Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.
And Now… the Supremes!
by Stuart Taylor, Jr.
After all, this is the nation’s ultimate judicial tribunal," Justice Felix Frankfurter once said of the Supreme Court.
Not anymore, it isn’t. Comes now a Washington Post survey revealing that the nation’s ultimate tribunal is Judge Joseph Wapner’s "People’s Court."
The numbers speak starkly: 54 percent of 1,005 randomly selected adults named Wapner when asked who presides over "The People’s Court," a television show that boasts more than 8 million viewers every weekday. Only 9 percent could name the chief justice of the United States, William Rehnquist. And when those surveyed were asked to list all the justices they could, only the first woman justice, Sandra Day O’Connor, broke out of single digits. She still lagged badly behind Judge Wapner.
In this country, recognition is power-and signs of the Court’s decline and demoralization are everywhere.
Justice Thurgood Marshall spends his afternoons chuckling over episodes of "The People’s Court" rather than slogging through the tedium of his own Court’s business, according to Time magazine. Rumor has it that many incoming Supreme Court law clerks are vying for clerkships with Wapner and will jump ship if he takes them.
And with everyone from President George Bush to the civil-rights lobby trashing recent Court decisions and pushing Congress to overrule them, we can see the justices’ authority draining like air from a leaky tire.
Just last week we had the spectacle of Bush whooping for a first amendment to the First Amendment in order to overturn the ruling that made the world safe for flag burners. Democrats in Congress are striving for parity in pandering to the public by proposing a new statute against flag desecration.
Wapner for Chief
Now the Court Has Gone Too Far
by Stuart Taylor, Jr.
The Supreme Court’s three major, 5-4 discrimination rulings this month seem to reflect an unarticulated notion that the most serious problems of civil-rights law facing America today are the legal harassment of employers and the oppression of white males.
Justice Byron White’s choice of words in his June 5 opinion for the 5-4 majority in Wards Cove Packing Co. v. Atonio was suggestive. While blandly acknowledging the "unfortunate" problem of discrimination against non- whites in our society, he lamented the "host of evils" caused by legal rules that spur employers to adopt quota systems and discriminate in favor of minorities.
Our legal and political systems have, in fact, spawned enough "reverse discrimination" and enough groundless discrimination suits by minorities and women against innocent employers to justify some concern and perhaps some corrective action on the Court’s part. The refusal of many liberals to acknowledge that these problems exist helps explain the shrillness of their attacks on the Court’s good faith.
In this sense, the Court’s new conservative majority may have been seeking to move the law in a healthy direction. But they have moved it way too far.
Legal rules are such crude instruments for affecting human conduct that those aimed at foreclosing the possibility of reverse discrimination will, inevitably, also have the effect of denying redress to many victims of the more pervasive discrimination that still confronts minorities and women.
In groping for the right balance, the new majority seems to proceed from a skewed perspective: that discrimination against white males has become a problem of the same magnitude as the discrimination, present and past, that has denied to millions of blacks any real opportunity to participate fully in American life.
Legal Corruption, Congress Style
by Stuart Taylor, Jr.
The petty ethical transgressions that finally brought down House Speaker Jim Wright last week are a pimple on the nose of a body politic racked by the cancers of legalized corruption, moral laxity, and political cowardice.
Lancing the pimple does nothing to cure the cancers. Indeed, the unseemly haste with which Wright (D-Texas) was hustled overboard is one symptom of the political cowardice of many of his colleagues who are themselves steeped in the legalized corruption of honoraria, free trips, and campaign contributions from monied interests. They hope that the ravening beast of media fascination with the seamy side of congressional ethics can be sated by the ritual sacrifice of the speaker, along with the self-immolation of House Democratic Whip Tony Coelho (Calif.), the fund-raising prodigy who impaled himself on a messy $50,000 junk-bond investment.
But only those who cannot see the forest for the trees find anything uniquely shocking in Wright’s ventures down the slippery slope of sleaze.
The purging of the speaker and any others alleged to have violated the ethical rules will have been a largely empty and hypocritical exercise unless Congress does something about the kinds of graft that the rules allow.
As a legal matter, the case against Wright is quite weak on the main charge of violating House standards by taking $145,000 in alleged gifts (his Wife’s salary and the use of a condominium and a car) from his friend George Mallick, a Fort Worth developer, between 1979 and 1988, The rules bar acceptance of large gifts only from those with a more "direct interest in legislation" than Mallick seems to have had by virtue of his oil, gas, and real-estate investments. Distasteful as it may be for a House speaker and his wife to have a sugar daddy, there is no clear evidence that Wright ever used his influence to enrich Mallick.
