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Stuart Taylor, Jr.

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Racism Marginalized — Even If Obama Loses

by Stuart Taylor, Jr.

National Journal

An African-American candidate with left-of-center views and less than four years in the Senate appears poised to win the presidential election over a seasoned white war hero who was until lately a media darling.

And Barack Obama’s favorability rating (53 percent favorable to 33 percent unfavorable) in a recent CBS News/New York Times poll was "the highest for a presidential candidate running for a first term in the last 28 years" of that poll.

There is much to celebrate in this, even for supporters of John McCain. Win or lose, Obama has proved (if more proof were needed) that although many blacks are still mired in poverty — a legacy of our racist history — contemporary white racism has been driven to the fringes and is no longer a serious impediment to black advancement.

So, is the racial-grievance crowd celebrating? Hardly. Instead, the obsessive search for ever-more-elusive evidence of widespread white racism and sneaky appeals to it goes on.

The McCain-Palin campaign has certainly showed an ugly side as its fortunes have faded. Examples include Sarah Palin’s recent suggestion that small towns were "the pro-America areas of this great nation," for which she has had to apologize; her earlier claim that Obama had been "palling around with terrorists"; and McCain’s warnings about Obama bringing "socialism" and "welfare." The mood of some lowlifes at McCain-Palin rallies has turned uglier still.

But the complaint that this shows that McCain and Palin are peddling "racist garbage" in code, as Harold Meyerson (to pick one example) wrote in the October 22 Washington Post, seems contrived.

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Opening Argument – When Fannie And Freddie Opened The Floodgates

by Stuart Taylor, Jr

National Journal

President Bush, his Securities and Exchange Commission appointees, other free-enterprise dogmatists who have stood in the way of regulating risky and opaque financial manipulations, and greedy Wall Streeters deserve the blame heaped on them for the financial meltdown that has so severely shaken America.

But the pretense of many Democrats that this crisis is altogether a Republican creation is simplistic and dangerous.

It is simplistic because Democrats have been a big part of the problem, in part by supporting governmental distortions of the marketplace through mortgage giants Fannie Mae and Freddie Mac, whose reckless lending practices necessitated a $200 billion government rescue last month. It is dangerous because misdiagnosing the causes of the crisis could lead both to regulatory overkill and to more reckless risk taking by Fannie, Freddie, or newly created government-sponsored enterprises.

Fannie and Freddie aside, it’s worth pointing out that many, if not most, of those greedy Wall Street barons are Democrats. And that the securities and investment industry has given more money to Democrats than to Republicans in this election cycle. And that opposing regulation of risky new financial practices by private investment banks and others has been a bipartisan enterprise, engaged in by the Clinton and Bush administrations alike.

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What’s At Stake: Supreme Court

by Stuart Taylor, Jr.

National Journal

The federal judiciary will become markedly more conservative if McCain wins and markedly more liberal if Obama does. This shift will affect the outcomes of cases involving a host of ideologically charged issues, including abortion; gay rights; affirmative action; the death penalty; the rights of suspected terrorists; gun control; property rights; the environment; regulation; and big-dollar lawsuits against business.

To woo conservatives who have long mistrusted him, McCain has bashed "activist judges" who "legislate from the bench." He has cited Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as his models of restraint.

Obama, who taught constitutional law at the University of Chicago, voted against the confirmations of Roberts and Alito, saying that they too often side with "the powerful against the powerless" and lack "empathy" for ordinary people.

The replacement of a retiring liberal justice by a conservative McCain appointee, or of a conservative by a liberal Obama appointee, could give the Supreme Court an ideologically solid majority for the first time in decades and gradually make a dramatic impact on the course of the law. That’s because the current Court is so closely — and deeply — divided. It has four liberals, four conservatives, and one justice (Anthony Kennedy) who swings depending on the issue.

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The Sound And Fury Behind The House’s Failure

by Stuart Taylor, Jr.

