Tag Archives: Supreme Court

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Courts Could Void Arizona’s New Law

by Stuart Taylor, Jr.

National Journal

President Obama had it about right, in my view, when he called Arizona’s new immigration law "misguided" and a threat to "basic notions of fairness" and to "trust between police and our communities."

Similar misgivings — filtered through a legal doctrine called "field pre-emption" — seem more likely than not to persuade the courts to strike the law down.

But please, let’s can the hysteria. The problems with this law — and with copycat proposals in at least 10 other states — are a far cry from the images of Nazi Germany, apartheid, and the Jim Crow South conjured up by leftists who would denounce any effort to discourage illegal immigration.

To correct some misconceptions:

• The solid majority support for the law among Arizonans — and the 51 percent support among other Americans who told Gallup pollsters that they had heard of the Arizona law — is not driven by racism. It’s driven by frustration with the federal government’s failure to protect Arizona and other border states from seeing their neighborhoods, schools, hospitals, and prisons flooded by illegal immigrants. Worse, "It’s terrifying to live next door to homes filled with human traffickers, drug smugglers, AK-47s, pit bulls, and desperate laborers stuffed 30 to a room, shoes removed to hinder escape," as Eve Conant reported in Newsweek.

• Although it’s true, and most unfortunate, that absent robust administrative safeguards the Arizona law could lead to racial profiling by police, it certainly does not require racial profiling. Indeed, a package of revisions signed on April 30 by Arizona Gov. Jan Brewer seeks to prohibit racial profiling. The revisions did this by deleting the word "solely" from the original, April 23, law’s provision barring investigation of "complaints that are based solely on race, color, or national origin."

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Kagan May Mean a More Conservative Court

by Stuart Taylor, Jr

The Atlantic

One irony of President Obama’s nomination today of Solicitor General Elena Kagan to the Supreme Court is that the effect of a Democratic president filling the seat of Republican-appointed Justice John Paul Stevens will likely be to make the Court more conservative.

Another irony is that after vowing to name a justice with "a keen understanding of how the law affects the daily lives of the American people," the president has chosen a New-York born graduate of Princeton and Harvard Law School who has spent almost her entire career teaching in elite law schools and working in the upper echelons of the Clinton and Obama Administrations. Her experience has been far from the circumstances of most ordinary Americans. (Stevens is the only member of the current Court who did not attend Harvard or Yale Law School.)

This is not to deny the 50-year-old Kagan’s notable strengths: a brilliant legal mind, demonstrated skills as a consensus-builder and conciliator as dean of Harvard Law School from 2003 to 2008, an engaging personality, skilled at getting along with liberals and conservatives alike, and parents whose lives and careers exposed her to the struggles of ordinary people — plus, the prospect of serving as a justice for 40 years if she, like Stevens, lasts until age 90.

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The Principles of Elena Kagan

by Stuart Taylor, Jr

The Atlantic

There’s been a lot of attention this week on Elena Kagan’s 1983 master’s thesis, a critique of the liberal Warren Court’s methods, although not necessarily its outcomes.

One passage that jumps out is her assertion that "if a court cannot justify a legal ruling in terms of legal principle, then that court should stay its hand."

It’s hard to argue with that. But you have to wonder whether the current Kagan would agree with her younger self when it comes to the most headline-grabbing victory for the Court’s liberals this term, which is expected to wind down by about June 28. That also happens to be the first day of Kagan’s Senate confirmation hearing, unless the schedule slips.

The case is Graham v. Florida. Earlier this week, the Court’s four liberals and sometimes-liberal Justice Anthony Kennedy struck down laws in 37 states and an act of Congress that allowed for sentences as severe as life without parole for juveniles whose crimes did not include homicide.

Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices — preferences with which I happen to agree.

But policy preferences are not constitutional commands. Not unless you subscribe to what the late, liberal lion William Brennan used to call the "rule of five." As Justice Brennan explained it to law clerks, "If you have five votes, you can do anything you want around here."

So where would Kagan have come down in Graham? You might imagine from her resume that she would have voted with the liberal majority. But consider that passage, and others, from her 134-page master’s thesis. She wrote it while in her early 20’s, studying at Oxford University after graduating from Princeton and before entering Harvard Law School.

