misguided judges, unwise and self-serving congressional Republicans (as well as Democrats), and liberal ideologues in civil rights groups and the Civil Rights Division of the Department of Justice. Indeed, those forces have transformed the Voting Rights Act into “a brake on true racial progress today.”
That is the essence of the story told by Abigail Thernstom in her meticulously researched and forcefully argued book. President Obama’s success in winning white votes has completed the proof that the white racism which the sixty-four-year-old law was designed to combat has become a marginal factor in American politics. And the Voting Rights Act, which has come to be little more than a racial gerrymandering machine, has become “a barrier to greater integration” of our politics. Yes, we still have glaring racial inequalities rooted in our history of slavery and racism. About this there can be no doubt. But “the caste system that originally justified taking race into account in structuring elections is gone,” Thernstrom concludes, and “further progress demands that we now cease to take race into account.”
More Miranda Idiocy
by Stuart Taylor, Jr.
Suppose that your child is being held in a secret location by kidnappers who threaten to kill her within two hours unless they’re paid a ransom of $100,000 that you can’t raise. Suppose further that the FBI has just captured one of the kidnappers.
Would you want the agents to say this? "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning."
And would you want them to stop asking questions the second the suspect asks for a lawyer?
Neither the Fifth Amendment nor Miranda forbids aggressive interrogation to protect public safety.
Now imagine a more realistic scenario, along the lines of Al Qaeda’s aborted 1995 "Bojinka" plot: After learning that Qaeda terrorists with virtually undetectable bombs are planning to blow up 12 airliners carrying almost 4,000 passengers very soon, the FBI captures one of them. Would you want him Mirandized?
The questions answer themselves.
Reasonable people disagree about how much coercion interrogators should use to extract potentially lifesaving information from terrorists. (None at all, President Obama unwisely ordered soon after taking office.)
But no reasonable person could doubt that starting out with "you have the right to remain silent" is not the way to save lives.
Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.
A Course Correction On Terrorism
by Stuart Taylor, Jr.
I have instructed my subordinates that suspected Al Qaeda terrorists captured anywhere in the world should be interrogated extensively — with safeguards against abuse — before any Miranda warnings or access to lawyers. This approach is legal and it may save lives. Although the specific evidence obtained might in some cases be inadmissible in court, the suspects will be prosecuted based on other evidence once interrogation is completed.
This is a major departure from the established policy of all past administrations, of the FBI, and until now of my administration. Nobody should fault those who diligently followed established policy in handling the suspect in the Christmas Day airplane bombing attempt. But I have decided that my new policy is more likely to obtain critical intelligence from captured terrorists.
President Obama should say something like this, something fairly dramatic, to counter the surging Republican campaign to brand him soft on terrorism.
He already faces a bipartisan push to block civilian trials of Khalid Shaikh Mohammed and other 9/11 conspirators and to kill his plan to close the Guantanamo Bay prison camp. Whether he wins or loses those battles, he risks permanent political damage unless he dispels the soft-on-terrorism charge.
The charge is unfair. But it is gaining traction because of two glaring mistakes.
One was the decision by Attorney General Eric Holder’s Justice Department to advise Umar Farouk Abdulmutallab after only 50 minutes of interrogation that he had a right to stop talking — which he did. This blunder was compounded by Homeland Security Secretary Janet Napolitano’s fantasy that "the system worked," by Obama’s fatuous assertion that Abdulmutallab was "an isolated extremist," and by Holder’s unconvincing defense of the initial mistake in a five-page letter to Senate Republican Leader Mitch McConnell on February 3.
Congress Can Help Repair Ruling’s Damage
by Stuart Taylor, Jr
One virtue of the Supreme Court’s lamentable January 21 decision striking down all restrictions on corporate (and, by implication, union) independent spending in federal election campaigns is that Congress might be able to fix the biggest problem that the five conservative justices created.
