Category Archives: Newsweek

Stuart Taylor, Jr.’s Newsweek media appearances.

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The End of Restraint

by Stuart Taylor, Jr.

Newsweek

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…

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The View From 1987

by Stuart Taylor, Jr.

Newsweek

His name has become a verb, one so crisp and eloquent that it was added to the Oxford English Dictionary: if you’ve been blocked from appointment to public office, you’ve been "borked." The term’s namesake is Robert Bork, whose path to the Supreme Court was derailed in 1…

His name has become a verb, one so crisp and eloquent that it was added to the Oxford English Dictionary: if you’ve been blocked from appointment to public office, you’ve been "borked." The term’s namesake is Robert Bork, whose path to the Supreme Court was derailed in 1987 by a hostile Senate. As Sonia Sotomayor braces for the same firing line, Bork, 82, sat down with NEWSWEEK for a rare interview. Excerpts:

His name has become a verb, one so crisp and eloquent that it was added to the Oxford English Dictionary: if you’ve been blocked from appointment to public office, you’ve been "borked." The term’s namesake is Robert Bork, whose path to the Supreme Court was derailed in 1987 by a hostile Senate. As Sonia Sotomayor braces for the same firing line, Bork, 82, sat down with NEWSWEEK for a rare interview. Excerpts:

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The Long Arm of the Law

by Stuart Taylor, Jr.

Newsweek

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken to their logical extreme-they could erode American democracy and sovereignty.Koh is "all about depriving Amer

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken to their logical extreme-they could erode American democracy and sovereignty.

Koh is "all about depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites," says Edward Whelan, a lawyer and head of the Ethics and Public Policy Center, a conservative Washington policy group. Whelan’s tone is alarmist, but he raises legitimate questions. Koh is well within the mainstream of the academic establishment at elite law schools like Yale-but the mainstream runs pretty far to the left. At his confirmation hearings, Koh, who is in "no comment" mode until then, will find himself defending some statements that irk centrists and conservatives.

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A Tough Choice Draws Nearer

by Stuart Taylor, Jr.

Newsweek

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Ginsburg, 75, has no app…

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

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Obama’s Cheney Dilemma

by Stuart Taylor, Jr.

Newsweek

Dick Cheney, who will step down as vice president on Jan. 20, has been widely portrayed as a creature of the dark side, a monstrous figure who trampled on the Constitution to wage war against all foes, real and imagined. Barack Obama was elected partly to cleanse the temple of the Bush-Cheney stain, and in his campaign speeches he promised to reverse Cheney’s efforts to seize power for the White House in the war on terror.It may not be so simple. At a retirement ceremony recently for a top-lev

Dick Cheney, who will step down as vice president on Jan. 20, has been widely portrayed as a creature of the dark side, a monstrous figure who trampled on the Constitution to wage war against all foes, real and imagined. Barack Obama was elected partly to cleanse the temple of the Bush-Cheney stain, and in his campaign speeches he promised to reverse Cheney’s efforts to seize power for the White House in the war on terror.

It may not be so simple. At a retirement ceremony recently for a top-level intelligence official, the senior spooks in the room gave each other high-fives. They were celebrating the fact that terrorists have not attacked the United States since 9/11. In the view of many intelligence professionals, the get-tough measures encouraged or permitted by George W. Bush’s administration-including "waterboarding" self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed-kept America safe. Cheney himself has been underscoring the point in a round of farewell interviews. "If I had advice to give it would be, before you start to implement your campaign rhetoric, you need to sit down and find out precisely what it is we did and how we did it, because it is going to be vital to keeping the nation safe and secure in the years ahead," he told CBS Radio.

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Obama’s 250 Tough Calls

by Stuart Taylor, Jr.

Newsweek

What should Barack Obama do with the 250 men who are still locked up in the Guantánamo Bay prison camp? Of the many problems the new president will face, this is one of the most difficult, and one he must get right. Along with it, he must answer equally tough questions about how his administration will deal with suspected terrorists in the future: Where will they be held and what legal rights will they have? Which interrogation methods will President Obama allow-and which will he forbid?He ma

What should Barack Obama do with the 250 men who are still locked up in the Guantánamo Bay prison camp? Of the many problems the new president will face, this is one of the most difficult, and one he must get right. Along with it, he must answer equally tough questions about how his administration will deal with suspected terrorists in the future: Where will they be held and what legal rights will they have? Which interrogation methods will President Obama allow-and which will he forbid?

