Vacuity and Farce
May 21, 2010
The Supreme Court is divided into two blocs, as hostile and immutable as NATO and the Warsaw Pact. In the middle of the two blocs sits Anthony Kennedy, a Yugoslavia-like figure who tilts toward one bloc but has demonstrated significant independence. When and how the delicate balance of power will be broken rests upon two questions: First, will one of the four liberals get sick and die during a Republican presidency before one of the four conservatives gets sick and dies during a Democratic presidency?
The Left’s John Roberts
May 13, 2010
WASHINGTON— Brace yourself for several months of occasionally biting but essentially meaningless political theater over the nomination of Solicitor General Elena Kagan to the Supreme Court. Underlying the fight will be a fundamental divide between liberals and conservatives over the direction of the court. Thus, many senators who supported Chief Justice John Roberts and Justice Samuel Alito will oppose Kagan, while most who were against Roberts and Alito will be for her. The irony is that the surface similarities between Roberts and Kagan are breathtaking.
The Ten Biggest Issues Elena Kagan Will Face
May 09, 2010
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog, where this piece was originally posted. Here is how I think the nomination process is likely to play out. I divide it into process and substance. First, the process: Note the relationship between Monday’s announcement and the Senate calendar. There are seven weeks between Monday and June 28.
May 03, 2010
Miguel Estrada seemed to be a shoo-in for the federal bench. Nominated by George W. Bush to the D.C. Circuit Court of Appeals in 2001 when he was just 39, Estrada was born in Honduras. He arrived in the United States as a teenager speaking little English and went on to graduate from Harvard Law School and clerk for Supreme Court Justice Anthony Kennedy. He then worked at Wachtell, Lipton, Rosen & Katz, arguably the most prestigious law firm in the nation, and, later, as an Assistant U.S.
The Next Justice
April 09, 2010
Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog. A version of this piece was originally posted there on February 23, 2010. When Justice Stevens retires, what happens then? There will be a pretty efficient process. The White House will receive significant pressure from both the right and left, all of which it will basically ignore. Conservatives will want to use the Court as a rallying point for their base for the 2010 midterm elections and beyond.
The Stevens Myth
April 07, 2010
Legal circles have been abuzz for the last eight months with the news that Justice John Paul Stevens had hired only one law clerk to begin working this summer. This move, Supreme Court watchers observed, strongly suggested that Stevens’s thirty-fifth term at the Court would be his last. As journalists and scholars begin contemplating his place in history, Stevens himself has not-so-subtly attempted to burnish his judicial legacy. In a series of interviews over the last few years, Stevens has repeatedly attempted to portray his views as fundamentally unaltered since he joined the Court.
POTUS v. SCOTUS
March 16, 2010
Barack Obama is gunning for a confrontation with the Supreme Court, and Chief Justice John Roberts has signaled that he welcomes the fight. Last week, the chief justice described the president’s State of the Union condemnation of the Citizens United decision as “very troubling” and complained that the speech had “degenerated to a political pep rally.” Roberts was making an argument about etiquette--dissent was fine, he said, but Obama had somehow transgressed the boundaries of civilized discourse by delivering his attack to a captive audience.
Promises, Promises, Promises
March 10, 2010
In a recent TNR article about the Citizens United decision, “Roberts versus Roberts,” I argued that the chief justice has so far failed to achieve his goal of promoting narrow, unanimous decisions rather than ideologically polarizing ones. After the piece came out, Ed Whelan claimed that Roberts had never promised to try to lead the Court in such a fashion.
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.