April 19, 2010
Some years ago, I told my colleague Jack Goldsmith, when his role in revoking the notorious Yoo-Bybee torture memos became public, that the only thing worse than being demonized by the left is being lionized by the left. It works both ways, though. The media like to pin a one-word--or if they are more nuanced, one-phrase--epithet on public figures, as Homer would on his gods and heroes (grey-eyed Athena, wily Odysseus). They have decided to attach the term "conservative" (or for the more subtle: "relatively conservative") to solicitor general and former Harvard Law School Dean Elena Kagan.
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.
The Accountable Presidency
February 01, 2010
Crisis and Command: A History of Executive Power from George Washington to George W. Bush By John Yoo (Kaplan, 544 pp., $29.95) Bomb Power: The Modern Presidency and the National Security State By Garry Wills (Penguin, 288 pp., $27.95) I. In December 2008, Chris Wallace asked Vice President Cheney, “If the president, during war, decides to do something to protect the country, is it legal?” Cheney’s answer included a reference to a military authority that President Bush did not exercise.
The Quiet Revolution
February 01, 2010
Obama has reinvented the state in more ways than you can imagine.
The Constitution In Exile Appears
January 29, 2010
The most important aspect of the Supreme Court's invalidation of campaign finance laws may be that it signals a new step into judicial activism. Of course, the slogan of "judicial restraint" is the central promise of Republican judicial nominees, but it's fairly clear that this idea only applies when liberals hold the majority on the Court. Linda Greenhouse has a terrific piece today: Three years ago, after Chief Justice John G. Roberts Jr.
October 01, 2009
The most-watched case of the Supreme Court's last term, which ended in June, invited the justices to hold unconstitutional a key provision of the Voting Rights Act. The law required certain jurisdictions--largely in the Old South--to "pre-clear" any changes in their electoral systems with the Department of Justice. It was intended to prevent states with poor civil rights histories from changing their voting systems in ways that would keep blacks from voting.
September 01, 2009
The Constitution in 2020 Edited by Jack M. Balkin and Reva B. Siegel (Oxford University Press, 355 pp., $19.95) There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on.
August 12, 2009
THE CONSTITUTION IN 2020 Edited by Jack M. Balkin and Reva B. Siegel (Oxford University Press, 355 pp., $19.95) There is a genre, the "constitutional manifesto," that sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics. The latter category may be nicely illustrated by the competing slogans of interest groups contesting the Sotomayor nomination: "judicial activism," "empathy," and so on.
July 01, 2009
A tip from an informant led Detective Amando Rodriguez and Sergeant Diane Contreras to the stash house--actually a New York City apartment--which they had good reason to think contained a substantial haul of drugs. The suspicion was confirmed when they busted a man leaving the building with a kilo of cocaine in a black bag. The officers entered the building to stake out the apartment. That's when the carryout delivery woman arrived with an order for the stash house. Worried that she might inadvertently draw attention to their presence, the cops made a hasty decision to enlist her help.
Gosh Darn Sons of Guns
December 03, 2008
On Election Day, as the Supreme Court was debating the Bush administration's decision to fine TV networks for broadcasting "fleeting utterances" of the words "fuck" and "shit," an obscenity scandal in Britain cast light on the question before the justices: Can a single expletive actually be considered indecent?