National Journal

It’s hard for a broken political system to fix a broken financial system. That’s one lesson of the failure of the House of Representatives — and of its members’ constituents — on Monday to put aside partisan bickering and muster the seriousness necessary to contain the economic damage that is spreading so fast as to threaten calamity.

The 228 no votes on the bipartisan rescue plan — cast mainly by the most conservative Republicans, the most liberal Democrats, and the members most vulnerable to voters’ misguided wrath — not only destroyed nearly $500 billion in shareholder equity between Monday morning and Wednesday night. It was also symptomatic of our society’s increasing polarization into warring conservative and liberal camps pervaded by ignorance of economic realities, misinformed ideological certitudes, and unwillingness to trust even the consensus judgment of Democratic and Republican leaders and their expert advisers.

The damage done both to the economy and to international confidence in our capacity for self-government will be lasting even if Congress passes something like the administration’s $700 billion rescue plan by the time this is published, and even if that spurs a stock market rally.

Some banks that could have been saved if the rescue plan had passed on Monday may well go under. And the foreign lenders who hold about half of America’s nearly $6 trillion in public debt will be looking harder for other places to park their money.

The deepest cause of this failure is that many, many voters are at once stunningly uninformed about public affairs and deluded by populist simplicities ranging from Republican Rep. Thaddeus McCotter’s perception of "Bolshevik" tendencies in the Bush administration’s rescue plan to many Democrats’ reluctance to save the financial system if doing so might possibly enrich some undeserving Wall Street fat cats.

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Opening Argument – Nine Justices, 10 Judicial Activists

by Stuart Taylor, Jr

National Journal

The Supreme Court has five liberal judicial activists.

It also has five conservative judicial activists.

By "judicial activism," I mean a willingness to aggrandize judicial power by striking down democratically adopted laws and policies, based on subjective value judgments with no clear basis in the Constitution’s text or history.

(Do I miscount? No. Justice Anthony Kennedy is liberal sometimes, conservative sometimes, and activist almost all of the time.)

The activist bent of all nine justices is illustrated by the aftermath of two of this year’s biggest decisions.

In the first, on June 25, a 5-4 liberal majority (including Kennedy) stretched constitutional interpretation past the breaking point to bar Louisiana and other states from punishing by death even the most vicious rapes of children. The Louisiana rape victim was an 8-year-old girl.

In the second decision, issued the next day, a 5-4 conservative majority (also including Kennedy) struck down the District of Columbia’s strict gun control law by holding for the first time that the hopelessly ambiguous, 217-year-old Second Amendment protects a broad individual right to "keep and bear arms."

The child-rape case is now back before the Court in the form of a rare petition for rehearing by the Louisiana district attorney who was on the losing end of the June 25 decision. Based on a glaring error in the majority opinion, the petition will be on the table at the justices’ private conference on September 29.

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Why Abortion Should Swing Few Votes

by Stuart Taylor, Jr.

National Journal

Gov. Sarah Palin’s opposition to legal abortion — even in cases of rape and incest — has given the issue new prominence. Passionate abortion foes are enthused. Passionate abortion-rights supporters are horrified.

But most voters probably won’t give the abortion issue decisive weight in choosing between John McCain and Barack Obama. And for good reason. Both political parties embrace unpopular, immoderately absolutist positions on the issue, although McCain has flirted with moderation in the past.

And even though one or more of the five Supreme Court justices who clearly support abortion rights may well retire in the next four years, neither party is likely to succeed in making it a lot harder — or a lot easier — for most women to get abortions.

Polls show that a large majority of Americans reject both Palin’s uncompromising anti-abortion vision and the Republican platform’s extreme call for banning all abortions and all embryonic-stem-cell research. Most also oppose overruling Roe v. Wade.

But most voters don’t agree with Obama’s absolutist abortion-rights record, either. Obama would make it easier for women to get abortions; most voters would make it harder. Obama would require the federal government to fund abortions for poor women; most voters oppose that. And Obama’s record as an Illinois state senator can be read as suggesting that he may have a more sweeping vision of abortion rights than any of his current Senate colleagues have.

