AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term.
Yup, Rick Santorum went there. The former Pennsylvania senator, known for his less-than-enlightened views on gay rights, has opted for the “Some of my best friends…” approach. Earlier this week, when CNN’s Don Lemon asked him if he had any gay friends, Santorum replied enthusiastically: “Yes! In fact, I was with a gay friend of mine just two days ago. So, yeah, I do. And they respect that I have differences of opinion on that. I talk about these things in front of them, and we have conversations about it.
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.
Playing It Safe: How the Supreme Court Sidesteps Hard Cases and Stunts the Development of Law by Lisa Kloppenberg (New York University Press, 304 pp., $38) For many years, Israel's General Security Service has engaged in certain forms of physical coercion, reasonably described as torture, of suspected terrorists. Suspected terrorists have been repeatedly shaken, in a way that causes their heads and necks to dangle and to vacillate rapidly. They have been tied in chairs for long periods of time, their heads covered in opaque and foul-smelling sacks, while very loud music is played.
A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia (Princeton University Press, 159 pp., $19.95) Original Meanings: Politics and Ideas in the Making of the Constitution by Jack N. Rakove (Knopf, 420 pp., $35) We are all originalists now. That is to say, most judges and legal scholars who want to remain within the boundaries of respectable constitutional discourse agree that the original meaning of the Constitution and its amendments has some degree of pertinence to the question of what the Constitution means today.
Hugo Black: A Biography by Roger K. Newman (Pantheon, 741 pp., $30) On February 17, 1960, at New York University, Justice Hugo Black defended his judicial philosophy against the sneers of Felix Frankfurter and Learned Hand. "Some people regard the prohibitions of the Constitution ... as mere admonitions which Congress need not always observe," said Black in backhanded response to Hand's lectures at Harvard two years earlier. This approach, which "comes close to the English doctrine of legislative omnipotence," Black could not accept.
Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom by Ronald Dworkin (Knopf, 273 pp., $23) Liberals urgently need a constitutional philosophy, and Ronald Dworkin is eager to provide one. In his important writings over the past three decades, he has tried to work out a comprehensive theory of law, as well as a principled approach to the American Constitution. With few apologies, he has defended the Warren Court against a parade of conservative critics -- from the Burkean prudentialism of Alexander Bickel to the purported historicism of Robert Bork.