In a 1998 profile of Elena Kagan in the New Republic, Dana Milbank described Bill Clinton’s deputy chief of domestic policy as “wonderwonk,” an “all purpose brain” in the White House and a “nerd who could talk tough.” In addition to acting as a walking encyclopedia for Bill Clinton on constitutional and legal issues, Kagan convinced John McCain and other Senate Republicans to accept the Food and Drug Administration’s authority to regulate tobacco—even though she herself was a former smoker who then indulged in the occasional cigar.
As soon as Justice John Paul Stevens announced that he would leave the Supreme Court, President Obama and progressive groups said the next justice should be an economic populist.
I. Moments after Justice John Paul Stevens announced his intention to retire from the Supreme Court, Republican senators warned President Barack Obama not to appoint a judicial activist to replace him. Senator Orrin Hatch promised Obama “a whale of a fight if he appoints an activist to the court” and Senator Mitch McConnell warned that “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law." But Hatch and McConnell’s definition of “judicial activism” is topsy-turvy.
Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight. Last week, the chief justice described the president’s State of the Union condemnation of the Citizens United decision as “very troubling” and complained that the speech had “degenerated to a political pep rally.” Roberts was making an argument about etiquette--dissent was fine, he said, but Obama had somehow transgressed the boundaries of civilized discourse by delivering his attack to a captive audience.
In a recent TNR article about the Citizens United decision, “Roberts versus Roberts,” I argued that the chief justice has so far failed to achieve his goal of promoting narrow, unanimous decisions rather than ideologically polarizing ones. After the piece came out, Ed Whelan claimed that Roberts had never promised to try to lead the Court in such a fashion.
Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v. Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates.
Last summer, I watched a fellow passenger at Washington’s Reagan National Airport as he was selected to go through a newly installed full-body scanner. These machines--there are now 40 of them spread across 19 U.S. airports--permit officials from the Transportation Security Administration (TSA) to peer through a passenger’s clothing in search of explosives and weapons. On the instructions of a security officer, the passenger stepped into the machine and held his arms out in a position of surrender, as invisible millimeter waves surrounded his body.
One of the most dramatic moments in President Obama's State of the Union was his attack on the Supreme Court with the justices arrayed in front of him. "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests--including foreign corporations--to spend without limit in our elections," Obama declared.
Is it worth sacrificing health care reform for ideological purity on abortion? That’s the question Democrats are facing after House Speaker Nancy Pelosi, to avoid derailing health care legislation, reluctantly accepted an amendment offered by Michigan Democrat Bart Stupak that prohibits people who receive any federal health care subsidies from buying insurance plans that cover abortion.
Lawrence Lessig argues convincingly that there are dangers in systematically favoring transparency over privacy: A thoughtful democracy should strike a balance between both values, which sometimes compete and sometimes reinforce each other. I found less cause for optimism, however, in Lessig’s proposals for combating the dangers he associates with naked transparency. Lessig suggests that the solution to the problem of wrongly assuming that all politicians are corrupted by campaign contributions is to pass a generous public funding bill.