Category Archives: National Journal

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In the Balance

by Stuart Taylor, Jr.

National Journal

Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.

McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and essentially vowed to move the Court sharply to the right in judicial philosophy.

The presumptive Republican nominee has identified Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as models.

Obama, who voted against both men during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.

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Supreme Trivia Quiz

by Stuart Taylor, Jr.

National Journal

Elsewhere in this issue I discuss how the outcome of the presidential election might affect the Supreme Court’s future. Below is a midsummer trivia quiz on the Court’s richly quotable past.

Some quotes are by justices, others are about them or the Constitution. Award yourself 1 point for identifying the author of a quote; 2 more for naming the case or the author’s written work (where applicable); and, for Nos. 20-25, add 3 degree-of-difficulty bonus points for naming the author. A perfect score is 81. A score of 42 qualifies you as a Supreme Court expert. Answers are at the end.

1. "I know it when I see it."

2. "If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

3. "A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens."

4. "John, who the hell is … the guy dressed like a clown?"

5. "Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, ‘uncontradicted’ legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."

6. "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

7. "Yes, two, and they are both sitting on the Supreme Court."

8. "The life of the law has not been logic; it has been experience."

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Barbarians on the Bench?

by Stuart Taylor, Jr.

National Journal

At the Supreme Court, the right-wingers are always up to no good, and almost always in charge. Or so it seems to the sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times‘ editorial page.

A new wrinkle in this summer’s assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens. Beyond that, even Barack Obama, who has one of the most liberal voting records in the Senate, was somehow seduced into siding with conservative Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts in two big cases.

To explain, let’s examine a July 3 Times editorial, "A Supreme Court on the Brink." It began by lamenting "highly conservative rulings on subjects like voting rights and gun control"; the former showed that the Court had "abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter-ID law," and the latter will add to gun violence by recognizing a right to keep guns for self-defense at home. The editorial went on to decry the "cold-hearted decision" allowing Kentucky to use a particular lethal injection method to execute capital murderers and the decision reducing to a $500 million "pittance" the $2.5 billion punitive damages award against ExxonMobil for the 1989 Exxon Valdez oil spill. The main bright spots, the editorial noted, were the Court’s "third rebuke to the Bush administration on Guantanamo" and the decision striking down the six state laws that made the most vicious rapists of children eligible for the death penalty.

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Opening Argument – Is Judicial Review Obsolete?

by Stuart Taylor, Jr

National Journal

The big decision on June 26 that the Second Amendment protects an individual right to keep a loaded handgun for self-defense at home is the high-water mark of the "original meaning" approach to constitutional interpretation championed by Justice Antonin Scalia and many other conservatives. At the same time, the decision may show "originalism" to be a false promise.

Scalia’s 64-page opinion for the five-justice majority was a tour de force of originalist analysis. With-out pausing to ask whether gun rights is good policy, Scalia parsed the Second Amendment’s 27 words one by one while consulting 18th-century dictionaries, early American history, the 1689 English Bill of Rights, 19th-century treatises, and other historical material.

And even the lead dissent for the Court’s four liberals–who are accustomed to deep-sixing original meaning on issues ranging from the death penalty to abortion, gay rights, and many others–all but conceded that this case should turn mainly on the original meaning of the 217-year-old Second Amendment. They had little choice, given the unusual absence of binding precedent.

But in another sense, District of Columbia v. Heller belies the two great advantages that originalism has been touted as having over the liberals’ "living Constitution" approach. Originalism is supposed to supply first principles that will prevent justices from merely voting their policy preferences and to foster what Judge Robert Bork once called "deference to democratic choice." But the gun case suggests that originalism does neither.

First, even though all nine justices claimed to be following original meaning, they split angrily along liberal-conservative lines perfectly matching their apparent policy preferences, with the four conservatives (plus swing-voting Anthony Kennedy) voting for gun rights and the four liberals against.

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Opening Argument – Our Leaders Are Not War Criminals

by Stuart Taylor, Jr

National Journal

Almost 60 House liberals, along with prominent lawyers, journalists, and retired officials and military officers, are lobbing an inflammatory charge–"war crimes"–toward a large number of the Bush administration’s most senior current and former officials and lawyers. These critics accuse them of approving torture and other illegal interrogation methods.

We are likely to hear a growing clamor for appointment of a special prosecutor, presumably by the next administration. And human-rights activists are already suggesting that their friends abroad should snatch and prosecute any former members of what they call the Bush "torture team" who dare visit Europe.

These critics are right to denounce waterboarding and some other interrogation methods that were approved at the administration’s highest levels as abusive, deeply damaging to the nation’s traditions and international standing, arguably torture, and profoundly unwise. Critics also make a strong case that under the Supreme Court’s broad interpretation of the Geneva Conventions two years ago in Hamdan v. Rumsfeld, the harsher methods violated international law.

But the critics are deeply misguided to call for criminal investigations of people who did their best to protect the country in dire times. The process would ruin lives and tear the country apart. And there is no evidence that any high-level official or lawyer acted with criminal intent.

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Opening Argument – Bush and the Justices Behaved Badly

by Stuart Taylor, Jr

National Journal

Our Constitution works best when its custodians–the president, Congress, and the judiciary–behave well. In the matter of suspected "enemy combatants," all three have behaved badly. That’s why the Guantanamo Bay prison camp has been such a running sore. Even if Guantanamo ends up being closed, the human-rights and public-relations debacles that it symbolizes will continue until a new president and Congress take a grown-up approach to some extremely thorny problems.