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What if Supreme Court Justices Had to Run on Their Records?

by Stuart Taylor, Jr

The Atlantic

Various analysts have dissented from my May 14 post, "Why Kagan Should Stonewall the Senate." There I argued that Elena Kagan should follow the almost unbroken tradition of judicial nominees refusing to disclose their views on issues likely to come before their courts.

So here I detail some of the logic underlying my major premise: a predictive judgment that complete candor about all big issues would likely doom any Supreme Court nominee, no matter what his or her views might be.

If I’m right about this, it should clinch the case for stonewalling on specific issues even apart from my other, more normative premise: that full disclosure would lead nominees down the road toward essentially promising to decide the big issues in specified ways in a (probably vain) effort to eke out a Senate majority.

To think through how the tell-all approach would play out, let’s consider whether any of the nine current justices – other than Sonia Sotomayor, who has not yet cast votes on many big issues — could win re-confirmation by the Senate now that their views are known.

Such a hypothetical reconfirmation proceeding would approximate the difficulty of confirming a nominee who makes all of her views known.

Take Justice Stephen Breyer, who might well be the easiest of the eight veteran justices to confirm.

Why the easiest? First, because as a fairly liberal Clinton appointee, Breyer would fare better among Senate Democrats than any of the five more conservative justices. Second, because with a record more moderate than those of the quite liberal Justices John Paul Stevens and Ruth Bader Ginsburg, Breyer would probably have a better chance with Senate Republicans.

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Why Kagan Should Stonewall the Senate

by Stuart Taylor, Jr

The Atlantic

One Elena Kagan assertion that seems supported by a broad bipartisan consensus is that senators should insist that nominees disclose their "views on particular constitutional issues . . . involving privacy rights, free speech, race and gender discrimination, and so forth." (Oddly, her bill of particulars omitted abortion.)

Kagan complained, in a 1995 book review in the University of Chicago Law Review, that all nominees since the defeat of Robert Bork in 1987 had "stonewalled" the Senate Judiciary Committee by refusing to discuss specific issues and sticking to "platitudes." This, she famously wrote, has made confirmation hearings "a vapid and hollow charade." All quite true.

People ranging from Republican senators to my old friends Linda Greenhouse, writing in The New York Times, and Mike Kinsley, writing and on video in The Atlantic Wire, emphatically endorse Kagan’s 1995 case for telling all and hope that she won’t recant now.

But Kagan will recant. And she should. Yes, at first blush there seems to be an overwhelming case for demanding candor from a nominee who seeks a lifetime appointment to an office with more power than any but the presidency, and who will never have to answer to voters.

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Garland Born To Be A Judge

by Stuart Taylor, Jr.

National Journal

I recently asserted that any of the four people on the list initially leaked by the White House would be an excellent nominee to succeed retiring Justice John Paul Stevens. (See "An Excellent Supreme Court Shortlist," 4/10/10, p. 15.) Now I’d like to argue that the wisest choice would be Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

I hasten to add that the consensus that Garland would be the least controversial, most easily confirmed nominee is the least of my reasons for praising him.

Nor is my personal relationship with Garland a substantial factor, although full disclosure is in order: We became friendly in law school, working together on the law review in the mid-1970s. We had dinner at each other’s homes years ago and, more recently, have met for lunch once or twice a year. He invited my wife and me, among many others, to his chambers to watch President Obama’s inauguration. Garland has been guarded about his views, and I know nothing about them beyond the public record. But I can testify — as can many others — that he is about as fair-minded, judicious, and straight as a straight-arrow can be.

To be sure, ranking Garland and the three other shortlisters — all people of outstanding integrity and intellect — is a close call.

Solicitor General Elena Kagan, the early betting favorite, would bring youth (she is 49; Garland is 57), charm, and substantial conservative as well as liberal support. The former Harvard Law School dean is unencumbered by much of a paper trail — her views on almost all of the big issues are unknown — or by as much real-world experience as the others.

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Three Supreme Court Myths – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

At both ends of the ideological spectrum, politicians, activists, journalists, and academics like to stress how big a change the next Supreme Court justice could make in the course of the law. The appointment will, says the conventional wisdom, be among President Obama’s most important legacies.