Would a McCain-Palin victory spell doom for Roe v. Wade and constitutional protection of abortion rights? It’s an outside possibility, but I’d bet a lot against it.

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Supreme Trivia Quiz

by Stuart Taylor, Jr.

National Journal

Elsewhere in this issue I discuss how the outcome of the presidential election might affect the Supreme Court’s future. Below is a midsummer trivia quiz on the Court’s richly quotable past.

Some quotes are by justices, others are about them or the Constitution. Award yourself 1 point for identifying the author of a quote; 2 more for naming the case or the author’s written work (where applicable); and, for Nos. 20-25, add 3 degree-of-difficulty bonus points for naming the author. A perfect score is 81. A score of 42 qualifies you as a Supreme Court expert. Answers are at the end.

1. "I know it when I see it."

2. "If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

3. "A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens."

4. "John, who the hell is … the guy dressed like a clown?"

5. "Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, ‘uncontradicted’ legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions."

6. "Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance."

7. "Yes, two, and they are both sitting on the Supreme Court."

8. "The life of the law has not been logic; it has been experience."

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In the Balance

by Stuart Taylor, Jr.

National Journal

Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.

McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and essentially vowed to move the Court sharply to the right in judicial philosophy.

The presumptive Republican nominee has identified Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as models.

Obama, who voted against both men during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.

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Barbarians on the Bench?

by Stuart Taylor, Jr.

National Journal

At the Supreme Court, the right-wingers are always up to no good, and almost always in charge. Or so it seems to the sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times‘ editorial page.

A new wrinkle in this summer’s assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens. Beyond that, even Barack Obama, who has one of the most liberal voting records in the Senate, was somehow seduced into siding with conservative Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts in two big cases.

To explain, let’s examine a July 3 Times editorial, "A Supreme Court on the Brink." It began by lamenting "highly conservative rulings on subjects like voting rights and gun control"; the former showed that the Court had "abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter-ID law," and the latter will add to gun violence by recognizing a right to keep guns for self-defense at home. The editorial went on to decry the "cold-hearted decision" allowing Kentucky to use a particular lethal injection method to execute capital murderers and the decision reducing to a $500 million "pittance" the $2.5 billion punitive damages award against ExxonMobil for the 1989 Exxon Valdez oil spill. The main bright spots, the editorial noted, were the Court’s "third rebuke to the Bush administration on Guantanamo" and the decision striking down the six state laws that made the most vicious rapists of children eligible for the death penalty.

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Opening Argument – Is Judicial Review Obsolete?

by Stuart Taylor, Jr

National Journal

The big decision on June 26 that the Second Amendment protects an individual right to keep a loaded handgun for self-defense at home is the high-water mark of the "original meaning" approach to constitutional interpretation championed by Justice Antonin Scalia and many other conservatives. At the same time, the decision may show "originalism" to be a false promise.

Scalia’s 64-page opinion for the five-justice majority was a tour de force of originalist analysis. With-out pausing to ask whether gun rights is good policy, Scalia parsed the Second Amendment’s 27 words one by one while consulting 18th-century dictionaries, early American history, the 1689 English Bill of Rights, 19th-century treatises, and other historical material.

And even the lead dissent for the Court’s four liberals–who are accustomed to deep-sixing original meaning on issues ranging from the death penalty to abortion, gay rights, and many others–all but conceded that this case should turn mainly on the original meaning of the 217-year-old Second Amendment. They had little choice, given the unusual absence of binding precedent.

But in another sense, District of Columbia v. Heller belies the two great advantages that originalism has been touted as having over the liberals’ "living Constitution" approach. Originalism is supposed to supply first principles that will prevent justices from merely voting their policy preferences and to foster what Judge Robert Bork once called "deference to democratic choice." But the gun case suggests that originalism does neither.

First, even though all nine justices claimed to be following original meaning, they split angrily along liberal-conservative lines perfectly matching their apparent policy preferences, with the four conservatives (plus swing-voting Anthony Kennedy) voting for gun rights and the four liberals against.