The Color-Blind Court
July 31, 1995
The conservative justices are privately exuberant about the remarkable Supreme Court term that ended last week. Surprised and slightly dazed by the magnitude of their victory, they think they have finally exorcized the ghost of the Warren Court, fulfilled the goals of the conservative judicial revolution and vindicated the ideal of a color-blind Constitution for the first time since Reconstruction.
June 12, 1995
The Supreme Court struck down congressional term limits this week; and the surprising part of the 5-4 decision was not the wooden majority opinion by John Paul Stevens but the elastic dissent by Clarence Thomas. For the justices and their clerks, of course, rhetorical excesses are one of the pleasures of writing dissents, and shouldn't always be taken seriously.
May 22, 1995
It was a coincidence, of course, that exactly a week after the Oklahoma bombing, the Supreme Court struck down the Gun Free School Zones Act of 1990, holding that Congress had exceeded its enumerated powers for the first time since the New Deal. Nevertheless, some commentators are treating the two events as if they were portentously linked.
Affirmative Action: A Solution
May 08, 1995
Is there a middle ground on affirmative action, an oasis between radical color-blindness on the right and racial quota-mongering on the left? As President Clinton prepares to unveil his conclusions on the subject, it's hard not to sympathize with his political predicament, but hard also not to anticipate his speech with a sense of dread. Having raised expectations so dramatically, he no longer has the luxury of embracing contradictory positions, or retreating into euphemisms. But is his task impossible?
Search and Seize
March 27, 1995
The Senate Judiciary Committee this week debated a bill that would abolish the exclusionary rule, which bars illegally seized evidence from criminal cases. Instead, the bill would let victims of unreasonable searches sue the government for tort damages. "This hearing is an interesting and worthwhile academic exercise," intoned Senator Joseph Biden, who proceeded to browbeat the Republican's star witness, Akhil Amar of Yale Law School. Amar, a liberal Democrat, wrote an article in 1994 that criticized the exclusionary rule as a betrayal of the original understanding of the Constitution.
March 13, 1995
Your legal correspondent has been doing his part to keep this magazine 100 percent O.J.-free. My resolution to miss each moment of the trial of the century began out of indolence and has now blossomed into a ripe affectation. The truth is that I've always had an aversion to celebrity trials: the soap operatic narratives spun out to arouse the passions of jurors leave me alternately indifferent and uncomfortable; and the messy particularity of actual human experience tends to obscure the abstract legal principles that make my heart race.
March 02, 1995
George Stephanopoulos turned up at the Supreme Court last week, sitting next to Joel Klein, the deputy White House counsel. Their joint appearance seemed to illustrate the administration's anxiety about the case, Adarand v. Pena, in which the Court is being asked to strike down racial preferences in the construction industry that have been endorsed by every president since Nixon. But Klein assured me afterward that Stephanopoulos, who had never seen a Supreme Court argument before, had come along purely out of curiosity. He picked a good day.
The War on Immigrants
January 30, 1995
On December 14, 1994, a federal judge in Los Angeles enjoined the state of California from enforcing Proposition 187, which would deny health, education and welfare benefits to illegal aliens and their children. The case eventually may reach the Supreme Court; and Governor Pete Wilson has called on the justices to overturn a 1982 decision, Plyler v.
Coming to Terms
December 12, 1994
At the end of October a huge red, white and blue envelope from a group called U.S. Term Limits arrived in the mail. "Fellow American," it began, " most members of Congress view their job as guaranteed for life. The average rate for incumbent congressmen over the last decade has been almost 98 percent. why? Because it is almost impossible for a challenger to come anywhere near matching an incumbent's campaign war chest!... term limits is the greatest movement of the twentieth century!" That was last month.
The Forgotten Formalist
December 05, 1994
Hugo Black: A Biography by Roger K. Newman (Pantheon, 741 pp., $30) On February 17, 1960, at New York University, Justice Hugo Black defended his judicial philosophy against the sneers of Felix Frankfurter and Learned Hand. "Some people regard the prohibitions of the Constitution ... as mere admonitions which Congress need not always observe," said Black in backhanded response to Hand's lectures at Harvard two years earlier. This approach, which "comes close to the English doctrine of legislative omnipotence," Black could not accept.