Tag Archives: Supreme Court

Posted on

Opening Argument – The Supreme Court: Place Your Bets

by Stuart Taylor, Jr.

National Journal

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

Posted on

The Supreme Court: Place Your Bets

by Stuart Taylor, Jr

The Atlantic

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

Posted on

Opening Argument – A Different Way to Integrate Schools

by Stuart Taylor, Jr.

National Journal

Is the Supreme Court about to kill all hope of racially integrating public schools? You might think so, based on the reactions of civil-rights groups, editorial writers, and others to two cases argued before the justices on Monday. They involve programs adopted by school boards in the Louisville, Ky., area and Seattle to promote racial balance in their schools despite segregated housing patterns.

The five more-conservative justices seem poised to strike down both of these plans and to ban — or severely restrict — consideration of any student’s race in deciding what school he or she may attend. But the news is not all bad for those of us who share the four liberal justices’ sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.

There is another — perhaps better — way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students’ socioeconomic status in making school assignments and to give underprivileged students — who are disproportionately black or Hispanic — the opportunity to attend middle-class schools.

Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.

Posted on

Opening Argument – Global Warming: Time for a Court Order

by Stuart Taylor, Jr.

National Journal

The Supreme Court seemed split 4-4, with Justice Anthony Kennedy on the fence, during spirited arguments on Wednesday in a potentially momentous case on global warming. Memo to Kennedy’s law clerks: The justices should order the Bush administration to come to grips with the need to curb the emissions of carbon dioxide and other greenhouse gases that contribute to what could become catastrophic climate change.

This is not to deny that curbs on emissions might be futile and thus wasteful. The costs of achieving major reductions in the near term might be prohibitive. Meanwhile, soaring greenhouse-gas emissions in China, India, and other rapidly industrializing countries could swamp any government-mandated cuts in America.

But consider the alternative. If the government keeps temporizing on this issue, we may eventually see coastal cities under water, glaciers gone, arable lands turned into desert, massive extinctions of animal and plant species, more killer storms, and other disasters. More to the point for the justices, the Environmental Protection Agency’s head-in-the-sand, we-don’t-want-to-know posture about the dangers of global warming violates the Clean Air Act.

The Court need not decide how grave the danger is, how much should be invested in reducing emissions, or even whether EPA should regulate them at all. It need only require the agency to take its head out of the sand. Specifically, the plaintiffs — Massachusetts, 11 other states, some cities, and others — ask only that the justices order EPA to make an official, yes-or-no finding, after formal consideration, that answers this question: Are greenhouse gases a kind of air pollution that, by contributing to climate change, may — in the words of the Clean Air Act — "reasonably be anticipated to endanger public health or welfare"?

Posted on

NewsHour: Analysis – Legal Experts Review High Court – July 3, 2006

by

MARGARET WARNER: It was the Supreme Court’s inaugural term under Chief Justice John Roberts, the first new chief in two decades. The blockbuster ruling of this term, involving presidential power in time of war, didn’t emerge until the final day last week.

But, before then, the court issued 68 decisions on legal controversies, ranging from political redistricting to physician-assisted suicide, and from the death penalty and other criminal law matters to military recruitment on college campuses. The term was notable, too, for the midway replacement of Justice Sandra Day O’Connor by new justice Samuel Alito.

We assess the term now with four longtime court watchers: in California, Douglas Kmiec, a professor of constitutional law at Pepperdine University Law School; and Kathleen Sullivan, director of the Constitutional Law Center at Stanford University and former dean of its law school; and, here in Washington: Stuart Taylor, a columnist for The Legal Times and senior writer for "National Journal" magazine; and Jeffrey Rosen, a law professor at George Washington University and legal affairs editor at "The New Republic," and, I should say, author of a new book as well about the courts.

Welcome to you all.

If this is the beginning of the Roberts’ era, Kathleen Sullivan, to what degree did he put a distinctive stamp on this court?

KATHLEEN SULLIVAN, Constitutional Law Center Director, Stanford University: Margaret, the term this year is best described as the Roberts conservative court in waiting. He was unable to put a clear stamp on the court in any new direction.

And let’s make no mistake about it. Chief Justice Roberts and Justice Alito are very conservative. Justice Alito voted with the conservative bloc 15 percent more of the time than Justice O’Connor, whom he replaced.

Posted on

Opening Argument – Supreme Confusion

by Stuart Taylor, Jr.

National Journal

"KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II — A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C.J., and ALITO, J., joined, an opinion with respect to Parts II — B and II — C, and an opinion with respect to Part II — D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C.J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C.J., and ALITO, J., joined as to Part III."

Thus concludes the nine-page summary ("syllabus") of the 132 pages of opinions — six in all, none winning the full assent of more than two justices — of the second big Supreme Court decision this week involving judicial superintendence of the political process.

This was the June 28 decision that rejected, 5-to-sort-of-4, a constitutional challenge to the Texas Legislature’s mid-decade partisan gerrymander of the state’s 32 congressional districts (holding No. 1) while ruling, by a differently constituted 5-to-4, that the Voting Rights Act requires redrawing one district to give it a Hispanic voting-age majority (holding No. 2).

Posted on

Opening Argument – Decommission the Commissions

by Stuart Taylor, Jr.

