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.
Stuart Taylor: ‘Most Amazing Supreme Court Theater I’ve Ever Seen’
by Stuart Taylor, Jr and Jackie Judd
JACKIE JUDD: Good day and welcome to Health Reform and the Court. I’m Jackie Judd. The historic decision from the Supreme Court today leaves the health overhaul law largely intact. The individual mandate is declared constitutional. The court also ruled that states cannot be financially penalized if they choose not to expand Medicaid to millions of the uninsured. Those are the headlines, here with the details is our legal analyst Stuart Taylor who was in the courtroom when the decision was announced. What was it like?
STUART TAYLOR: It was the most amazing Supreme Court theater I’ve ever seen for 50-some minutes. Roberts the chief justice went on for 20 minutes. When you’re three minutes in, you think “Oh my gosh, they’re going to strike down the mandate.” When you’re eight minutes in, you think “Oh no! They’re going uphold it.” And they do uphold it. They uphold it under the taxing power.
JACKIE JUDD: And he, of course, is the deciding vote.
STUART TAYLOR: He is the deciding vote on everything, pretty much. Then, when he starts in on the Medicaid expansion, he starts in, “Oh, they’re striking it down. By 7-2.” And indeed they were. But the footnote is, all this means is the law cannot force the states to join this new expansion by threatening them with the loss of all their existing Medicaid funds if they don’t.
JACKIE JUDD: Let’s start first with the mandate. As I said, it was a 5-4 vote with Roberts breaking the tie. How did they reach that conclusion?
STUART TAYLOR: Well, there were two sources of federal power that the government claims sustained the mandate. The first is the power to regulate interstate commerce, and 90 percent of the public discussion has been about that issue: Can in the name of regulating interstate commerce, can you force people to buy an unwanted commercial product?
Times Have Changed: Civil-Rights Era Voting Law Needs Reform
by Stuart Taylor, Jr
Times change. And many laws that were once essential to help us progress eventually become outdated, counterproductive, and in need of revision, if not repeal.
But by then such laws have often become sacred cows, perpetuated long past their glory days by self-serving politicians, interest-group lobbies, and media nostalgia or bias. Their reach is very hard to restrain unless an unusual opportunity presents itself.
So it is with Section 5 of the iconic Voting Rights Act of 1965, which was initially set to expire in 1970. It requires eight states in the Deep South, plus Alaska and parts of seven other states, to obtain “preclearance” from the U.S. Justice Department (or a slow-moving special court) before making even the minutest change in their voting rules.
Section 5 played a critical role in ending the disenfranchisement of Southern blacks and breaking the back of American apartheid. But we live in a different America. The very racial progress that Section 5 helped accomplish has arguably made it unnecessary and certainly calls for reducing its intrusion on state powers.
Indeed, many or most of the states and localities covered by Section 5 have become as protective of voting rights as the rest of the country. And Section 2 of the act provides ample authority to deal with residual voting rights violations — which no doubt still occur — through the ordinary judicial process.
Efforts to reform Section 5 have nonetheless been beaten back by left-wing Democrats, right-wing Republicans (some of whom benefit from the racial gerrymandering it imposes, while others would prefer its outright elimination on ideological grounds), the civil rights lobby, and its allies in the news media and the Justice Department’s Civil Rights Division.
The Health Law And The Supreme Court: A Primer For The Upcoming Oral Arguments
by Stuart Taylor, Jr
How big is the constitutional challenge to the Obama health care law, which the Supreme Court will hear on March 26-28?
For starters, it’s big enough for the justices to schedule six hours of arguments — more time than given to any case since 1966. After all, the Affordable Care Act is arguably the most consequential domestic legislation since the creation of Medicare in 1965.
It’s also big enough to attract more briefs than any other case in history. At least 170, including more than 120 “friend-of-the-court” or amicus briefs, have been filed, many of which are joined by 10, 20 or more groups of every imaginable description.
And, finally, it’s big enough to cause the justices to postpone until October half of the 12 cases that they would ordinarily hear in April in order to clear time to get started on the health care opinions that they are expected to issue by the late June, or possibly, early July.
What’s it all about?
The immediate issues, in the order the court will hear them, begin with the question of whether the so-called “individual mandate” — which requires that almost all Americans without coverage buy individual health insurance policies or pay fines — is ripe for adjudication now. Or must the case be deferred until 2015 because of the 1867 Anti-Injunction Act, which bars federal courts from ruling on the constitutionality of tax laws before payments are due?
After that come the arguments about what many consider the central issue: whether the mandate, which is unprecedented, should be voided because it represents an unconstitutional exercise of Congress’ powers to regulate commerce and to levy taxes.
Analysis: Keys To The Supreme Court’s Health Law Review
by Stuart Taylor, Jr
By agreeing today to hear challenges to President Obama’s 2010 health care law, the Supreme Court set the stage for a decision — probably in late June and in the midst of the presidential campaign — that could be among its most important in decades.
The case, which will probably be argued in March on a date still to be announced, is especially momentous because it not only will determine the fate of President Barack Obama’s biggest legislative achievement but also will cast important light on the Supreme Court’s future course under Chief Justice John Roberts on issues of federal government power.
