December 24, 2000
ON MONDAY, WHEN the Supreme Court heard arguments in Bush v. Gore, there was a sense in the courtroom that far more than the election was at stake. I ran into two of the most astute and fair-minded writers about the Court, who have spent years defending the institution against cynics who insist the justices are motivated by partisanship rather than reason. Both were visibly shaken by the Court's emergency stay of the manual recount in Florida; they felt naïve and betrayed by what appeared to be a naked act of political will.
Still His Party
August 07, 2000
The quest to venerate Ronald Reagan began ignominiously. In the early '90s, conservatives set out to convey Reagan's greatness to future generations by constructing a gleaming new government building in downtown Washington, D.C. But plans for the Ronald Reagan Building and International Trade Center went comically wrong. Construction ran hundreds of millions of dollars and several years over budget, and, once completed in 1998, the building was so manifestly useless that federal agencies had to be coaxed to move into it.
Talk Is Cheap
February 14, 2000
Supporters and opponents of campaign finance reform agree on little except for this: the compromise that the Supreme Court imposed on the nation 24 years ago in Buckley v. Valeo has collapsed. In Buckley, the Court held that Congress could regulate political contributions--that is, the money people donate to candidates--but not political expenditures--that is, the money candidates spend on themselves. The theory was that giving money to a candidate is not really a form of expression, while spending money to win an election is.
January 31, 2000
Last week, the Supreme Court heard arguments in a constitutional challenge to the Violence Against Women Act. On the same day, the justices announced that Congress lacks the power to authorize individuals to sue states for violating the Age Discrimination Act. Both cases show that the five conservative justices have started down the road toward a full-scale confrontation with Congress that has no logical stopping point.
Passing the Buckley
October 27, 1997
Buckley v. Valeo, the Supreme Court’s attempt to reconcile campaign finance regulations with the First Amendment, was dubious from the day it was decided in 1976. With memories of Watergate still fresh, the Burger Court assumed that preventing corruption of individual candidates by wealthy donors was the central evil that Congress had a right to avoid. But in the 1990s, the parties, rather than the plutocrats, became the stock villains of the reform drama.
One Bite At the Apple
February 03, 1997
At the Supreme Court arguments on Monday, January 13, in Clinton v. Jones, the justices seemed inclined to delay Paula Jones's sexual harassment suit until the president leaves office, because the president is a busy man. But even if President Clinton is temporarily spared the mortifying task of answering Jones's complaint, his trial in the court of popular opinion has already begun.
The Bloods and the Crits
December 09, 1996
During the past decade, an academic movement called critical race theory has gained increasing currency in the legal academy. Rejecting the achievements of the civil rights movement of the 1960s as epiphenomenal, critical race scholars argue that the dismantling of the apparatus of formal segregation failed to purge American society of its endemic racism, or to improve the social status of African Americans in discernible or lasting ways. The claim that these scholars make is not only political; it is also epistemological.
The Day the Quotas Died
April 26, 1996
Great Supreme Court decisions, for all their theatricality, are notoriously weak engines of social change. The commands of Brown v. Board of Education weren't implemented until decades later; Roe v. Wade confirmed a trend toward the liberalization of abortion laws that had been percolating in the states. But, a year after it was handed down, Adarand v. Pena is proving to be a startling exception. Like a boulder thrown into a placid pond, Adarand has been sending ripples through the lower courts in ways that are already transforming affirmative action as we know it.
The Color-Blind Court
July 31, 1995
The conservative justices are privately exuberant about the remarkable Supreme Court term that ended last week. Surprised and slightly dazed by the magnitude of their victory, they think they have finally exorcized the ghost of the Warren Court, fulfilled the goals of the conservative judicial revolution and vindicated the ideal of a color-blind Constitution for the first time since Reconstruction.
June 12, 1995
The Supreme Court struck down congressional term limits this week; and the surprising part of the 5-4 decision was not the wooden majority opinion by John Paul Stevens but the elastic dissent by Clarence Thomas. For the justices and their clerks, of course, rhetorical excesses are one of the pleasures of writing dissents, and shouldn't always be taken seriously.