Tag Archives: Supreme Court

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Queen of the Center

by Evan Thomas and Stuart Taylor, Jr.

Newsweek

For an old ranching girl, you turned out pretty good," President George W. Bush told Sandra Day O’Connor when she spoke to the White House last week to say that she was retiring from the Supreme Court. The image of O’Connor as cowgirl is a powerful one, and she has done as much as anyone to foster it. In her chambers, decorated with Western rugs and paintings and artifacts, she served her clerks homemade Tex-Mex lunches on Saturdays. With her fixed and level gaze, her dry, flat voice cutting l

For an old ranching girl, you turned out pretty good," President George W. Bush told Sandra Day O’Connor when she spoke to the White House last week to say that she was retiring from the Supreme Court. The image of O’Connor as cowgirl is a powerful one, and she has done as much as anyone to foster it. In her chambers, decorated with Western rugs and paintings and artifacts, she served her clerks homemade Tex-Mex lunches on Saturdays. With her fixed and level gaze, her dry, flat voice cutting like the prairie wind, she came across to nervous Supreme Court petitioners like an Annie Oakley of the Bench, a fast draw with sharp questions and a don’t-mess-with-me manner. Her most memorable writing was not the language of her judicial opinions but her memoir of growing up on a ranch, the Lazy B. In her retirement, she will work on a children’s book about her childhood horse, Chico.

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Special Report – Supreme Court Poker

by Stuart Taylor, Jr.

National Journal

The president’s favorite judge had scornfully denounced as "illegitimate" dozens of the "most significant constitutional decisions of the past three decades," as well as others going back to the 1920s. He had excoriated "the modern, activist, liberal Supreme Court" for rulings that recognized rights to abortion, contraception, and other aspects of the "right to privacy"; struck down governmental discrimination against women; outlawed official endorsement of religious symbols; required "one person, one vote"; banned poll taxes; and protected sexually explicit speech.

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Opening Argument – Life Tenure Is Too Long For Supreme Court Justices

by Stuart Taylor, Jr.

National Journal

"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…." – U.S. Constitution, Article III, Section 1

That seemed a good idea at the time. The Framers wanted to make the Supreme Court and lower federal courts independent of the political branches and insulate them from popular passions. What better way than to give them life tenure?

James Madison, Alexander Hamilton, and company had little occasion to ponder the possibility that one day most justices would serve longer than your average medieval monarch. The 10 who have retired since 1970 have averaged 25 years on the Court. And if 80-year-old Chief Justice William Rehnquist steps down soon, he will pull the average post-1982 retirement age down a bit.

By contrast, the first 10 justices served an average of under eight years, in part because of the rigors of the "riding circuit" that covered hundreds of miles on horseback. Three left to take other positions. Only two lived to age 70. The 90 justices who had completed their terms by 1970 retired (on average) after 15 years on the bench, at age 68.

Thus have modern medicine — and modern justices’ fondness for their power and glory — transformed the meaning of life tenure. This longevity has contributed to some serious problems, according to an ideologically diverse group of 45 leading legal scholars, several of whom are publishing law review articles on the subject. Earlier this year, these scholars agreed "in principle" on a proposal that seems especially timely now: staggered, 18-year term limits for all future justices, to marry judicial independence with more frequent and regular injections of new blood by the president and the Senate.

The problems associated with life tenure are subtle but serious:

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Opening Argument – Liberal Drug Warriors! Conservative Pot-Coddlers!

by Stuart Taylor, Jr.

National Journal

The Supreme Court’s four more-liberal members voted to allow federal prosecution of medical-marijuana users — including cancer patients who grow small quantities at home to alleviate agonizing pain — even in the 11 states that have legalized medical marijuana. So did centrist Justice Anthony Kennedy and conservative Justice Antonin Scalia.

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Opening Argument – The Court, And Foreign Friends, as Constitutional Convention

by Stuart Taylor, Jr.

National Journal

The idea of putting a person to death for a murder committed at age 17 or younger strikes many of us as grotesque. So it may seem fitting that five Supreme Court justices held on March 1 that juvenile executions violate "the evolving standards of decency that mark the progress of a maturing society" — the touchstone since 1958 for determining whether punishments are unconstitutionally "cruel and unusual."

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President Bush and the Court

by Stuart Taylor, Jr

The San Diego Union Tribune

A lot of liberals, and a lot of conservatives, think that President Bush is speaking in code when he says he would nominate to the Supreme Court "strict constructionists" who would "faithfully interpret the law, not legislate from the bench."

Just as liberal activist judges have driven millions of moderates into the Republican fold, conservative activist judges could drive them back out. Karl Rove must know this. So must Bush.

After all, didn’t Bush once cite Antonin Scalia and Clarence Thomas as his model justices? And haven’t they both voted to overrule Roe v. Wade? To uphold laws making homosexual acts criminal? To outlaw government use of racial preferences? To allow state-sponsored school prayers (at least at graduations and football games)? To require states to subsidize religious instruction (at least in some contexts)? To overrule Miranda v. Arizona? To strike down many federal laws as violating states’ rights?

Well, yes – but. Bush surely has committed himself to naming to the Court conservatives who would not invent new constitutional rights. But some conservative jurists are far less radical, and far more deferential to established precedents, than others. And if you imagine that Bush wants to pack the Court with Scalia/Thomas clones determined to sweep aside Roe and a raft of other liberal precedents, ask yourself this: What would that do to Republicans’ hope of securing their fragile majority status, and to Bush’s legacy?

The answer is that just as liberal activist judges have driven millions of moderates into the Republican fold, conservative activist judges could drive them back out. Karl Rove must know this. So must Bush.

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Opening Argument – Our Unjust Sentencing System: The Wrecking Ball As Cure

by Stuart Taylor, Jr.

National Journal

Acting Solicitor General Paul Clement speaks of "carnage and wreckage" in the federal criminal-sentencing system. Supreme Court Justice Stephen Breyer worries that his colleagues may be destroying the "noble objective" of ending unjust disparities in the sentencing of similar defendants for similar misconduct. Law professor Frank Bowman accuses the Supreme Court of creating "a ghastly mess, bringing the federal criminal-justice system to a virtual halt and putting a number of state systems in disarray."