The central issue — but not the only important one — is whether Congress exceeded its constitutional powers to regulate interstate commerce and to levy taxes when it adopted the so-called “individual mandate” at the heart of the health care law.
That provision would require millions of people starting in 2014 to buy commercial health insurance policies or pay financial penalties for failing to do so.
The court also agreed to decide a challenge to the Affordable Care Act’s provision essentially requiring states greatly to expand their Medicaid spending.
The court made clear that if it decides to strike down the individual mandate or Medicaid provision, it will also decide which of the 975-page law’s hundreds of other provisions should go down too, by divining whether Congress would have wanted some or all of them to be effective even without the voided provision or provisions.
Finally, the court agreed to decide whether — as one federal appeals court ruled — the litigation surrounding the individual mandate must be deferred until 2015 because of the 1867 “Anti-Injunction Act,” which bars courts from striking down tax laws before they take effect.
Analysis: Handicapping Health Care Lawsuits, And The Truth-In-Labeling Factor
by Stuart Taylor, Jr
Beneath the thousands of pages of legal arguments in the health care lawsuits to be decided sooner-or-later by the Supreme Court lies an easier-to-grasp, if largely unarticulated, background question.
Can Congress and the president use an unprecedented and potentially limitless expansion of the power to regulate interstate commerce to avoid the political hazards of calling a tax a tax? Or might some justices effectively impose a constitutional truth-in-labeling requirement?
In order to explore these questions, it’s important to first review the current tally of wins and losses. So far, one federal appeals court in June upheld the mandate by 2-1. A second struck it down in August by 2-1. And a third on Sept. 8 threw out two other challenges on jurisdictional grounds. Federal district courts have also issued conflicting rulings.
With more cases in the pipeline, it’s certain that the Supreme Court will step in to decide the mandate’s fate. The final decision will probably come down next June, if the Obama administration files its petition for review promptly this autumn, but certainly by 2013.
Most legal experts have long predicted that the Supreme Court will uphold it. Although the confidence level has dipped as lower-court judges have gone both ways, Walter Dellinger, former acting solicitor general under President Clinton, predicts a 7-2 vote to uphold. Tom Goldstein, another leading Supreme Court advocate, who represents AARP as a friend of the court supporting the law, predicts 7-2 or 6-3, adding that “the opponents of the law have done a tremendous job at articulating their theory, and they’ve gotten more traction than I imagined they would,” but he doesn’t “see a realistic chance of them winning.”
But David Rivkin, one of the lead lawyers challenging the health care law, confidently predicts a 5-4 vote to strike down the individual mandate.
Drop the DSK Charges
by Stuart Taylor, Jr
Nafissatou Diallo seems "vivid and compelling" when describing how (she says) Dominique Strauss-Kahn violently sexually assaulted her–though not when discussing her murky past, shady associates, $100,000 in bank deposits, and the like.
So says Newsweek, which interviewed her for a cover story. Many viewers of her TV appearances agree. So why shouldn’t she get her day in court?
She should–in civil court. But not in criminal court, in part because of her history of telling vivid and compelling lies, including her invention of a years-ago fictional gang rape and her false statements about her movements immediately after the alleged Strauss-Kahn assault. Plus the inherent implausibility of her claim that a man she had never met suddenly rushed in naked from the bathroom while she was cleaning his suite, attacked her like a madman, and forced her without a weapon to perform oral sex.
Diallo’s history of serial lying alone makes it clear that the prosecution could never prove Strauss-Kahn guilty of the violent sexual assault charged in the indictment beyond a reasonable doubt.
In short, Manhattan District Attorney Cyrus Vance Jr. should drop the case.
Remember the Duke lacrosse rape fraud? Remember Tawana Brawley?
Some seem to unlearn the lessons of such cases every time a poor (or not so poor) woman of color accuses a rich (or not so rich) white male of doing something horrible. Especially when the accused admits to conduct that was, at best, unseemly and crude.
The hard fact is that in a great many "he said, she said" cases–including this one–it is impossible to be confident of whether or not the woman consented.
The judgment underlying the criminal justice system’s reasonable-doubt rule is that–as terrible as it is for a victim (especially of a sex crime) to see a criminal escape punishment–it is far, far worse for an innocent person to be convicted of a crime.
Justice Scalia’s Overheated Dissent
by Stuart Taylor, Jr
"Terrible things [are] sure to happen," including many "murders, robberies, and rapes."
That was dissenting Justice Antonin Scalia’s dire prediction on May 23, when by a 5-to-4 vote the Supreme Court sort-of-ordered California to reduce its prison population of about 150,000 by 37,000 as a remedy for "cruel and unusual" denial of medical care to inmates.
Thirty-seven thousand hardened criminals loosed among us! Soaring rates of murders, robberies, and rapes!
I don’t think so. For two reasons.
First, 37,000 prisoners are not going to be released anytime soon, if at all, as a result of this decision. Lost in the noise was the majority’s strong suggestion that the lower court extend from two to five years California’s deadline for reducing its prison population. Also drowned out was the majority’s hope that the state may find ways to fix prison medical care with no mass release at all.
