Tag Archives: Judicial Philosophy

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NewsHour: The Future of the Supreme Court – July 13, 2000

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MARGARET WARNER: Two weeks ago, the Supreme Court term ended with a burst of decisions on hot-button issues ranging from abortion to school prayer to whether the Boy Scouts could expel a gay scoutmaster. The fact that many of these cases were decided by a 5-4 vote prompted a flood of articles and editorials on how the outcome of this year’s presidential race could alter the balance on the court.

What’s more, both liberal and conservative groups are now trying to energize their supporters by arguing that this election could reshape the court for decades to come. For our own discussion of what’s at stake for the court in this Presidential campaign, we turn to Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and author of last week’s Newsweek cover story on this issue; Anthony Lewis, a columnist with the New York Times; C. Boyden Gray, former White House counsel in the Bush administration, now in private practice in Washington; and Ralph Neas, People for the American Way and author of a 75-page report on this topic called "Courting Disaster."

Welcome, gentlemen. Ralph Neas, in this report, you wrote that the court is just one or two votes away from can your tailing fundamental rights that millions of Americans take for granted. Is there really that much at stake in this election?

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The Supremes In The Dock

by Stuart Taylor, Jr.

Newsweek

It has become a familiar pattern. When the Supreme Court ruled last week that cities and states can ban nude dancing in clubs, the vote was close (6-3), and the conservatives won. And when the Supreme Court knocked down the White House’s hard-nosed efforts to regulate the tobacco industry last month, the justices were even more closely divided (5-4) – conservatives against liberals. In recent months, that 5-4 split has allowed the court’s conservatives to narrowly prevail in cases limiting the rights of defendants facing the death penalty, making it easier for police to stop people who flee when approached and restricting the federal government’s power to make states draw election districts that benefit black or Hispanic candidates.

That tenuous balance of power may soon change. The 5-4 split that has defined the court in recent years could be altered with the replacement of a single justice. And since it seems likely that one or more justices will retire in the coming four years, the next president may have the rare opportunity to sharply tip the court’s scales to the right or left, perhaps for decades to come. Until recently, the Supremes have remained a sleeper issue in the presidential race. But as the sparring intensifies, the battle over the future of the court could emerge as one of the most hotly contested issues of the campaign.

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Why The Story Matters

by Stuart Taylor, Jr.

Newsweek

The most important cocaine question for George W. Bush is this: would you seek long prison terms for today’s 18-year-olds for doing what you say you may or may not have done as a young man–and when you now suggest that whatever you did was a mere youthful indiscretion, and thus irrelevant to your candidacy?

Countless thousands of people are rotting in prisons all across America–many in Texas–for being caught with small amounts of cocaine or crack, its smokable variant. Many were only peripherally involved in drug sales. Some were mere users. As governor of Texas, Bush–like most other politicians in both parties–has joined in this orgy of punishment with enthusiasm, signing laws that toughen penalties for drug users as well as pushers, and that send juveniles as young as 14 to prison for especially serious crimes, including some drug crimes.

How can he square this with his position that whether he used drugs is irrelevant to his candidacy? If Bush won’t tell us whether he used cocaine or other illegal drugs in his first 28 years–and there’s no evidence that he did–he should at least tell us whether his admitted but unspecified “young and irresponsible” escapades would have landed him in prison had the drug laws he supports been enforced against him.

In 1997 Bush signed a measure authorizing judges to give jail time to people convicted of possessing (or selling) less than one gram (one twenty-eighth of an ounce) of cocaine. Texas sentencing guidelines had previously prescribed mandatory probation for such small quantities. And in 1995, Bush pushed through the new law expanding the list of crimes for which juveniles as young as 14 (down from 15) can be tried and imprisoned as adults.

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NewsHour: A Look at the Chief Justice – January 13, 1999

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MARGARET WARNER: Stuart, what else do we need to know about this man that you think will affect how we conduct this trial?

STUART TAYLOR: Well, you cover it pretty well. I think the top of it is – he’s a very smart man – he’s no nonsense – as Jeff recently wrote in the New Yorker. He runs a poker game that includes some interesting players, and the idea is let’s play the poker, no nonsense. The one quibble I might have with what we just heard was the word "stern task master." Yes, he runs the court on tight schedule but he is liked and regarded as very fair in dealing with that by his colleagues.

