Antonin Scalia believes in the Devil, suspects some of his friends are homosexual, and thinks that ladies who use the "F-word" are sadly symptomatic of a coarsened culture. Those are just a couple of the more entertaining details from a brilliantly conducted interview with Scalia by Jennifer Senior of New York magazine.
One of the most remarked-upon aspects of the upcoming Supreme Court challenge to California’s gay-marriage ban is the odd couple leading the charge: Ted Olson and David Boies, the conservative and liberal superlawyers who squared off in 2000 in Bush v. Gore. Much less is known, however, about the old friendship between Olson and their opponent in this case, Charles Cooper, one of the many lawyers who helped Olson on Bush v. Gore. Cooper and Olson are both part of Washington’s tiny tribe of top-flight conservative litigators. Given their similar resumes, it is odd to find them on opposite sides of one of the most politically contentious Supreme Court cases of the 21st century. When Olson and Cooper face off before the court in late March, they’ll not only be debating gay rights, but the nature of conservatism itself.Cooper, known in Washington as “Chuck,” is from Alabama, and he’s best known for his starched French-cuffed shirts and genteel southern formality. His way of speaking, once described by Washington Post columnist Mary McGrory as “Victorian copy book prose,” can come across as impressive or a little unctuous, depending on the listener. If Olson, who also has a flair for oral arguments, is the lawyer who argues before the court this spring, he and Cooper will be evenly matched.
Would a decision invalidating the Affordable Care Act, in part or in whole, damage the Court's legitimacy? As I wrote on Friday, I'm among those who thinks the answer is "yes," although I was thinking primarily in the moral, substantive sense of the word. In other words, such a poorly reasoned, narrowly won decision should erode the Court's authority. You have to go back almost a century, to the cases of the Lochner era, to find examples of the Supreme Court doing something as audacious as it seems to be contemplating now.
With a Republican-controlled House demanding large cuts in present and future spending in exchange for an increase in the debt ceiling, the possibility that the federal government will have trouble financing and issuing new debt is becoming more frighteningly likely each day. Treasury Secretary Tim Geithner, CBO chief Doug Elmendorf, and Federal Reserve Chairman Ben Bernanke have all encouraged Congress in strong terms to resolve the debt ceiling stand-off before the creditworthiness of the United States is jeopardized.
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.
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 April 18, 2010. Supreme Court retirements inevitably produce much more coverage of process than substance. The press is dominated by political rather than legal reporters. Politics is also more familiar and therefore more accessible to the public than are court decisions. The irony is that this attention to process is not very meaningful—at least at this stage, when there is no nominee.
I. Moments after Justice John Paul Stevens announced his intention to retire from the Supreme Court, Republican senators warned President Barack Obama not to appoint a judicial activist to replace him. Senator Orrin Hatch promised Obama “a whale of a fight if he appoints an activist to the court” and Senator Mitch McConnell warned that “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law." But Hatch and McConnell’s definition of “judicial activism” is topsy-turvy.
At the end of June, the Supreme Court issued three decisions repudiating the Bush administration's demand that the courts stay out of the war on terrorism. The decisions were simultaneously lauded as an example of judicial restraint and excoriated as the activism of an imperial judiciary. Cass R.