September 14, 2011
Beneath the thousands of pages of legal arguments in the health care lawsuits to be decided sooner-or-later by the Supreme Court lies an easier-to-grasp, if largely unarticulated, background question.
Can Congress and the president use an unprecedented and potentially limitless expansion of the power to regulate interstate commerce to avoid the political hazards of calling a tax a tax? Or might...
October 6, 2010
Some conservatives plausibly argue that Solicitor General Elena Kagan would be the kind of liberal activist justice that they deplore.
There is plenty of material to support that claim -- and also some material that cuts against it -- in the tens of thousands of pages of documents involving Kagan's work in the Clinton White House from 1995 to 1999 that are being released in batches.
And there...
September 20, 2010
Two conservative federal judges have now voiced cautiously sympathetic views on legal challenges to the 2,400-page health-care law that President Obama signed into law in March. But such preliminary skirmishes shed little light on whether the Supreme Court will in the end strike down the law, a law that raises a completely novel legal issue: can Congress require millions of individuals to buy a...
September 13, 2010
The federal court decision last Thursday holding unconstitutional the 1993 "don't ask, don't tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first. The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and...
July 14, 2010
Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?
And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race,...
June 28, 2010
Senate Judiciary Committee Chairman Patrick Leahy of Vermont and senior Republican Jeff Sessions of Alabama this afternoon set the broad themes of the committee's nomination of Solicitor General Elena Kagan to the Supreme Court in their opening statements.
While stressing Kagan's distinguished legal résumé—acclaimed Harvard Law School dean, first woman in that position, respected professor,...
June 28, 2010
Senate Judiciary Committee Chairman Patrick Leahy of Vermont and senior Republican Jeff Sessions of Alabama this afternoon set the broad themes of the committee's nomination of Solicitor General Elena Kagan to the Supreme Court in their opening statements.
While stressing Kagan's distinguished legal résumé—acclaimed Harvard Law School dean, first woman in that position, respected professor,...
June 21, 2010
With Solicitor General Elena Kagan's Supreme Court confirmation hearing due to start June 28, left-leaning skeptics worry that she may be more deferential to presidential war powers—at the expense of civil liberties—than retiring Justice John Paul Stevens.
It's true that in the future, the justices are likely to take the president's side more often than in the George W. Bush years. But if that...
June 1, 2010
The most forceful line of attack on Elena Kagan during the confirmation hearing that starts Monday will be that she showed an "anti-military" bent when, as Dean of Harvard Law School, she "defied" a federal law by denying to military recruiters the help that the school's Office of Career Services provided to other employers.
If senators and voters end up deciding that this is...
May 22, 2010
In 1966, the Supreme Court instructed police, in Miranda v. Arizona, to tell arrested suspects that "you have the right to remain silent." But, in fact, you don't.
Rather, police -- or more to the point of current debate, federal agents interrogating suspected terrorists -- can skip the famous Miranda warnings and even use some degree of coercion to extract a confession, all quite...
