July 13, 1993
"It is going to be impossible to defeat you in the Senate, because you have a way with words," Orrin Hatch told Sheldon Hackney during his confirmation hearings to head the National Endowment for the Humanities. Hatch was putting it mildly. Hackney's sins are not limited to his sophisms about the conflict between "openness and diversity" at the University of Pennsylvania. He should also be held accountable for defending speech codes a full year after the Supreme Court made clear that they are unconstitutional.
July 05, 1993
In every Supreme Court term, there is at least one case that tests, and vividly exposes, the character of the justices. Last year it was abortion; this year it is hate crimes. The outcome of Wisconsin v. Mitchell--which upheld a law that requires harsher sentences for criminals who "intentionally select" their victims "because of race, religion" and the like--was never really in doubt. But instead of being sensitive to the intricate First Amendment concerns that the case raised, William Rehnquist dismissed them contemptuously.
Banking on Bruce
June 28, 1993
If Bill Clinton nominates Bruce Babbitt to the Supreme Court, he will be hard-pressed to claim that the interior secretary shares his judicial philosophy. For after reviewing Babbitt's extensive writings and speeches, the White House is confident that Babbitt has virtually no opinions on constitutional issues that he has bothered to express. For most politicians, this would be unexceptional; but in Babbitt's case it is somewhat surprising.
June 21, 1993
Having peered behind the red velvet curtains of the Rehnquist Court, the press now tells the embarrassed justices that they have nothing to be embarrassed about. But after spending last week in the Marshall archives, I sympathize with William Rehnquist's fears. The portrait of the justices that emerges from their internal correspondence is not, in fact, particularly flattering.
A Womb with a View
June 14, 1993
Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom by Ronald Dworkin (Knopf, 273 pp., $23) Liberals urgently need a constitutional philosophy, and Ronald Dworkin is eager to provide one. In his important writings over the past three decades, he has tried to work out a comprehensive theory of law, as well as a principled approach to the American Constitution. With few apologies, he has defended the Warren Court against a parade of conservative critics -- from the Burkean prudentialism of Alexander Bickel to the purported historicism of Robert Bork.
May 10, 1993
The White House has expanded its search for the next Supreme Court justice; and it is now possible to evaluate the scholarship, opinions and constitutional vision of the candidates. All are able federal judges. But some are more proficient than others at textual and historical analysis, and so better equipped to win over the swing justices and to challenge the Court's most aggressive intellectual, Antonin Scalia, on his own terms. In ascending order: Mary M. Schroeder, 52. U.S. Court of Appeals, Phoenix, Arizona.
April 26, 1993
There is an occupational hazard of writing about Mario Cuomo: even if you are generally sympathetic to him, he'll call to correct you. And the New York governor was not daunted by his status as the front-runner for the next Supreme Court seat.
March 29, 1993
Can the state of Arizona pay an interpreter to sign the rosary for James Zobrest, a deaf student at a Catholic high school? Zobrest's parents claim Arizona misinterpreted the religion clauses of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof") when it decided to put sign language interpreters in secular, but not religious, private schools. At oral argument on February 24, the justices joked about their incoherent doctrine for policing the Establishment Clause and the embarrassing results it has produced.
March 08, 1993
"Have you read Proust?" Justice Souter asked near the beginning of my interview for a clerkship last March. We were talking about Henry Adams, the subject of my college thesis, and so the question was unexpected. I hadn't gotten very far, I confessed; but Justice Souter was sympathetic. "I failed, too, when I tried the first time. But then I read him in a gulp one August, and was struck by the cumulative effect of the prose." Suddenly he smiled. "If I could take a year off from this job, I'd like nothing better than to go to a small college and teach a comparative seminar on Adams and Proust.
February 15, 1993
The angry populism that forced Zoe Baird to withdraw her nomination as attorney general was expressed as a syllogism. She had broken "the law" (which law, no one was precisely sure); therefore she was not fit to lead the Department of Justice. Taking their cue from their constituents, the senators who demanded Baird's repentance were equally legalistic. "To me this is a big deal, personally," said Senator Joseph Biden, "and I suspect it is to a lot of Americans." "A technical or theoretical violation?" asked Senator Alan Simpson, incredulously.