Lewis Powell

The Washington Post columnist William Raspberry, who died today at 76, is remembered as being relentlessly moderate, but Supreme Court Justice Lewis Powell didn’t view him that way. In his famous “Powell memorandum,” a 1971 memo Powell wrote, shortly before his 1971 Court appointment, to a friend working at the U.S. Chamber of Commerce, Powell urged American business to unite in political opposition to what Powell perceived as the growing influence of “Communists, New Leftists, and other revolutionaries” on mainstream political discourse.

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The Washington Post columnist William Raspberry, who died today at 76, is remembered as being relentlessly moderate, but Supreme Court Justice Lewis Powell didn't view him that way. In his famous "Powell memorandum," a 1971 memo Powell wrote, shortly before his 1971 Court appointment, to a friend working at the U.S. Chamber of Commerce, Powell urged American business to unite in political opposition to what Powell perceived as the growing influence of "Communists, New Leftists, and other revolutionaries" on mainstream political discourse.

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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.

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Robust and Wide-Open

Justice Brennan: Liberal Champion By Seth Stern and Stephen Wermiel (Houghton Mifflin Harcourt, 674 pp., $35)   In September 1956, when the eminently forgettable Justice Sherman Minton announced his retirement from the Supreme Court, President Eisenhower’s motivation in selecting a replacement stemmed less from legal considerations than from political calculations. With the upcoming presidential election just weeks away, he instructed Attorney General Herbert Brownell Jr. to locate a nominee who, in addition to being younger than sixty-two, was both a Catholic and a Democrat.

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Bottoms Up

Moments after President Bush announced the nomination of John Roberts to the Supreme Court, liberal interest groups were attacking Roberts as a conservative ideologue. "In reality John Roberts may be a hard-nosed extremist with a soft conservative facade," wrote the Leadership Conference on Civil Rights.

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Light Footprint

In the months leading up to the Supreme Court decision on affirmative action, it was hard not to feel a sense of dread. At other great moments of constitutional drama—the decision to reaffirm Roe in 1992 and to settle the presidential election of 2000—the justices had allowed an inflated sense of their own importance to distort their judgment and compromise their reasoning.

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Without Merit

In my criminal procedure class this year, we tried to decide whether a driver who has been pulled over by the police because of his race has suffered a constitutional injury. "The problem isn't being pulled over," said one African American student. "It's what happens after. You have to do this step-'n'-fetch-it routine, showing that you're subordinate to the officer, to make sure he won't arrest you. Even if the officer is black, it's incredibly degrading." The comment changed the way the class and I thought about the constitutionality of racial profiling.

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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.

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James Q. Wilson argues the controversial effects of affirmative action in this article from July, 1996.

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On September 7 Deval Patrick, the assistant attorney general for civil rights, filed a brief in a New Jersey case arguing that it is legal to fire a white teacher over a black teacher purely because of her race. And on August 19 a federal district judge in Austin, Texas, held that aspects of the affirmative action program at the University of Texas law school are unconstitutional. One or both of the cases may reach the Supreme Court before long. Each on its own could revive the debate about racial preferences and ventilate their more troubling assumptions.

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