December 24, 2000
ON MONDAY, WHEN the Supreme Court heard arguments in Bush v. Gore, there was a sense in the courtroom that far more than the election was at stake. I ran into two of the most astute and fair-minded writers about the Court, who have spent years defending the institution against cynics who insist the justices are motivated by partisanship rather than reason. Both were visibly shaken by the Court's emergency stay of the manual recount in Florida; they felt naïve and betrayed by what appeared to be a naked act of political will.
Speed Kills Misjudge
November 27, 2000
It is January 5, 2001. The state of Florida has submitted two slates of electors to Congress, one for George W. Bush and one for Al Gore. To decide which to accept, Congress has appointed an electoral commission, composed of five senators, five representatives, and five Supreme Court justices. The commission is divided evenly along party lines, and the fate of the nation hangs on the mystical deliberations of the only undecided member, Justice Sandra Day O'Connor.
January 31, 2000
Last week, the Supreme Court heard arguments in a constitutional challenge to the Violence Against Women Act. On the same day, the justices announced that Congress lacks the power to authorize individuals to sue states for violating the Age Discrimination Act. Both cases show that the five conservative justices have started down the road toward a full-scale confrontation with Congress that has no logical stopping point.
The Age of Mixed Results
June 28, 1999
One Case at a Time: Judicial Minimalism on the Supreme Court by Cass R. Sunstein (Harvard University Press, 290 pp., $29.95) I. America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox.
The Day the Quotas Died
April 26, 1996
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.
The Color-Blind Court
July 31, 1995
The conservative justices are privately exuberant about the remarkable Supreme Court term that ended last week. Surprised and slightly dazed by the magnitude of their victory, they think they have finally exorcized the ghost of the Warren Court, fulfilled the goals of the conservative judicial revolution and vindicated the ideal of a color-blind Constitution for the first time since Reconstruction.
June 12, 1995
The Supreme Court struck down congressional term limits this week; and the surprising part of the 5-4 decision was not the wooden majority opinion by John Paul Stevens but the elastic dissent by Clarence Thomas. For the justices and their clerks, of course, rhetorical excesses are one of the pleasures of writing dissents, and shouldn't always be taken seriously.
May 16, 1994
Last week's j.e.b. decision should have been the dramatic highlight of an otherwise dull Supreme Court term, especially for those who have been waiting for Ruth Bader Ginsburg to find her voice. The outcome of the case, which forbids prosecutors from peremptorily excluding jurors on the basis of sex, was never really in doubt.
Sodom and Demurrer
November 29, 1993
Courtroom Three, on the second floor of the Denver City and County Building, is a neoclassical jewel, with its mustard walls and gray Vermont marble and polished oak backboard. It is a platonic ideal of a courtroom, which is perhaps why Viacom commandeered it in the mid-1980s to film several episodes of the new "Perry Mason." At the producers' behest, local architects installed a pair of ornate, but scarcely functional, beaux arts chandeliers; and their dim orange glow makes it hard for the judge to see the witnesses without squinting.
November 01, 1993
The lingering questions of the Thomas and Ginsburg hearings anxiously converged in a sexual harassment case before the Court this week. Can sexual banter in the workplace be punished if it offends women without affecting their job performance? And are men's and women's perspectives about sex so vastly different that women need special protection from the vulgarity of men?