Category Archives: Newsweek

Stuart Taylor, Jr.’s Newsweek media appearances.

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Supreme Court Sides with Universities and Members of Oversight Board

by Stuart Taylor, Jr.

Newsweek

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.”

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Gun-Rights Decision May Have Limited Impact

by Stuart Taylor, Jr.

Newsweek

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.

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Kagan Won’t – and Shouldn’t – Disclose Views on Issues

by Stuart Taylor, Jr.

Newsweek

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:

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Order on the Court

by Stuart Taylor, Jr.

Newsweek

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.

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Leahy Proposal to Avoid 4-4 Ties: It’s About Timing

by Stuart Taylor, Jr.

Newsweek

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.

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Kagan’s Non-Denial Denial on Gay Marriage

by Stuart Taylor, Jr.

Newsweek

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.”

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Elena Kagan’s ‘Judicial Hero’

by Stuart Taylor, Jr.

Newsweek

In a far-from-conclusive effort to pinpoint Elena Kagan’s place on the ideological spectrum, the media have parsed her Princeton senior thesis, Oxford master’s thesis, law-clerk memos to Justice Thurgood Marshall, subsequent disagreements with him, Clinton White House memos, academic writings, speeches, legal briefs, and more.

But an intriguing clue that is riling up conservative blogs–so far unmentioned in the mainstream media–should somewhat allay liberal fears that Kagan will be a tepid moderate reluctant to advance liberal causes through expansive use of judicial power. The clue is Kagan’s glowing praise in 2006 for Aharon Barak, a world-renowned, retired Israeli Supreme Court justice whose creativity in advancing liberal causes by overturning elected officials’ policies makes Marshall look almost like a champion of judicial restraint. Speaking at a Harvard Law School award ceremony for Barak, then Dean Kagan praised the Israeli jurist as “my judicial hero” and “the judge who has best advanced democracy, human rights, the rule of law, and justice.”

One of America’s best and most nuanced legal minds, Judge Richard Posner, has pointed attention to Barak’s extraordinarily aggressive pattern of sweeping aside the actions of elected officials based on little more than his own policy preferences. In “Enlightened Despot,” an April 2007 New Republic reviewof Barak’s book The Judge in a Democracy, Posner wrote that Barak should be “considered Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.”

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Between a Rock and a Hard Place

by Stuart Taylor, Jr.

Newsweek

It’s a pretty safe bet that the Democratic-ruled Senate will confirm Solicitor General Elena Kagan, President Obama’s Supreme Court nominee, by about Aug. 6, with over 60 votes. But that’s not to deny that many conservatives–and some liberals–will raise passionate complaints that the 50-year-old Kagan is unfit to be a justice. Indeed, they’ve been attacking her for as long as she has been the consensus front-runner for the nomination.

Conservatives and others have pounded especially hard on her efforts to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the exclusion of gays from the military.

Few if any critics doubt that Kagan is extraordinarily intelligent and accomplished, or that she demonstrated great skill as a consensus-builder as dean of Harvard Law School, where she calmed the troubled ideological waters and won the admiration of conservative and liberal colleagues alike, from 2003 through 2008. But critics do claim that Kagan–who spent most of her career as a law professor and Clinton White House official, with very little courtroom experience before becoming Solicitor General–has less experience relevant to being a justice than any nominee in decades. Indeed, unlike all nine current justices, she has no judicial experience at all.

The New York-born Kagan would increase the Court’s domination by establishmentarians who attended Harvard and Yale law schools–six and three justices, respectively–and its remoteness from the struggles of ordinary Americans. But what really animates most critics is hostility to a nominee whom they consider too liberal or too conservative.

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Montana’s States’ Rights Showdown

by Daniel Stone and Stuart Taylor, Jr.

Newsweek

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since Pre…

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn’t give separatists hope: it’s doomed to fail, as will similar rebukes.

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Washington’s Landmark Antigay Case

by Stuart Taylor, Jr.

Newsweek

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.