He made some of the answers to these questions clear in his campaign promises, and he would be wise to announce his intentions on or before Inauguration Day. Obama should and probably will renounce all brutal interrogation methods, not just those that the Bush administration defines as torture. He should and probably will discontinue or overhaul the widely derided and largely failed system of "military commissions" that President Bush created in 2001 to try suspected terrorists for war crimes. And he should and probably will announce a detailed plan to close Guantánamo, possibly within a year.

In my view, that plan should include promptly appointing a bipartisan,…

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Recent Supreme Court Decisions Show:

by Stuart Taylor, Jr.

Newsweek

Justice John Paul Stevens, the 88-year-old dean of the Supreme Court’s liberal bloc, is a gentleman of the old school. So it carried a special bite when he read from the bench late last month an unusually bitter dissent, castigating the conservative majority. He fumed against an unprecedented decision striking down a Washington, D.C., gun-control law. The conservatives had argued that the 217-year-old Second Amendment, which speaks of the necessity of a “well-regulated militia” and “the right of the people to keep and bear arms,” protects an individual’s right to keep a loaded handgun at home. Stevens assailed the decision as a betrayal of the conservatives’ long-professed devotion to “judicial restraint” and to the Constitution’s “original intent.” Joined by the other three liberals, he accused the majority of casting aside “settled law” and plunging into the “political thicket.”

Justice Antonin Scalia returned fire. Scalia spoke scornfully of the liberals’ analysis of the Second Amendment’s language and history–so scornfully as to imply that it must be a cover for an anti-gun political agenda. Speaking for the four conservatives and centrist Anthony Kennedy, Scalia accused the dissenters of judicial opportunism: the liberals were seeking to “pronounce the Second Amendment extinct,” he said. Scalia dismissed as “particularly wrongheaded” their reliance on a 1939 precedent; slammed as “bizarre” their parsing of the amendment’s language; whacked as “wholly unsupported” their discussion of English history, and said that Stevens “flatly misreads the historical record” of the Framers’ era.

The two blocs came close to calling each other hypocrites. Are they?

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Overplaying Its Hand

by Stuart Taylor, Jr.

Newsweek

When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had

When it comes to national security-fighting wars and defending the nation-the courts have long deferred to the president and Congress. After 9/11, the Bush administration counted on judges staying out of the way as it figured out what to do with suspects rounded up in the War on Terror. The administration built a prison at the U.S. Navy base at Guantánamo Bay, Cuba, because it was secure, but also because administration lawyers figured (and legal precedents suggested) that American courts had no power to meddle there. Just as the true believers in the Bush White House have done so often, they overreached.

As Charles Fried, solicitor general in the Reagan administration, has reportedly put it, the Bush administration "badly overplayed a winning hand." Bush and his advisers so flouted ordinary, and old, ideas of justice and liberty that they put the Supreme Court in an impossible position: either rubber-stamp denials of due process to detainees who say they were seized by mistake, or step in and create a new set of problems by making rules on a slow, messy, case-by-case basis. In effect, that’s what happened last week when the court ruled in Boumediene v. Bush. If ever there was proof of the adage "hard cases make bad law," this is it.

Historicall…

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The Power Broker

by Stuart Taylor, Jr.

Newsweek

In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself wi

In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it’s obvious that Kennedy holds the balance of power.

Kennedy is known for examining his conscience as well as the law books when he decides a difficult case. And justices caught in the middle of fierce ideological disputes sometimes agonize or brood over their opinions. But sitting with a NEWSWEEK reporter in his chambers overlooking the U.S. Capitol on the day after the court’s final decision of the 2006-07 term, Kennedy seemed cheerful, even enthusiastic, about his role. True, "the cases this year were more difficult than I thought they would be," he said. In closely divided cases when time is short, he added, the court’s "tone becomes somewhat more acrimonious." But he laughed and held up his hands and said, "Hey, I’m a lawyer. I’m trained to argue. I love it."

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A Court Divided

by Stuart Taylor, Jr.

Newsweek

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Educ

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Education established. Breyer added that the position of the four most-conservative justices "would break that promise."