November 24, 2011
Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones. But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C.
It's Not A Duel, It's A Three-way
October 12, 2011
Now that the Night of the Roundtable is behind us, the primary campaign is moving into the phase when money and ads will matter more than Jon Huntsman's curious sense of humor or Michelle Bachmann's numerology.
July 28, 2011
The Supreme Court has included good writers and bad writers during the past two centuries, but the literarily challenged justices have always had a comfortable majority. In the Court’s early days, one of its clumsiest writers was Samuel Chase, who, in addition to being impeached for excessive partisanship, had a weakness for random italics.
Disorder in the Court
June 23, 2011
In April 2000, a Vermont musician named Diana Levine went to the hospital with a migraine. There, a nurse incorrectly injected Phenergan, an anti-nausea drug, into her vein rather than her muscle. This led to gangrene and, eventually, the amputation of much of her right arm. Levine sued and won more than $6 million from a Vermont jury, which concluded that Wyeth, the drug company, had failed to warn her properly about the risks of the drug.
May 11, 2011
Richmond, Virginia, may be the heart of the old confederacy. But it’s also the place where the federal government eventually indicted Jefferson Davis for treason. A plaque commemorating that event sits outside the entrance to the Fourth Circuit Court of Appeals—an omen for what transpired inside the courthouse on Tuesday, where three judges considered a pair of lawsuits from Virginians challenging an abuse of federal authority. The alleged abuse in this case is the individual mandate of the Affordable Care Act (ACA). The other, more significant omen was the selection of the judges.
[Guest post by Chloe Schama:] Last week, the Supreme Court heard oral arguments for a class-action case that NPR called “the largest sex discrimination lawsuit in U.S. history.” The description is actually a bit misleading: From a legal standpoint, the issue in Dukes v. Wal-Mart is standing: whether or not hundreds of thousands of women—upon whose behalf former Wal-Mart employee Betty Dukes had filed the case—could band together and sue for damages. Or, as Richard Thompson Ford put it in Slate, “[W]hat’s at stake in Dukes v.
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.
Is Kagan Obama's Last Justice?
August 06, 2010
The margins for confirming Supreme Court Justices are getting tighter: Though it confirmed her Thursday as the newest justice by a 63-37 vote, Kagan has the dubious distinction of receiving one of the lowest total of “yes” votes for a nominee during the past three presidencies — and the lowest number of confirmation votes ever for a justice picked by a Democrat. Kagan’s meager tally is five fewer than Sonia Sotomayor last year, 15 fewer than John Roberts got in 2005 and pales in comparison to the 96-3 coronation of Ruth Bader Ginsburg in 1993.
One of the supposed knocks against Elizabeth Warren is that she’s an ideological crusader bent on destroying capitalism as we know it. If she were to lead the new consumer protection agency, she could do serious harm to the country. But Charles Fried disagrees. Fried, who spoke to TNR this afternoon, is one of Warren's colleagues at Harvard Law School. He also served as solicitor general under Ronald Reagan and openly supported the nominations of John Roberts and Samuel Alito to the Supreme Court. In other words, he's a bona fide conservative.
Ceding the Court
July 05, 2010
Washington—Here's when you know something momentous has happened to our struggle over the Supreme Court's role: When Republicans largely give up talking about "judicial activism," when liberals speak of the importance of democracy and deference to elected officials, and when judges are no longer seen as baseball umpires. All these things transpired during Elena Kagan's confirmation hearings before the Senate Judiciary Committee last week, though you might not know that unless you saw some of the most thoughtful blogs or news stories.