Second, while several thousand prisoners have already been released early and thousands more will be, many or most of these will be minor, nonviolent, non-dangerous drug offenders and the like who should never have been given long prison terms in the first place.
This is not to deny that some of those released will commit violent crimes. People released from prison after serving their time often commit violent crimes. It’s called recidivism.
Nor is this to deny that the dissenters in the prison release case, Brown v. Plata, made some strong points, especially as to the flaws in the lower court decision – by three of the most liberal activist judges in the country – that the majority nominally affirmed.
Analysis: What Does Judge Vinson’s Health Law Decision Mean?
by Stuart Taylor, Jr
Jackie Judd talks with legal analyst Stuart Taylor about the legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void.
Listen to audio of the interview.
JACKIE JUDD: Good day, this is Jackie Judd for Kaiser Health News. A legal blow today to the new health care reform law. Federal Judge Roger Vinson, in Florida, declared the entire law void because its core – the mandate that almost all Americans obtain health insurance – violates the Commerce Clause [of the U.S. Constitution]. The suit was brought by some 26 states. Legal analyst Stuart Taylor, a contributing editor for Newsweek and the National Journal, is with us. Thank you, Stuart, for joining us. Walk us through the judge’s reasoning.
STUART TAYLOR: Nice to be with you. The gist of it was that Congress has no power to require individuals to purchase health insurance. Because the only basis for the power that the federal government has claimed is the power of Congress to regulate interstate commerce. And the judge held that that power – although it’s very broad, and the Supreme Court may decide it’s broad enough to justify this law – Judge Roger Vinson said it’s not broad enough to require someone to purchase a commercial product. That’s the gist of it.
JACKIE JUDD: And then he went a step beyond that, saying that the individual mandate is so inextricably linked to the rest of the bill that one couldn’t be separated from the other and therefore the entire bill would be void?
Analysis: The Long Road To A Supreme Court Decision On Health Law’s Mandate
by Stuart Taylor, Jr
The HCLSC – health care litigation spin cycle – is in overdrive now that a Reagan-appointed federal judge has strongly signaled in court that he is very likely to follow a George W. Bush appointee who struck down the individual mandate at the heart of the new health care law.
Republican critics of the law were saying that “several” (that is, two) judges had found unconstitutional the requirement that Americans obtain insurance or pay penalties. Meanwhile, President Obama was saying: “We’ve got 12 federal courts who have dismissed similar lawsuits. So the majority of courts who looked at this issue so far are absolutely convinced that the health care bill is [constitutional].” Twelve! Sounds convincing. But Obama neglected to note that 10 of those lawsuits were mostly beside the point because they were not aimed at the individual mandate or were dismissed on grounds that did not uphold its constitutionality.
If counting judicial noses at this early stage were a reliable guide to the likely fate of the health care law on appeal, the score would stand at two Clinton-appointed judges, George Steeh and Norman Moon, upholding the individual mandate; Bush-appointed Henry Hudson striking it down Dec. 13, and Reagan-appointed Roger Vinson sounding during an oral argument on Dec. 16 like he would do the same. The four sit in Detroit; Lynchburg and Richmond, Va., and Tallahassee, Fla., respectively.
But district judges’ rulings tell us little or nothing about what the federal appeals courts and the Supreme Court will ultimately do with these cases. Below is an overview of the litigation, what it’s about, and how it’s likely to unfold.
How many health care lawsuits are there? More than 20 have been filed around the country, some going to the heart of the law and some peripheral.
Transcript: Stuart Taylor On Health Law Decision
by Stuart Taylor, Jr
Lawyer and journalist Stuart Taylor discusses today’s development in health care reform. U.S. District Court Judge Henry Hudson in Virginia struck down a key part of the new health law, saying that the mandate on most Americans to buy health coverage is unconstitutional.
Watch the video or listen to the audio.
Transcript:
JACKIE JUDD: Good day. This is Health on the Hill. I’m Jackie Judd. The lynch pin of the health care overhaul law has been declared unconstitutional. Federal Judge Henry Hudson in Virginia ruled that Congress overstepped its authority by requiring that virtually all Americans have health insurance. Here to discuss the ruling, and its implications, is Stuart Taylor, contributing editor for Newsweek and The National Journal, welcome so much.
STUART TAYLOR: Nice to be with you, Jackie.
JACKIE JUDD: The judge ruled in the case brought by the state of Virginia, on what did he base his ruling?
STUART TAYLOR: He said that Congress had no power and the President, and no power in the U.S. Constitution to require individuals who don’t want to buy health insurance to either buy it or pay a penalty for not buying it. And the idea is that Congress does not have unlimited power.
Now, a lot of us have gotten used to the idea that their power is virtually unlimited except for specific provisions of the Bill of Rights, but the Supreme Court has said that they have lots of power but it’s not unlimited. He said penalizing somebody, taxing somebody, call it what you will, for inactivity, just for being born and raised in the United States and deciding not to buy health insurance is beyond the power of Congress and the federal government.
JACKIE JUDD: This is known as the individual mandate, which doesn’t kick in until 2014. What did the judge say about the rest of the bill?