I well remember Justice William Brennan, the late justice, one of the great liberals and the polar opposite ideologically of Rehnquist. I went to him after a bitterly, bitterly divided partisan ideological debate that led to Rehnquist’s confirmation as chief justice in 1986, and I asked Justice Brennan, what do you think of it? "I’m just delighted. He’s such a wonderful guy. He’ll be fair." Now, Brennan wasn’t particularly going to miswarrant Berger either. That might have been part of it. But I think he’s in a very different forum than he’s ever been in before because although when he brings down the gavel in the court and says counsel, your time is up, they salute, and they march away, and the other justices don’t challenge him on things like that. But in the Senate he can be overruled by 51 Senators on anything he does. And the most interesting thing for me watching him will be this. Will he try and set an aggressive tone in ruling, for example, if somebody wants censure, if there’s an argument over what evidence should come in, will he say in a clear and forceful way, well, here’s what I think and hope they don’t overrule him at the risk of

(a) being repeatedly overruled or

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NewsHour: Justice Brennan Remembered – July 24, 1997

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JIM LEHRER: Retired Supreme Court Justice William Brennan. He died today at the age of 91. Joshua Rosenkrantz clerked for Justice Brennan. He’s now the executive director of the Brennan Center for Justice at New York University’s School of Law. Douglas Kmiec was an assistant attorney general during the Reagan administration; he now teaches law at the University of Notre Dame. And NewsHour regular Stuart Taylor; he covers the Supreme Court for the American Lawyer and Legal Times. Mr. Rosenkrantz, how will you remember Justice Brennan?

JOSHUA ROSENKRANTZ, New York University Law School: I’ll remember him first and foremost as an extraordinarily wonderful human being who just cared so much about everyone who crossed his path, and secondarily as one of the most profound movers in our history, certainly in this century, on the Supreme Court.

JIM LEHRER: Stuart, one of the most profound movers in this century on the U.S. Supreme Court?

STUART TAYLOR, The American Lawyer: I think he was that. He’s widely credited, including by Justice Antonin Scalia, his philosophical opposite, as being the most influential justice of this century and one of the most in history, but that’s not what I suppose I’ll remember him for the most. I was in the–like many of my colleagues–was privileged to visit with him in his chambers. And I’ll remember him as perhaps the most lovable, likeable, charming, humble, delightful, very important person I’ve ever encountered. I remember him saying things like "When you get this damn job, my, nothing you’ve ever done prepares you for it;" things like, I’ve been excited and thrilled every day since I got here, and I’ll be excited and thrilled every day until I leave, things like, see, I didn’t really settle into the liberal mold until I’d been here a few years. I had some surprises. He was–

JIM LEHRER: In other words, he talked like a real person.

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Compassion Breeding Hubris

by Stuart Taylor, Jr.

About 3 a.m. one night last April, after reading the two federal appellate decisions creating a new right to assisted suicide, and being pulled one way by concerns about judicial imperialism, and the other way by heart-rending anecdotes of people dying in excruciating pain-or blowing their brains out or jumping off bridges-because they lacked the more humane option of lethal medication, I settled on an ingenious solution.

It was a "constitutional remand," proposed by Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit, in his concurrence in one of the cases now before the Supreme Court. (That case, Vacco v. Quill, and the case of Washington v. Glucksberg, in which the 9th Circuit struck down another statute barring assisted suicide, were argued Jan. 8.)

Judge Calabresi’s idea was to hold New York’s long-standing ban on assisting suicide to be semi-unconstitutional as applied to physicians who honor requests for lethal medication by mentally competent patients in the last stages of terminal illness.

Because the statute seemed anachronistic, and at least "close to violating" substantive due process or equal protection, Calabresi said, the court should strike it down for now, but should reserve the possibility of upholding a similar (or even identical) law if the legislature were to re-enact it while articulating persuasive policy justifications.

"That makes sense to me, at least at first blush," I concluded ("Life, Death, and Imperial Judges," April 15, 1996, Page 23). At second blush, it doesn’t make sense. Rather, it seems clear that the Supreme Court should uphold the long-standing line against assisted suicide, as most of the justices seem inclined to do.

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A Futile Balancing Act

by Stuart Taylor, Jr.

When Robert Bork agrees with Laurence Tribe, and with just about every other law professor and mainstream economist in the land, and with President Bill Clinton; and when the editorial page of The Wall Street Journal is in sync with those of The New York Times and The Washington Post, and when they are all united against something, it’s awfully tempting to be for it.

The push for a balanced budget amendment to the Constitution is what they all oppose- intermittently, in the president’s case.

And so I’d like to be for it. I’d like to agree with literal sage Michael Kinsley, whose contrarian side wrote in 1992 (and still believes) that it’s time to "call this hoary Republican bluff," because "the nation’s deficit addiction must… be cured." I’d also like to agree with conservative sage James Q. Wilson, a "reluctant convert" who last year called the balanced budget amendment "a bad idea whose time has come," and a necessary cure for the public’s "free-lunch mentality."

