Pragmatism Strikes Back
September 28, 2010
Justice Stephen Breyer’s new book arrives at a time when liberals are still hungry for a constitutional vision. And Justice Breyer is the only sitting
Substance, At Last!
July 01, 2010
Far from turning into a “vapid and hollow charade,” to use Elena Kagan’s now-famous condemnation of other Supreme Court confirmation hearings, her own have been impressively substantive.
Why Brandeis Matters
June 29, 2010
Louis D. Brandeis: A Life By Melvin I. Urofsky (Pantheon, 955 pp., $40) I. In 1916, Herbert Croly, the founder and editor of The New Republic, wrote to Willard Straight, the owner of the magazine, about the Supreme Court nomination of Louis Brandeis. Croly enclosed a draft editorial called “The Motive of Class Consciousness,” and also a chart prepared by a lawyer in Brandeis’s office showing the overlapping financial interests, social and business connections, and directorships of fifty-two prominent Bostonians who had signed a petition opposing Brandeis’s nomination.
The Next Justice
May 10, 2010
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.
May 07, 2010
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.
The Battle Over the Court
April 14, 2010
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.
POTUS v. SCOTUS
March 16, 2010
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.
Promises, Promises, Promises
March 10, 2010
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.
Roberts versus Roberts
March 02, 2010
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.
January 29, 2010
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.