Tag Archives: Supreme Court

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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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Legal Affairs – An Elegant Mess Partially Reaffirmed

by Stuart Taylor, Jr.

National Journal

By the Court On the face of it, the Supreme Court’s 6-3 decision on campaign finance, handed down early this week, was a routine reaffirmation of the status quo-the Justices’ 1976 Buckley vs. Valeo precedent, an exercise in constitutional baby-splitting that once seemed elegant to some of us but that has, in practice, made an awful mess of things. But the Jan. 24 ruling touched off noisy celebrations among self-styled campaign finance law reformers who detest the status quo. This was partly spin on their part, of course. But the decision did reflect subtle movement in the reformers’ direction by some Justices, at least three of whom openly invited tighter campaign finance restrictions.

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Legal Affairs – Ambivalence In the Pursuit of Judicial Modesty Is No Vice

by Stuart Taylor, Jr.

National Journal

It’s no secret that the next President could alter the ideological balance on the Supreme Court. The Court is so closely divided that the next appointment or two could produce a shift either to the liberal or to the conservative side. What’s less widely appreciated is that the current makeup of the Court so closely mirrors the nation’s divisions, with those at the center often striking so delicate a balance, that a dramatic shift in either direction would be quite unsettling for the body politic. With the Justices split 5-4 on affirmative action, racial gerrymandering, church-state relations, and states’ rights, a one-vote switch could, for example, virtually wipe out governmental use of racial preferences–or ensconce them more firmly than ever before. Roe vs. Wade hangs by two votes. And the next President’s appointments (if any) could make the Court far more conservative–or more liberal–on gay rights, the "right to die," campaign finance restrictions, feminist causes, and other ideologically charged issues. But thoughtful liberals should hesitate to wish for a Court bent on sweeping away laws requiring that parents be notified when their children seek abortions, or junking the military’s restrictions on women in combat, or striking down the death penalty (again). And thoughtful conservatives should hesitate to wish for a majority bent on eradicating the racial preferences used by most elite universities (and other institutions), or reinstating prayer in public schools, or overruling Miranda vs. Arizona (as the current Court has been urged to do in a pending case). The reason is that popular government works best when Justices use their powers sparingly and seek to foster and inform rather than to pre-empt democratic debate on the great issues of the day, and when they respect their own precedents. Such restraint comes most naturally to Justices who can see merit in both liberal and conservative perspectives.

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Legal Affairs – Should the Supreme Court Dump the Miranda Rules?

by Stuart Taylor, Jr.

National Journal

Quietly ticking away in the files of the Supreme Court is a time bomb that seems likely to explode into controversy in the next few weeks–and rock Congress, the Clinton Administration, and the Court itself. The time bomb is Charles T. Dickerson vs. U.S., a petition from a bank-robbery defendant for review of an extraordinary ruling by the U.S.

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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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Online NewsHour: Supreme Court Watch – March 4, 1998

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PHIL PONCE: For a legal explanation of today’s same-sex sexual harassment ruling we turn to NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor to Newsweek, and we look at the ruling’s impact on the workplace with Ellen Bravo, co-director of 9 to 5, the national association of working women which represents women and men in non-management positions, and Kathleen Neville, a business consultant and author of "Corporate Attraction: An Inside Account of Sexual Harassment on the Job." Welcome all. Stuart Taylor, first, a quick statement of the facts of the case that led to this decision.

STUART TAYLOR, National Journal: This is a lawsuit by a man named Joseph Oncal, who had been harassed on an oil rig in the Gulf of Mexico on which only men worked. Two of his supervisors and a third man engaged in a succession of sexually harassing types of things with him, including humiliating him with a bar of soap when they were naked in the shower once, for example, threatening him with rape. He ultimately resigned, saying that he feared being raped, although none of this was apparently motivated by homosexual desire–it was just being nasty to him–and ultimately sued for sexual harassment, claiming a violation of the 1964 Civil Rights Act, Title VII, sex discrimination provisions.

PHIL PONCE: And the lower court, the Fifth Circuit Court of Appeals, held that?

STUART TAYLOR: They held flatly that because he was a man suing for sexually harassing conduct by other men he had no federal remedy. He could sue in state court for battery, or something like that, but they held broadly that same-sex sexual harassment doesn’t violate federal civil rights laws. And that was the issue the Supreme Court took the case to consider.