Swing Vote on the Constitution
by Stuart Taylor, Jr
THE SUPREME COURT IS ON THE BENCH, hearing argument on whether it should overturn Roe v. Wade. The chanting of the crowds outside does not penetrate here. The lawyer at the lectern is defending Roe’s recognition of an absolute right to abort fetal life before viability. Through history, he says, "this was always the line chosen, whether it was called quickening or viability, there is little difference, timewise."
Justice Sandra Day O’Connor leans forward in her chair. "Well, there is a difference, is there not, in those two?" she asks. At common law, she notes, quickening was "when the fetus was first felt by the mother."
"A kick, yes, absolutely, approximately two or three weeks before what we would consider viability today," responds the lawyer, Frank Susman of St. Louis.
And the only justice who has ever felt that kick settles back in her chair, betraying no clue how she will vote.
With the Supreme Court poised between moderate pragmatism and conservative counterrevolution, Justice O’Connor, 59, has become its ideological center of gravity. She is strategically situated to channel the course of constitutional law-not only on abortion, but also on affirmative action, sex discrimination, church-state issues, use of the death penalty for teenage killers, and more.
Thomas Henderson
by Stuart Taylor, Jr
Asbestos. Agent Orange. Dalkon Shield. DES. Bendectin. Copper-7. Atomic waste. Love Canal. Bhopal.
A tidal wave of mass toxic tort litigation began stirring in the seventies and swept violently through the eighties. It clogged courts, bankrupted billion-dollar companies like Manville Corporation and A.H. Robins Company, Incorporated, sent shudders through corporate America and the insurance industry, enriched legions of lawyers, fueled talk of a "litigation explosion" and juries gone mad with million-dollar verdicts. It spawned debate about whether the tort system can fairly compensate toxic injuries-or any injuries-and inspired proposals to reform the system or even scrap it.
But before these cases began to unsettle the legal system and capture the imaginations of tort reformers, asbestos, the Dalkon Shield, and other products had ravaged the lungs, reproductive organs, and other tissues of thousands of Americans.
That was where the contingent-fee lawyers came in-lawyers like Thomas Henderson of Pittsburgh, a serious, intensely competitive steel-worker’s son known as a tough negotiator and a doggedly determined litigator. He has been a major player in the multibillion-dollar asbestos litigation and had a significant role in the last few frantic months of the mammoth Agent Orange class action, which seven major chemical companies settled for a record $180 million in 1984. And he, as much as anyone, is emblematic of the new breed of plaintiffs lawyers that have put the big toxic tort cases together over the past 15 years. His career illuminates the mix of skills and strategies it has taken to rise to the top of the mass toxic tort field-as well as the rewards these cases offer and the issues of public policy that they raise.
Daily Diatribe of the American Right
by Stuart Taylor, Jr
WHEN GEORGE BUSH BEGAN POUNDING Michael Dukakis this summer for his 1977 veto of legislation requiring Massachusetts teachers to lead students in the Pledge of Allegiance, the conservative hardliners at The Walt Street Journal’s editorial page watched with satisfaction. When Dukakis issued a belated and legalistic response, they pounced.
The honors were done by L. Gordon Crovitz, a mildspoken law graduate of both Oxford (on a Rhodes Scholarship) and Yale of alternately brooding and cherubic appearance, who has become at the age of 30 the voice of the editorial page on legal issues ranging from the Irancontra affair to the parol evidence rule. He has also become the most conspicuous polemicist for the hardedged neoconservative approach to law that has fueled the growth of the Federalist Society in law schools and Washington power circles; President Ronald Reagan quoted him by name on December 13. He is an articulate and vitriolic scourge of liberals, "judicial activists," Congress, "vigilante" special prosecutors, plaintiffs lawyers, the American Civil Liberties Union, the Securities and Exchange Commission, and others. His causes include a quasimonarchical vision of presidential power, getting the judiciary out of the constables’ hair and into the deregulation of business, and turning back the clock of the common Jaw about 30 years.
Rehnquist’s Court: Tuning Out The White House
by Stuart Taylor, Jr
CHIEF JUSTICE WILLIAM HUBBS REHNQUIST stared stonily out at the crowd in the marble-columned chamber from the Supreme Court’s center chair, the chair in which Ronald Reagan had put him two years before. It was June 29, the last day of the Court’s 1987-88 term, and one decision remained to be handed down – the big one.
"Number 87-1279," the Chief Justice began. Methodically, he summarized the background of this momentous challenge to the Federal independent prosecutor law, brought by the Administration and by former top Reagan aides caught in the law’s toils. The Watergate-inspired law – which provides for a special court to appoint prosecutors independent of the executive branch to investigate alleged crimes by top Federal officials – stood as an affront to the sweeping, unfettered vision of Presidential power that has become part of today’s conservative political creed. Administration conservatives hated it with a burning passion. Now Rehnquist, their choice for Chief Justice, was announcing the Court’s opinion, making it clear that he had written it himself.