Contrary to many a liberal critique, that problem is not that additional corporate and union cash will pour into campaigns and send the political corruption quotient soaring. It is that few stockholders (or union members) have consented to such corporate or union spending of their money.
And the most logical, politically viable, and constitutionally defensible solution would be a law requiring such consent.
The justices would likely — and justifiably — strike down any congressional response designed simply to keep as much corporate cash out of politics as possible, such as banning campaign spending by federal contractors. The Court has held for more than 30 years that independent spending on campaigns is protected speech that cannot be restricted either in the name of minimizing corruption or to limit the political clout of rich people. That’s why Citizens United v. Federal Election Commission was correct as applied to nonprofit ideological corporations whose very purpose is to advance political causes and candidates.
A for-profit corporation is different. Investing in its stock in no way signals consent for the company to spend that money attacking political candidates whom many of its stockholders support, or endorsing candidates whom many oppose.
Conservatives Forfeit High Ground On Activism
by Stuart Taylor, Jr.
For decades conservatives have accused liberal Supreme Court majorities of judicial activism, by which I mean sweeping aside democratically adopted laws and deeply rooted societal traditions to impose their own policy preferences based on highly debatable interpretations of the Constitution’s language and established meaning. On Thursday, the five more conservative justices — and in particular Chief Justice John Roberts and Samuel Alito, who went well beyond anything they’ve said before — forfeited whatever high ground they once held in the judicial activism debate.
I refer, of course, to the hugely important 5-4 decision freeing all corporations and, by clear implication, labor unions to spend unlimited sums supporting or opposing federal candidates.
The majority’s sweeping and unprecedented interpretation of corporations’ First Amendment rights, written by Justice Anthony Kennedy and joined by Antonin Scalia and Clarence Thomas, as well as Roberts and Alito, wiped out federal laws dating back 63 years and two major precedents.
And while the Court’s green light for "independent expenditures" of corporate funds on elections left intact the ban on direct corporate contributions to candidates, it nonetheless risked increasing the already worrisome dependence of candidates on various forms of big-business and big-labor support.
Kennedy all too cavalierly bats aside a compelling argument for banning executives from spending shareholder funds on elections.
The End of Restraint
by Stuart Taylor, Jr.
The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-
The Supreme Court’s five conservatives are properly protective of American citizens’ First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court’s blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders’ money-without their consent-into ads supporting or attacking federal candidates. Indeed the 5-4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations-including multinationals controlled by foreigners-will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.
So the court’s decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all f…
A Congress Worthy Of Deference?
by Stuart Taylor, Jr.
As one who has preached for years that presidents and Supreme Court justices should show more deference to Congress, I must admit that Congress seems less and less worthy of it. Might presidential and judicial despotism — if enlightened — be the lesser of evils?
Last week, for example, I criticized President Obama for failing to seek detailed legislation on detention and interrogation of terrorism suspects. This brought a reminder from an administration official that any effort to get a responsible detention bill past congressional Republicans — who seem far more eager to demagogue the president’s plan to close Guantanamo than to grapple with the hard issues — would probably be doomed.
A fair point. I still think that Obama should give it a try. But I would not bet on a constructive Republican response.
Harry Reid’s "no Negro dialect" line was a classic example of Michael Kinsley’s definition of a gaffe as a politician telling the truth.
And when Obama is faulted for letting Democratic potentates on the Hill festoon the stimulus and health care bills with special-interest favors, I wonder: Could he have forced the potentates to be responsible had he tried?
On another front, I have faulted the Supreme Court’s conservatives for seeking to stretch First Amendment law to the breaking point to gut campaign spending laws. But those laws are so pockmarked with congressional efforts to stifle critics and other incumbent-protection games as to command little respect.
Anyone who has seen a few congressional hearings and a few Supreme Court arguments has to notice that the more democratic branch often seems a sorry circus by comparison with the analytical rigor and intellectual seriousness of the unelected justices, liberal and conservative alike.