June 09, 2011
On March 29, 1989, at a time when many of his fellow first-year law students were beginning to prepare for the spring semester’s looming examinations, Barack Obama paid a visit to the office of eminent constitutional law professor Laurence Tribe. Obama had not dropped by to brush up for a test. In fact, he had yet even to enroll in an introductory constitutional law course, a gratification Harvard Law School denies its students until the second year of study. Obama’s call was purely extracurricular: He wanted to discuss Tribe’s academic writings.
The Case for Early Retirement
April 28, 2011
Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do. Both have served with distinction on the Supreme Court for a substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both are unlikely to be able to outlast a two-term Republican presidential administration, should one supersede the Obama administration following the 2012 election. What’s more, both are, well, old: Ginsburg is now 78, the senior sitting justice. Breyer is 72. Is such a suggestion an illicit politicization of the Court? No.
Inside the Mind of Justice Kennedy
March 28, 2011
After decades of battles in the political system, and now in the courts, the fate of health care reform is likely to come down to the vote of one man: Justice Anthony Kennedy. As the swing vote on a Supreme Court closely divided between liberals and conservatives, he will almost certainly have the power to uphold or strike down the “individual mandate” that is a centerpiece of President Obama’s Affordable Care Act (ACA).
March 17, 2011
As everyone knows, the health care reform lawsuits that are currently making their way to the Supreme Court are being shepherded and applauded by conservatives. But how conservative is the judicial philosophy behind the suits? The answer turns out to be complicated. In fact, once the lawsuits end up at the Court, they will likely expose ideological fissures in the conservative legal movement that may unsettle those on both the right and the left. To understand why, consider what these lawsuits are actually about.
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.