Finally, he reached the question on which his audience hung. "We now reverse the Court of Appeals in an opinion joined by seven members of the Court," he said, "and uphold the validity of the independent counsel provisions of the Ethics in Government Act."
Meese v. Brennan
by Stuart Taylor, Jr
An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists, is a chameleon jurisprudence, changing color and form in each era.
The Constitution… is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made… the people will have ceased to be their own rulers.
The Court… has improperly set itself up as… a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there… We want a Supreme Court which will do justice under the Constitution – not over it.
SOUNDS LIKE Ed Meese, doesn’t it? Well, the first quotation is the attorney general’s. But the second comes from Thomas Jefferson, the third from Abraham Lincoln, and the fourth from Franklin D. Roosevelt. When Meese assails government by judiciary, he is in good company.
Meese has denounced major Supreme Court rulings of the past 60 years and called for judges to look to "the original meaning of constitutional provisions" as "the only reliable guide for judgment." No attorney general in the past four decades has set out so deliberately to reduce the power of the judiciary or to screen the ideological credentials of new appointees.
Ethics and The Law: A Case History
by Stuart Taylor, Jr
In a third-floor corridor of the Federal District Court on Manhattan’s Foley Square, one afternoon last month, a tall, bespectacled man looking no more than his 36 years stood talking with friends, nervously drawing on a cigarette. Myron S. Goodman had, over the course of the 1970’s, been the mastermind behind the meteoric growth of the multimillion-dollar O.P.M. Leasing Services Inc. He had become a leading figure in the computer-leasing field and an extravagant philanthropist. Now, together with his partner and brother-in-law, Mordecai Weissman, Goodman was to appear before Judge Charles S. Haight Jr. for sentencing in one of the most massive corporate frauds in American history. Goodman and Weissman had pleaded guilty to defrauding banks and other lenders of more than $210 million before their company went bankrupt in 1981. Along the way, they had hoodwinked some of the nation’s largest and most prestigious companies, including Rockwell International, American Express, Chase Manhattan Bank and Lehman Brothers Kuhn Loeb.
Just before 4:30, Goodman stubbed out his cigarette and entered the cluttered, high-ceilinged courtroom, where he proceeded to promise the judge: ”The wrongs I have done are behind me.” But when the sentences were pronounced, they were tough: 12 years in prison for Goodman, 10 years for Weissman. The judge had not been moved by Goodman’s promise, which had a familiar ring for some in the courtroom.
Over his years as O.P.M.’s executive vice president, Goodman had made the same promise again and again, sometimes in tears, to the group of men who served as the company’s attorneys. And over the years, they had believed him – or, at least, they had acted as though they believed him – while they carried out his directions. As a result, their firm, Singer Hutner Levine & Seeman, has been accused by some lenders of complicity in the leasing company’s fraud.
Too Much Justice
by Stuart Taylor, Jr
I believe that justice was done. Justice is a process, not a particular result.
– Alan M. Dershowitz, Harvard law professor, commenting on the jury verdict finding John W. Hinckley, Jr., not guilty by reason of insanity when he shot President Reagan.
I do not think nobody knows what was within his head that day.
– Woodrow Johnson, parking-lot attendant, one of the Hinckley jurors, commenting on what he learned from the eight-week trial to establish what was in Hinckley’s head that day.
GUISEPPE ZANGARA climbed on a chair at Bayfront Park in Miami on February 15, 1933, and fired five shots at an open car in which President-elect Franklin D. Roosevelt was talking with Chicago mayor Anton Cermak. He missed Roosevelt but hit Cermak, who died on March 6. Zan-gara’s motive, arguably the product of an insane mind, was that "since my stomach hurt, I get even with capitalists by kill the president." He was indicted for murder the day Cermak died, pleaded guilty, and was electrocuted two weeks later, complaining that there was "no one here to take my picture."
Forty-nine years later, on their second day of deliberations, the twelve jurors assigned to decide the guilt or innocence of John Hinckley, who had gunned down President Reagan and three others to win fame and to impress a movie actress, sent the judge a note, asking for a dictionary. They wanted ëto find out for ourselves, was all poetry fiction," the jury foreman, a twenty-two-year-old hotel-banquet worker named Lawrence H. Coffey, explained later to a subcommittee of gaping senators. Thus the jurors hoped to resolve a long, tangential debate between a defense lawyer, who interpreted Hinckley’s practice of scrawling morbid and bizarre images on notebook paper as proof of his insanity, and a prosecution psychiatrist, who dismissed Hinckley’s versified maunderings as "fiction."