May 6, 2009
The following story originally appeared in the September 2005 issue of The Atlantic during another time of flux for the Supreme Court.
I've been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O'Connor has announced her retirement, how many remaining justices have ever held elected office? How many have...
May 2, 2009
There was something of a disconnect between the April 29 oral arguments at the Supreme Court about the constitutionality of the Voting Rights Act's celebrated Section 5 and that provision's most important contemporary effect on the body politic.
The arguments, and the media coverage, focused on whether the South -- including the tiny Texas municipal utility district that brought the case -- and...
May 1, 2009
Editor's Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. -- Stuart...
April 25, 2009
"A democracy as resilient as ours must reject the false choice between our security and our ideals," President Obama said on April 16, "and that is why these methods of interrogation are already a thing of the past."
But is it really a false choice? It's certainly tempting to think so. The fashionable assumption that coercive interrogation (up to and including torture) never...
April 18, 2009
Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken...
April 11, 2009
Before 9/11, judges had no power to entertain writs of habeas corpus (petitions for release) by enemy fighters taken into custody by U.S. forces overseas.
Justice Robert Jackson spelled out this rule in a landmark 1950 decision, Johnson v. Eisentrager: "We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf...
April 4, 2009
"The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing.... One of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face.... I was then put into the tall black box for what I think was about one and a...
March 21, 2009
I don't know whether it would be good for employees, or for the country, if millions more were unionized, as will eventually occur if Congress passes the Obama-backed Employee Free Choice Act, now the subject of a titanic lobbying battle focused on a handful of moderate senators.
I am pretty sure that it has become unduly hard for workers to embrace collective bargaining if they choose, in part...
February 28, 2009
Dear Mr. Attorney General:
Your speech commemorating Black History Month by calling America "a nation of cowards" because we "do not talk enough with each other about race" -- a topic about which we talk incessantly -- was unworthy of the admirable public servant I believe you to be.
The speech was, as others have pointed out, embarrassingly misinformed, hackneyed, and devoid...
February 14, 2009
After many months of adoring media coverage and Democratic triumphalism, President Obama is now getting pasted by carnivorous columnists, angry activists, and House hotheads for every bow to bipartisanship, every deviation from liberal orthodoxy, and every tax-deficient nominee.
The problem is not that Obama is doing a bad job. For a new president beset with the most daunting combination of...
