Category Archives: National Journal

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Opening Argument – Life Tenure Is Too Long For Supreme Court Justices

by Stuart Taylor, Jr.

National Journal

"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…." – U.S. Constitution, Article III, Section 1

That seemed a good idea at the time. The Framers wanted to make the Supreme Court and lower federal courts independent of the political branches and insulate them from popular passions. What better way than to give them life tenure?

James Madison, Alexander Hamilton, and company had little occasion to ponder the possibility that one day most justices would serve longer than your average medieval monarch. The 10 who have retired since 1970 have averaged 25 years on the Court. And if 80-year-old Chief Justice William Rehnquist steps down soon, he will pull the average post-1982 retirement age down a bit.

By contrast, the first 10 justices served an average of under eight years, in part because of the rigors of the "riding circuit" that covered hundreds of miles on horseback. Three left to take other positions. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68.

Thus have modern medicine — and modern justices’ fondness for their power and glory — transformed the meaning of life tenure. This longevity has contributed to some serious problems, according to an ideologically diverse group of 45 leading legal scholars, several of whom are publishing law review articles on the subject. Earlier this year, these scholars agreed "in principle" on a proposal that seems especially timely now: staggered, 18-year term limits for all future justices, to marry judicial independence with more frequent and regular injections of new blood by the president and the Senate.

The problems associated with life tenure are subtle but serious:

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Opening Argument – Liberal Drug Warriors! Conservative Pot-Coddlers!

by Stuart Taylor, Jr.

National Journal

The Supreme Court’s four more-liberal members voted to allow federal prosecution of medical-marijuana users — including cancer patients who grow small quantities at home to alleviate agonizing pain — even in the 11 states that have legalized medical marijuana. So did centrist Justice Anthony Kennedy and conservative Justice Antonin Scalia.

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Opening Argument – The Moderates Take Charge!

by Stuart Taylor, Jr.

National Journal

OK, OK, maybe I’m getting a bit carried away. My dream of a Militant Moderate Caucus (even a third party!) shoving the hard-right Republican and hard-left Democratic leaders to the margins, fixing Social Security and health care, and listening to mainstream voters instead of special-interest screamers remains forlorn. But the bipartisan, May 23 deal among 14 mostly moderate senators to bring some sanity to the judicial confirmation process has promise.

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Cover Story – The Rehnquist Court

by Stuart Taylor, Jr.

National Journal

Justice William Brennan Jr. was in an animated mood, even for him. It was May 27, 1987, toward the end of the Supreme Court’s first term since Justice William Rehnquist’s 1986 promotion to chief justice. The Senate vote had been 65-33, amid bitter attacks — even charges of perjury — from liberal groups.

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Opening Argument – Lloyd Cutler: The Last Superlawyer

by Stuart Taylor, Jr.

National Journal

There will never be another superlawyer on the scale of Lloyd Cutler, who died on May 8 at age 87. This is not to deny the possibility that someone, somewhere may replicate the dazzling array of talents that made Cutler the pre-eminent lawyer-statesman of his generation: intellectual brilliance, wisdom, public-spiritedness, eloquence, genius for grasping the interests of everyone around the table, and passion for forging consensus solutions to hard problems.

But even if more such people walk among us, the political and legal environments that enabled Cutler to be Cutler no longer exist.

This is a man who served every Democratic president since LBJ and every Republican president since Ronald Reagan; who won the trust and friendship of the best and brightest leaders in both major parties; who represented corporate titans and civil-rights groups; who moved effortlessly between private and public sectors; who tackled national problems as diverse as the race riots of the 1960s, the Iranian hostage crisis, the vast, unsecured nuclear stockpiles in Russia, and faulty intelligence on weapons in Iraq.

The snarling partisanship, pervasive mistrust, intellectual shallowness, and TV-driven demagogy that permeate today’s Washington would make it all but impossible for a Lloyd Cutler to work his magic now. He was in his element when steering small groups of serious, moderate-spirited leaders who wanted to make the system work, and who were moved not by flash or fiery rhetoric or poll numbers, but by intellectual rigor. Such leaders have become an endangered species.

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Opening Argument – PATRIOT Act Hysteria Meets Reality

by Stuart Taylor, Jr.

National Journal

"When the Bush administration says it wants to make permanent the freedom-stealing provisions of the PATRIOT Act, they’re telling those of us who believe in privacy, due process, and the right to dissent that it’s time to surrender our freedom."

So screams the first sentence of a recent fundraising letter from the American Civil Liberties Union. This and countless other overheated attacks — from conservative libertarians and gun-rights activists as well as liberal groups — have scared some 375 local governments and five states into passing anti-PATRIOT Act measures, while sending earnest librarians into a panic about Big Brother snooping into library borrowers’ reading habits.

But consider what the ACLU says when it is seeking to be taken seriously by people who know something about the issues: "Most of the voluminous PATRIOT Act is actually unobjectionable from a civil-liberties point of view, and … the law makes important changes that give law enforcement agents the tools they need to protect against terrorist attacks."

That’s right: That was the ACLU talking, in an April 5 press release. To be sure, the release goes on to stress that "a few provisions … unnecessarily trample civil liberties, and must be revised." Well, perhaps. And with 16 provisions of the USA PATRIOT Act scheduled to sunset on December 31, it is surely time to give the entire 342-page, 156-section law the careful scrutiny that it has not received from most of the legislators who passed it in October 2001.

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Opening Argument – What Terri Schiavo’s Case Should Teach Us

by Stuart Taylor, Jr.

National Journal

Right-to-life conservatives and right-to-die liberals have about exhausted their rhetorical arsenals, with the former calling the latter secularist killers and the latter calling the former hypocrites, theocrats, and (gasp) tramplers of states’ rights. Meanwhile, many in the media who gleefully trumpeted how Terri Schiavo’s case had turned rule-of-law conservatives against right-to-lifers have noticed with disappointment that it also had turned disability-rights activists, and liberal lions Jesse Jackson and Sen. Tom Harkin, D-Iowa, against the right-to-die crowd.