Robust and Wide-Open
January 27, 2011
Justice Brennan: Liberal Champion By Seth Stern and Stephen Wermiel (Houghton Mifflin Harcourt, 674 pp., $35) In September 1956, when the eminently forgettable Justice Sherman Minton announced his retirement from the Supreme Court, President Eisenhower’s motivation in selecting a replacement stemmed less from legal considerations than from political calculations. With the upcoming presidential election just weeks away, he instructed Attorney General Herbert Brownell Jr. to locate a nominee who, in addition to being younger than sixty-two, was both a Catholic and a Democrat.
Rights, Words, and Laws
October 23, 2010
I. Words have meanings, often more than one. Many words also have evocative power and communicative reach that go well beyond the restricted use of these terms with well-defined professional delineation. In 1911, when Christabel Pankhurst asserted in a speech in London that “we are here to claim our right as women, not only to be free, but to fight for freedom,” adding that this is “our right as well as our duty,” she communicated a great deal.
Who's Your Donor?
October 20, 2010
In a 1998 editorial that was otherwise skeptical of campaign finance reform, The Wall Street Journal wrote, “If there’s one thing all the players agree on it’s the need for better disclosure of contributions and a crackdown on violators.” And who, indeed, could object to the principle—more necessary than ever after the Supreme Court’s ruling in Citizens United paved the way for corporations to get more involved in funding elections—that voters should know who is paying for political ads? Well, it turns out a lot of people object—including The Wall Street Journal’s editorial writers circa 2010
June 22, 2010
In 1997, Justice Antonin Scalia released a slender volume setting forth his judicial vision. In addition to defending originalism, Scalia sought to disparage what he viewed as the then-dominant mode of interpreting the Constitution. “The ascendant school of constitutional interpretation affirms the existence of what is called The Living Constitution, a body of law that ... grows and changes from age to age, in order to meet the needs of a changing society,” Scalia wrote.
Blast at the Past
June 03, 2010
Washington—It should become the philosophical shot heard 'round the country.
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.