Supreme Court

Count Down
November 26, 2001

Now that a consortium of major newspapers has reported that George W. Bush would have won the Florida recount, his legitimacy is supposedly beyond dispute. "Even Gore partisans," asserts a Wall Street Journal editorial, "now have to admit that the former Vice President was not denied a legitimate victory by the Supreme Court." And this conclusion is not confined to Bush's amen corner. "The comprehensive review of the uncounted Florida ballots solidifies George W. Bush's legal claim to the White House," chimes in The New York Times. So Bush is now a legitimate president, right?

Not Deciding
October 29, 2001

Playing It Safe: How the Supreme Court Sidesteps Hard Cases and Stunts the Development of Law by Lisa Kloppenberg (New York University Press, 304 pp., $38) For many years, Israel's General Security Service has engaged in certain forms of physical coercion, reasonably described as torture, of suspected terrorists. Suspected terrorists have been repeatedly shaken, in a way that causes their heads and necks to dangle and to vacillate rapidly. They have been tied in chairs for long periods of time, their heads covered in opaque and foul-smelling sacks, while very loud music is played.

The Right Thing
October 08, 2001

I. Schools, Vouchers and the American Public by Terry M.

Outside in
October 08, 2001

Rescue workers were still combing through the wreckage of the World Trade Center when stern voices arose to caution us that the war against our attackers will not only challenge America's military resolve but also test its democracy at home. "[A] number of government agencies and their cheerleaders would be clearly tempted to lock the Bill of Rights away in some basement dustbin of the National Archives," The American Prospect warned on its website. Which agencies? Which cheerleaders? The editorial didn't say, though elsewhere the magazine published musings about "a systematic breakdown of res

Chamber Music
September 10, 2001

Federal judges are about to make a crucial decision on workplace privacy, but you won't read about it in a court opinion. On September 11, the Judicial Conference of the United States, the organization with ultimate authority over the internal operation of the federal courts, will decide whether to approve or dismantle a computer program that monitors judges and their staff members when they use the Internet on the job.

July 09, 2001

I may be a winner! The Supreme Court held this week that The New York Times violated my rights when it published four freelance op-ed pieces of mine between 1986 and 1995 and then sent them to Lexis-Nexis, the electronic database, without my permission.

Bench Press
June 18, 2001

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.

Without Merit
May 14, 2001

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.

Federal Offense
April 09, 2001

Last week, the Supreme Court held that a Circuit City employee in California who claimed he had suffered race discrimination couldn't sue the electronics dealer under the state's antidiscrimination law. When he'd applied for the job, the employee had agreed to resolve employment disputes through arbitration. And last week the five conservative justices announced that the Federal Arbitration Act of 1925 requires judges to enforce arbitration agreements even when they conflict with state law.

Religious Rights
February 26, 2001

At the end of January, President Bush signed an executive order removing impediments to charitable choice, which allows religious as well as secular organizations to administer federal social service programs. In the mid-'90s, when an aide to then-Senator John Ashcroft first proposed charitable choice, its opponents claimed it was an unconstitutional merger of church and state. But today most of them, thankfully, have abandoned that argument.