To paraphrase Mark Twain, nearly everybody (everybody except conservative ideologues, of course) complains about rich people and big corporations bankrolling our campaigns, but hardly anybody seems to be doing anything about it.
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.
Laurence Tribe of Harvard Law School has an op-ed in the New York Times that carries the headline, “On Health Care, Justice Will Prevail.” It’s true to the content of the article, which predicts that the Affordable Care Act will survive constitutional challenges. But I’m not sure Tribe fully believes that. In fact, the whole article reads to me like a warning to the justices of the Supreme Court—one, I certainly hope, they will heed. The case against the Act’s individual mandate, Tribe suggests, is incredibly weak.
Now that they control the Senate, some Democrats want to treat George W. Bush's judicial nominees as badly as Republicans treated Bill Clinton's. Senate Republicans repeatedly distorted the records of Clinton's nominees to the federal appellate courts, painting judicial moderates as judicial activists and denying them hearings. While Ronald Reagan and Clinton appointed similar numbers of appellate judges, 87 percent of Reagan's nominees were confirmed, compared with only 61 percent of Clinton's.
"It is either impeachment or nothing," Gary McDowell, the conservative legal scholar, told the House Judiciary Committee on November 9. "Thus, the current suggestion that Congress might censure the president is to assume a power not given by our Constitution." Many of the scholars who testified during the opening hearing of the House impeachment inquiry agreed with McDowell, but they were overstating the case against censure.
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.
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.