Tag Archives: Supreme Court

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Opening Argument – Criminal Injustice and Race

by Stuart Taylor, Jr.

National Journal

It is regrettable that the legend of the "Jena Six" has for many become the leading symbol of the grave injustices to African-Americans that pervade our nation’s penal system. The legend is partly false. And the notion that racism is the main reason for the injustices to hundreds of thousands of black defendants around the nation is entirely false.

To be sure, there is still too much racism among prosecutors, judges, and jurors. But this is far less widespread and virulent, even in Jena, La., than Al Sharpton and Jesse Jackson — the media-anointed (albeit, repeatedly discredited) African-American "leaders" — like to pretend. There are still too many unwarranted prosecutions of innocent minority (and other) defendants, as detailed in my August 4 column, "Innocents in Prison." But the vast majority of those prosecuted are guilty, as may prove to be the case with some or all of the Jena Six.

Rather, the heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.

The Supreme Court heard two cases on October 2 that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people — overwhelmingly, black people — caught with fairly small amounts of crack cocaine.

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Opening Argument – Shortsighted on Judges

by Stuart Taylor, Jr.

National Journal

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

The long-term cost to the country is that bit by bit, almost imperceptibly, more and more of the people who would make the best judges — liberal and conservative alike — are less and less willing to put themselves through the ever-longer, ever-more-harrowing gantlet that the confirmation process has become.

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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."

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Opening Argument – ‘Injustice 5, Justice 4’

by Stuart Taylor, Jr.

National Journal

This headline, borrowed from a New York Times editorial, pretty well sums up the news media’s portrayal of a May 29 Supreme Court ruling that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.

In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.

"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post’s front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority’s analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law … striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union’s charge that this was an "astonishing decision" by an "activist court."

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‘Injustice 5, Justice 4’

by Stuart Taylor, Jr

The Atlantic

This headline, borrowed from a New York Times editorial, pretty well sums up the news media’s portrayal of a May 29 Supreme Court ruling that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.

In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.

"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post‘s front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority’s analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law … striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union’s charge that this was an "astonishing decision" by an "activist court."

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Opening Argument – Terrorism Suspects and the Law

by Stuart Taylor, Jr.

National Journal

What should our government do when it captures a noncitizen suspected of being an Islamist terrorist?

Under the Bush administration’s approach, partly ratified by Congress, such people can be imprisoned indefinitely, perhaps for life, without ever seeing a judge or jury, based on slapdash military hearings with no defense lawyers, no real opportunity to confront the evidence against them — which can be obtained through coercive interrogation — and all-too-cursory judicial review. Some detainees have also been subjected to years of interrogation, including techniques so brutal as to meet many definitions of torture — and, in a few cases, to cause death.

By contrast, under the approach demanded by some human-rights groups, even a captive who is undoubtedly a mass-murdering terrorist must be freed unless the government can prove his guilt beyond a reasonable doubt in an ordinary criminal trial. If the proof would publicly expose secrets so sensitive as to endanger the lives of intelligence sources, that would be the government’s problem. Nor could terrorist masterminds be subjected to even mild discomfort by interrogators seeking to extract life-saving information.

The gulf between these two approaches illustrates the polarization of our political and legal debate on the handling of terrorism suspects. No satisfactory resolution seems likely until at least 2009. Then, perhaps, we may have a new president willing to heed the advice of the more moderate-spirited experts (some named below) who have been thinking through the challenges posed by the hundreds of suspects now held by the military and others who may be captured in the future.

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“Issue Ads” and Common Sense

by Stuart Taylor, Jr

The Atlantic

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election—or both. Seeking to determine which purpose predominates—the focus of the current debate—is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

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Opening Argument – ‘Issue Ads’ and Common Sense

by Stuart Taylor, Jr.

National Journal

Eight Supreme Court justices spent an hour on April 25 arguing with three lawyers and one another about the constitutionality of the federal regulation governing political advertising by nonprofit advocacy corporations. But all nine justices and all three lawyers missed what, I respectfully submit, should be the point of the case. They should be focusing on how Congress rigged the McCain-Feingold campaign finance law to protect its own members from criticism by their constituents.

In a nutshell, the problem with the Court’s approach to the 2002 law’s ban on so-called sham issue ads by nonprofit advocacy corporations is that the justices are focusing on the word "corporations" when they should be focusing on "nonprofit."

A typical issue ad might say something like "tell Senator Jones to stop filibustering judicial nominees," or "tell Senator Jones to vote for reproductive choice." Groups paying to air such ads almost always want the targeted lawmaker to vote as urged or to be defeated in the next election — or both. Seeking to determine which purpose predominates — the focus of the current debate — is a mug’s game.

McCain-Feingold’s ban on such issue ads has been touted as necessary to keep big, bad corporations and labor unions from pouring money into election campaigns. Corporations and unions have long been banned from doing this directly, through contributions to candidates, and should not be allowed to do it indirectly either, the argument goes.

So far, so good. It would distort the democratic process to allow Fortune 500 CEOs and union bosses to spend large sums of stockholders’ and members’ money to support candidates whom the stockholders and members might not choose to support. There is no First Amendment right to spend someone else’s money on electioneering ads.

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Opening Argument – A Right to Keep and Bear Arms?

by Stuart Taylor, Jr.

National Journal

The U.S. Court of Appeals for the District of Columbia Circuit issued the biggest gun control decision in decades on March 9, perhaps setting the stage for the biggest Supreme Court gun control decision ever. Rejecting the views of most other courts, Judge Laurence Silberman held for the 2-1 majority, "The Second Amendment protects an individual right to keep and bear arms" — not just to have guns when needed for service in now-defunct state militias. On this basis, the majority struck down the District of Columbia’s uniquely broad ban against having either a pistol or an operational rifle, even at home for self-defense against intruders.

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.