I’d like to agree, but I can’t quite get there.

That’s because the more you look at the various proposed formulations of the balanced budget amendment-which came close to passing Congress in 1995 and will have more support in the newly elected Congress-the more clear it becomes that (in Bork’s words) this "cure seems likely to be either ineffective or damaging, or both."

In addition, the view that the voters are hopelessly addicted to mortgaging our children’s future-through reckless deficit spending from which we can save ourselves only by amending the Constitution-is a bit less convincing now than it was a few years ago.

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The Court at the Crossroads

by Stuart Taylor, Jr.

While you would hardly know it from the tenor of the campaign, this year’s presidential election could have a far more dramatic impact than most on the political-philosophical orientation of the Supreme Court, and thus on the direction of constitutional law.

That’s because the Court is now so closely divided on such vital Issues that the replacement of one of the conservative justices with a liberal, or vice versa, could make an enormous difference-above all, on questions of race, congressional power, and states’ rights.

For this reason, the next confirmation battle could well be reminiscent of the 1987 donnybrook over Robert Bork. The stakes were high then mainly because the pivotal justice whom Bork would have replaced, Lewis Powell Jr., had sided with liberal majorities in so many critical 5-4 decisions.

Of course, it’s entirely possible that all nine justices will stay on for four more years, or that any who step down will be replaced with people of similar orientation. But two scenarios could bring epochal change:

Scenario 1: Bob Dole wins; a liberal retires (most likely 76-year-old Justice John Paul Stevens, the Court’s oldest and most liberal member); Dole replaces him with a conservative; and suddenly we have the most conservative Court in modern history.

Scenario 2: President Clinton wins (as seems far more probable); a conservative retires (most likely 72-year-old Chief Justice William Rehnquist); the president replaces him (or elevates Justice Ruth Bader Ginsburg and then replaces her) with a liberal or moderate liberal; and suddenly we have the most liberal Court since (at least) Earl Warren.

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Life, Death, and Imperial Judges

by Stuart Taylor, Jr.

As I started to read the recent rulings of two U.S. Courts of Appeals discovering that terminally ill patients have a constitutional right to kill themselves with lethal drugs prescribed by any willing physician, I was reminded of Judge Learned Hand’s line about "Platonic Guardians."

I looked it up: "Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies," Hand wrote in 1958. "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Some of the nation’s best minds think that a legal rule authorizing physician-assisted suicide "erases a fundamental ethical line and opens medical practice to unconscionable abuse," in the words of the columnist (and lapsed psychiatrist) Charles Krauthammer. He adds that any such rule would open the way for intolerable pressure from self-interested relatives and others for "the elderly and infirm to take drugs to hasten death."

On the other side, some of the nation’s best minds stress that thousands of suffering patients desperately want and need the kind of help in hastening the end that-under current law-some doctors cannot provide, and others will provide only in secrecy, for fear of being prosecuted as criminals.

It is an agonizing public policy dilemma, and one of vast importance. Both elite and popular values on the subject are evolving at warp speed, as one ethical line in the sand after another is washed away by racing medical technology and soaring medical costs, and as ever more diabolical choices are inflicted on us all.

So why should the ultimate decision on this matter come from a bunch of judges, in the guise of divining some fixed meaning for all time from a 128-year-old amendment that has nothing explicit to say about any "right to die"?

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Looking Right at the Justices

by Stuart Taylor, Jr.

"Conservatives on Supreme Court Dominated Rulings of Latest Term." "High Court Rulings Hint Move to Right." "The Year the Court Turned to the Right." "The Conservative Majority Solidifies."

If these remind you of the headlines you were reading about three months ago, think again. They were actually taken from end-of-term wrapup pieces in The New York Times in 1984, 1988 (I wrote that one), 1989, and 1991, respectively. Go back to 1972, and you’ll probably find something similar.

So the headline on the July 2, 1995, New York Times wrapup-"Farewell to the Old Order on the Court: The Right Goes Activist and the Center Is a Void"-was not exactly unprecedented.

Nor were those on the 1995 wrapup pieces in The Washington Post ("Court’s Conservatives Make Presence Felt"), USA Today ("High court makes ‘dramatic’ shift: Fall schedule will test court’s conservatism"), and The Los Angeles Times ("1995 Rulings by Supreme Court Herald Dawn of Rehnquist Era").

The journalistic consensus, it appears, is not only that the Court is Turning Right, to borrow the title of Los Angeles Times correspondent David Savage’s fine 1992 book on the Rehnquist Court, but that it has been turning right for a long time, harder and harder as time passes.