Many also stress how far to the right (say liberals) or left (say conservatives) of center the Supreme Court has been in recent years, the better to dramatize the need to correct the perceived imbalance.

And the dominant media image has been of "the conservative Court" (recent articles in The Washington Post), or "the Supreme Court’s conservative majority" (New York Times editorials), or a Court "as conservative as it’s been in nearly a century" (Newsweek commentary by my friend Dahlia Lithwick).

All this brings to mind three contrarian theses.

First, it simply won’t make much difference in the next five or so years — if ever — whom Obama picks from the lists of moderately liberal, extremely liberal, and just plain liberal candidates leaked by the White House.

Indeed, I can’t think of a single case or issue that would foreseeably be decided differently depending on whether the nominee turns out to be the most or the least liberal of those under serious consideration.

The Court is by nature quite stable. Imagine, for example, that Obama nominated and the Senate confirmed a person more liberal than either John Paul Stevens or any other current justice. No matter how passionate, or how brilliant, or how persuasive, he or she could move the law no further than at least four others were willing to go. And given the justices’ fierce independence, it’s hard to imagine any of them lurching leftward at the urging of the new kid on the block.

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How Republican Justices Evolve Leftward – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much.

Rather, according to Stevens, he has remained about where he always was while newer and younger appointees have pushed the court to the right.

The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who will turn 90 on April 20, may be kidding himself a bit about his own consistency.

Like some other Republican-appointed justices in recent decades — Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter, Warren Burger and Lewis Powell — Stevens has become markedly more liberal during his years on the court.

Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never — or, at least not yet — made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.

What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.

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An Excellent Supreme Court Shortlist – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

With the long-expected announcement by Justice John Paul Stevens that he will retire by July, the coming summer could be dominated by a big confirmation battle — or perhaps just enlivened by a little skirmish, if President Obama picks a relatively uncontroversial nominee.

Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left, legislate from the bench, impose gay marriage by judicial decree, strip "under God" from the Pledge of Allegiance, invent welfare rights, require government-funded abortions, and free terrorists.

But, in fact, none — or at most one — of the four brainy and well-qualified public servants at the top of the shortlists that have made their way into the media from inside sources seems likely to move the Court left.

None of the four is clearly more liberal than Stevens, who is in turn a lot less liberal than, say, the late Justices William Brennan or Thurgood Marshall.

Stevens, who will still have one of the best minds on the Court when he turns 90 on April 20, has long insisted that he remains the old-fashioned judicial conservative and moderate Republican he was when President Ford appointed him in 1975. But the leftward drift of his opinions over the years has made him the senior member of the four-justice liberal bloc.

The four shortlisters are Solicitor General Elena Kagan; federal Appeals Court Judges Diane Wood of Chicago and Merrick Garland of the District of Columbia; and (though some count her out) Homeland Security Secretary Janet Napolitano. President Obama interviewed Kagan, Wood, and Napolitano last spring before choosing Sonia Sotomayor, an Appeals Court judge, to succeed Justice David Souter.

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A Liberal Nominee — And A Proposal

by Stuart Taylor, Jr.

National Journal

The president’s nominee had "a brilliant legal mind" and a charming manner, the critic wrote in an op-ed. But his record was "resolutely conservative." This made the Supreme Court nomination "a seismic event that threatens to deepen the nation’s red-blue divide." It should be rejected, the critic implied.

The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama’s judicial nominees.

Indeed, the 39-year-old Liu’s sweeping vision of court-ordered social justice, though within the mainstream of legal academic opinion, puts him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters, I’d guess.

Putting aside his ideology and his less than two years of legal experience outside the academy, Liu is an admirable candidate for the federal Appeals Court seat in California that he will fill if confirmed. The Rhodes scholar and former law clerk to Justice Ruth Bader Ginsburg has an inspiring son-of-Taiwanese-immigrants life story. Plus, people like him.

So how should Senate Republicans and moderate Democrats respond to Liu’s nomination, now set for a Judiciary Committee hearing on April 16? Defer to the president? Vote no? Stall? Filibuster?

More on that below. First, a look at Liu’s writings and speeches, which conservative legal analyst Ed Whelan has collected, linked, and exhaustively analyzed in multiple posts on National Review Online’s Bench Memos blog.