National Journal

On March 28, the Supreme Court will hear arguments on whether the "military commissions" created by President Bush in November 2001 to prosecute suspected Qaeda terrorists are a time-honored presidential prerogative or (as I have re- luctantly come to believe) another unwise, unconstitutional Bush power-grab.

The legal issues are complex and difficult, and the outcome is hard to predict. What’s already clear beyond dispute, however, is that this supposedly speedy, streamlined system — which took nearly three years to start its first trial — has in practice been a fiasco and an international embarrassment.

Small-fry defendants. Weak evidence. Commission members apparently hand-picked for their likelihood to please their bosses.

Egregious errors by translators. And constantly changing rules, including the last-minute effort to dress up the commissions for their date with the Supreme Court by banning the previously approved use of statements obtained under torture.

The defendant whose case is now before the Court, Salim Ahmed Hamdan, hardly seems to be one of "the most dangerous, best-trained, vicious killers on the face of the earth," as Defense Secretary Donald Rumsfeld has described the Guantanamo detainees. Hamdan admits that he was Osama bin Laden’s chauffeur for several years before his capture in late 2001. But he is charged with only a single count of conspiring to murder civilians, based on allegations so nebulous that a real court might well throw the case out. The government has not even claimed that Hamdan helped plot any terrorist attacks or committed any specific criminal act. Its best evidence seems to be that he drove Qaeda members and weapons around Afghanistan.

Posted on

Opening Argument – In Praise of Judicial Modesty

by Stuart Taylor, Jr.

National Journal

During the hiatus between Supreme Court confirmation battles, we may as well settle the clash between the conservative and liberal approaches to constitutional interpretation. The battle lines are familiar. Conservatives, led by Justices Antonin Scalia and Clarence Thomas, say that the sole legitimate approach is to follow the literal text and original meaning of constitutional provisions and amendments. Justices’ policy preferences should play no role, assert conservative "originalists." But the claim is undercut somewhat by the consistency with which the conservatives’ votes on abortion, religion, race, gay rights, and many other big issues happen to fit their policy preferences.

Liberals and many moderates prefer the "living-Constitution" approach, which has been dominant at least since the Warren Court. It involves using ancient but conveniently vague constitutional phrases to enforce "evolving standards of decency," to promote equality, and to vindicate what sometimes-liberal Justice Anthony Kennedy likes to call "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Not surprisingly, constitutional evolution in the hands of liberals supports liberal policies.

Each school of thought is most persuasive in debunking the other. Justice Stephen Breyer skewers originalism in his 2005 book, Active Liberty: "Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting the Bill of Rights in the centuries to come?"

Posted on

Opening Argument – The Trouble With Texas

by Stuart Taylor, Jr.

National Journal

A dispiriting reality sank in as the Supreme Court worked through two hours of arguments on March 1 about the egregious gerrymander that Tom DeLay helped ram through the Texas Legislature in 2003: The Court has no intention of fixing — and no idea how to fix — the mess that it has made of our politics (with ample help from politicians) over more than four decades. And nobody else seems to have a good idea, either.

This mess is not just in Texas. Nor will it be ameliorated by whatever the Court does in the Texas case. Not even in the highly unlikely event of a decision to strike down the congressional redistricting map that knocked off five Democratic incumbents in 2004, while delivering 21 of Texas’s 32 House seats to Republicans, up from 15 in 2002.

The mess to which I refer is state legislatures’ use of gerrymandering — manipulating election district lines to help or hurt a particular candidate or group — to make 80 to 90 percent of the nation’s 435 House districts so lopsidedly Republican or Democratic that the out party has almost no chance of winning.

The paucity of competitive general elections for House seats, bad enough in itself, has also helped polarize our politics into the bitter liberal-conservative brawling that litters the landscape today. Primaries, dominated by the most fervently partisan voters, are the only real contests. So victory goes to the most liberal of Democrats and the most conservative of Republicans. Moderates, who used to grease the wheels of conciliation and compromise, have almost disappeared.

The polarization that has poisoned the House has also infected the Senate to a lesser extent. Senators run statewide. But many climbed the ladder by being liberal or conservative enough to win in gerrymandered House or state legislative districts.

Posted on

O’Connor’s Rightful Heir?

by Evan Thomas and Stuart Taylor, Jr.

Newsweek

When conservative Washington lawyers who argue before the Supreme Court talk about "the Greenhouse Effect," they don’t mean global warming. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The "effect" is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very strongly held, or even fixed, conservative views, there is a tendency to be seduced by the liberal legal establishment that d

When conservative Washington lawyers who argue before the Supreme Court talk about "the Greenhouse Effect," they don’t mean global warming. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The "effect" is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very strongly held, or even fixed, conservative views, there is a tendency to be seduced by the liberal legal establishment that dominates at elite law schools like Harvard and Yale. Those schools produce a disproportionate number of the law clerks who generally draft opinions for the justices, as well as the sort of professor routinely tapped as a source by Greenhouse, who is regarded as a legal scholar in her own right.

That, at least, is the view of conservatives like U.S. Court of Appeals Judge Laurence Silberman, who popularized the term some years ago. The chief "victim" of the Greenhouse Effect is usually said to be Justice Anthony Kennedy, who has drifted to the left since his appointment …