Problems such as: What should we do with a Guantanamo detainee who, the best available evidence suggests, is probably a jihadist bent on mass murder but who cannot be convicted of any crime?

Don’t hold your breath waiting for a clear answer from the Supreme Court, which has asserted its supremacy in such matters–while raising more questions than it has resolved–in three cases, culminating in its big 5-4 ruling on June 12 that Guantanamo detainees have a right to broad federal judicial review of their petitions for release.

The Bush administration has perpetuated a global scandal since 2002 by stubbornly refusing to provide these detainees–who could be locked up for life–with a fair opportunity to prove that they are innocents seized and held by mistake. Bush and a few of his top political appointees imposed these policies over objections from many of the military lawyers and other professionals whose expertise ordinarily helps shape presidential decisions and helps entitle them to judicial deference.

(I will discuss the related scandal of brutal interrogations in a future column.)

Congress, after years of passive abdication, partly ratified the administration’s detention policy and sought to overrule contrary Supreme Court decisions in two laws that Republicans rammed through with little deliberation in late 2005 and October 2006.

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Gay Marriage by Judicial Decree

by Stuart Taylor, Jr.

National Journal

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married."

So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.

First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

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Lawsuits That Benefit Only Lawyers

by Stuart Taylor, Jr.

National Journal

Now and then events converge to remind us of how often plaintiffs’ lawyers pervert our lawsuit industry for personal and political gain, under the indulgent eyes of judges, without rectifying any injustices, at the expense of the rest of us.

We have recently witnessed the spectacle of three of the nation’s richest and most famous plaintiffs’ lawyers heading to federal prison for various criminal frauds. More on them later. First, let’s consider an especially egregious case that the Supreme Court allowed on May 12, for lack of a quorum, to move ahead in lower federal courts. These consolidated lawsuits, which are seeking more than $400 billion from companies that did business in South Africa during apartheid, score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

A weakly reasoned federal Appeals Court decision in the apartheid case has the additional defects of thumbing its nose at the Supreme Court and insulting the current, democratically elected government of South Africa, which is led by victims of apartheid.

American Isuzu Motors v. Ntsebeza is a class action purporting to represent all of the more than 20 million black South Africans who were held down by the brutal apartheid regime between 1948 and 1994. The claimed $400 billion would come from more than 50 of the big American and multinational companies that usually end up in the dock when plaintiffs’ attorneys are looking for deep pockets to pick.

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Voters: Racism Is Not the Problem

by Stuart Taylor, Jr.

National Journal

Is Barack Obama–now closer than ever to winning the Democratic nomination–nonetheless at a political disadvantage because of white racism, or "racial fears," or "race-baiting," or racial "double standards," as some commentators have suggested?

The evidence indicates otherwise, as it pertains both to this election and more broadly to the perennial tendency of many in the racial-grievance groups, the media, and academia to exaggerate how much white racism remains and its impact on African-Americans.

But many of the voters who have been unfairly tarred as racist do have a different flaw that Hillary Rodham Clinton and John McCain are working especially hard to exploit: ignorance of elementary economics and other things every high school graduate should know, which accounts for the low quality of the debate on issues ranging from the gas tax to trade to the budget.

More on voter ignorance later. First, let’s examine the notion that white racism, or efforts to fan it, underlie Obama’s recent difficulties in winning over middle-class white voters.

"It is an injustice, a legacy of the racist threads of this nation’s history," The New York Times declared in an April 30 editorial, that Obama was so widely called upon to repudiate the Rev. Jeremiah Wright while the media have given much less attention to McCain’s courtship of an equally bigoted white, far-right Texas pastor named John Hagee. The editorial pre-emptively condemned as "race-baiting" any campaign ads showing Wright in action. Times columnist Frank Rich and PBS commentator Bill Moyers voiced similar complaints. And Steve Kornacki wrote in the April 29 New York Observer that Wright was being and will be "used to stoke racial fears and prejudices about Mr. Obama."

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Interrogation: Fixing the Law

by Stuart Taylor, Jr.

National Journal

Amid the new round of headlines about the Bush administration’s use of extremely harsh methods–some say torture–to interrogate suspected terrorists, the most important question is getting the least attention.

That question is how we should revise our laws to govern future interrogations, especially those of newly captured terrorism suspects who seem especially likely to have potentially lifesaving information.

Debate currently focuses on whether evidence obtained through highly coercive methods should be used in military commission trials of those accused of being Qaeda leaders,

and whether President Bush and his top national security aides should be investigated for war crimes for approving those methods.

My answer is no to both questions. But looking forward, the key to a decent, effective, democratically legitimate interrogation policy is for policy makers and citizens to think hard about an agonizing choice.

What would we want done the next time the CIA catches someone such as Khalid Shaikh Mohammed (KSM, in official shorthand)? There is no good answer. But we should be able to improve on the disastrous legacy of Bush, whose presidency brought us the horrors of Abu Ghraib and the "renditions" of at least two wrongly suspected men to be tortured in Syria and Afghanistan.

The March 2003 capture of KSM in Pakistan was as close to the hypothetical "ticking bomb" situation as we have come in the real world. Although the CIA did not know of any imminent threat, it did know that KSM was the architect of the 9/11 attacks and was Al Qaeda’s chief of operations. As such, he probably knew more than anyone else alive about any planned attacks and where to find other key terrorists.