PHIL PONCE: And the Supreme Court held that.

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Online NewsHour: Ellis Island Dispute – January 12, 1998

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MARGARET WARNER: Now, for more on what happened today, we’re joined by NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor of Newsweek.

Stuart, why are these two states arguing over this? I mean, doesn’t the federal government actually own and operate the museum on the land there?

STUART TAYLOR, National Journal: Yes, it exerts total control. New York does collect about $500,000 a year in tax revenues from concession stands that are in the historic part, but this dispute, as the deputy assistant solicitor general suggested for the United States and the argument today has little to do with practical consequences and a lot to do with perhaps symbolism, bragging rights over this historic immigration gateway. It has a lot to do with the territorial imperative. In fact, The New York Times gave an interesting example–an editorial which we were reminded of courtesy of The Washington Post this morning–in whichThe New York Times said, "New Jersey’s attempt to snatch Ellis Island is unfriendly, unbecoming, un-American, untoward, unhelpful, unprincipled, unseemly, unwarranted, and underhanded," to which a New Jerseyian might add "and right."

MARGARET WARNER: So taxpayers might ask, why is the Supreme Court taking its time with this?

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Online NewsHour: Proposition 209 – November 3, 1997

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MARGARET WARNER: Today the Supreme Court declined to hear a challenge to California’s Proposition 209. The 1996 initiative bans race or gender from being a factor in state hiring or contracting decisions and state college or university admissions. We get more now from NewsHour regular Stuart Taylor, senior writer with National Journal and contributing editor to Newsweek.

Stuart, first, just explain what exactly did the court do today?

STUART TAYLOR, National Journal: Strictly speaking, all they did was nine simple words; the petition for a writ of certiorari is denied. What that means is we’re not going to hear this case. They issued it without comment and without dissent. They didn’t say why they weren’t going to hear it. Typically, they do that hundreds–thousands of times each year, and it’s usually not–it’s never a precedent, a national precedent when they do it, and it’s usually not much of a news event. This time, I think, because of the vast importance of this case it is a substantial news event.

MARGARET WARNER: All right. Explain what you mean when you say it isn’t a precedent?

STUART TAYLOR: That means that in lower courts that lower courts around the country are not bound by what the court did today. The U.S. Court of Appeals from the 9th Circuit upheld the constitutionality of Proposition 209, and in the western states that are within its jurisdiction that is now law. But let’s say if Florida–which has thought about adopting a similar measure–does so–and there’s a challenge there, the federal courts in that part of the country will not be banned by what the Supreme Court did today. They will at least theoretically have the option of saying, well, we think it’s unconstitutional. In that sense the argument is not resolved for all time.

MARGARET WARNER: And what is the significance of the court not making any comment whatsoever? They could have made some written comment.

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NewsHour: Supreme Court Watch – October 6, 1997

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JIM LEHRER: This is the first Monday in October, always the first day of a new term of the U.S. Supreme Court. We look at the prospects and the possibilities of this term with NewsHour regular Stuart Taylor of Legal Times and The American Lawyer. Stuart, welcome. STUART TAYLOR, The American Lawyer: Nice to be here.

JIM LEHRER: In general, what should we expect from this term?

STUART TAYLOR: The biggest cases on the horizon so far involve race, gender, and the complex of issues under the rubrics racial, affirmative action, racial preferences, and sexual harassment.

In particular, the civil rights groups I think are awaiting this term with trepidation because when you count the votes in past cases, they have a hard time being optimistic about two big cases: one which the court has already agreed to here involving two schoolteachers in New Jersey in which a white teacher was laid off ahead of a black teacher, who was deemed equally qualified, on the ground that diversity in the business education department of a high school was the goal to be pursued. And the court’s going to review that. A lower court in that case held very broadly that any kind of racial preference could not be justified in employment if the only reason was diversity.

And there’s a huge case from California coming that may be even more important that the court will probably decide whether or not to hear sometime in the next month or two, and even if they say we’re not hearing it, even if all they say sert denied, it would be enormous.

JIM LEHRER: That’s a big deal.

STUART TAYLOR: It would be a very big deal.

A case challenging affirmative action.

JIM LEHRER: I’ll just go through those one at a time. The New Jersey case; give us the facts on that and where the matter rests as we speak.

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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.