Liberals say the Supreme Court is too conservative. Conservatives say it’s too liberal. But many experts in both camps agree that the nine current justices have taken us too far down the road of judicial supremacy.
July 1, 2008 — With the retirement of 88-year-old Justice John Paul Stevens today, the Supreme Court’s membership dwindled to four. The remaining two liberals (Stephen Breyer and David Souter) and two conservatives (Antonin Scalia and Clarence Thomas) are almost certain to deadlock on big issues including abortion, affirmative action, gay rights, religion, and presidential war powers. So any tie-breaking replacement for Stevens would be in a position to rewrite vast areas of constitutional law.
Practitioners of the loosey-goosey approach to constitutional interpretation that maddens original-meaning conservatives such as Supreme Court Justice Antonin Scalia are increasingly looking to a virtually unlimited source of new raw material: foreign law, including international human-rights conventions, Zimbabwe Supreme Court rulings, and whatever else might come in handy. Indeed, two of the more internationalist justices, Sandra Day O’Connor and Ruth Bader Ginsburg, have confidently predicted that (in O’Connor’s words) the justices "will find ourselves looking more frequently to the decisions of other constitutional courts."
The perception that the Bush administration has systematically denied due process to the more than 650 alleged "enemy combatants" at Guantanamo Bay has both shocked Americans who care about the rule of law, me included, and done America enormous damage in world opinion. But the system may be starting to work. Indeed, it may have been working for some time better than I had thought.
"The reporter’s constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlies the Constitution’s protection of a free press, … because the guarantee is not for the benefit of the press so much as for the benefit of all of us."
What power has the government to detain and interrogate American citizens and others whom it suspects of links to foreign enemies but cannot criminally prosecute without harming its ability to gather intelligence? And what rights have such people to challenge the government’s claims that they are "enemy combatants"?
Overshadowed by the December 10 decision upholding the McCain-Feingold campaign finance law was an important oral argument that morning over whether the Supreme Court should arrogate to itself vast new powers to redraw every congressional district in the nation. The goal would be to clean up the incumbent-entrenching, polarizing, gerrymandered mess that redistricting has become, or at least to strike down partisan gerrymanders so extreme as to mock majority rule.
The Supreme Court was probably right to uphold the two most publicized provisions of the Bipartisan Campaign Reform Act of 2002. The first bans large, potentially corrupting gifts of soft money to the major political parties at the behest of members of Congress and other federal officials. The second bans any use of business corporation or labor union money to buy broadcast ads naming federal candidates close to the time of a federal election.
It would be no loss to humanity if we dragged Zacarias Moussaoui in front of a firing squad tomorrow and shot him. He has boasted in open court of being a "member of Al Qaeda" and loyal to Osama bin Laden, and of knowing "exactly who" committed the 9/11 mass murders. He has declared, "I, Zacarias Moussaoui, urge, incite, encourage, solicit Muslim to kill Americans, civilian or military, anywhere around the world." He is crazy and evil.
As a policy matter, gay marriage is an easy call. I’m for it.
