Author Archives

Stuart Taylor, Jr.

Posted on

Opening Argument – A Different Way to Integrate Schools

by Stuart Taylor, Jr.

National Journal

Is the Supreme Court about to kill all hope of racially integrating public schools? You might think so, based on the reactions of civil-rights groups, editorial writers, and others to two cases argued before the justices on Monday. They involve programs adopted by school boards in the Louisville, Ky., area and Seattle to promote racial balance in their schools despite segregated housing patterns.

The five more-conservative justices seem poised to strike down both of these plans and to ban — or severely restrict — consideration of any student’s race in deciding what school he or she may attend. But the news is not all bad for those of us who share the four liberal justices’ sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.

There is another — perhaps better — way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students’ socioeconomic status in making school assignments and to give underprivileged students — who are disproportionately black or Hispanic — the opportunity to attend middle-class schools.

Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.

Posted on

Opening Argument – Global Warming: Time for a Court Order

by Stuart Taylor, Jr.

National Journal

The Supreme Court seemed split 4-4, with Justice Anthony Kennedy on the fence, during spirited arguments on Wednesday in a potentially momentous case on global warming. Memo to Kennedy’s law clerks: The justices should order the Bush administration to come to grips with the need to curb the emissions of carbon dioxide and other greenhouse gases that contribute to what could become catastrophic climate change.

This is not to deny that curbs on emissions might be futile and thus wasteful. The costs of achieving major reductions in the near term might be prohibitive. Meanwhile, soaring greenhouse-gas emissions in China, India, and other rapidly industrializing countries could swamp any government-mandated cuts in America.

But consider the alternative. If the government keeps temporizing on this issue, we may eventually see coastal cities under water, glaciers gone, arable lands turned into desert, massive extinctions of animal and plant species, more killer storms, and other disasters. More to the point for the justices, the Environmental Protection Agency’s head-in-the-sand, we-don’t-want-to-know posture about the dangers of global warming violates the Clean Air Act.

The Court need not decide how grave the danger is, how much should be invested in reducing emissions, or even whether EPA should regulate them at all. It need only require the agency to take its head out of the sand. Specifically, the plaintiffs — Massachusetts, 11 other states, some cities, and others — ask only that the justices order EPA to make an official, yes-or-no finding, after formal consideration, that answers this question: Are greenhouse gases a kind of air pollution that, by contributing to climate change, may — in the words of the Clean Air Act — "reasonably be anticipated to endanger public health or welfare"?

Posted on

Opening Argument – Michigan Voters Defy the Establishment

by Stuart Taylor, Jr.

National Journal

A November 7 ballot proposal in Michigan drew passionate attacks from the Democratic Party, Big Business, unions, universities, the major newspapers, and religious, civic, and civil-rights groups. It drew tepid opposition even from the state’s top Republicans.

Among the attacks:

•"The proposal could have remarkably negative effects on … breast cancer screenings [and] domestic-violence shelters for women," editorialized The Detroit News.

•"It will immediately eliminate opportunities for women and minorities to have equal access to jobs, education, and contracts in Michigan," said a flier highlighted on the Web site of One United Michigan, the major establishment opposition group.

•It would "give [the state’s] universities, its local governments, its counties, and its state bodies the right to discriminate against blacks, Latinos, and women in violation of our federally guaranteed equal-rights protections," said By Any Means Necessary, the shorthand name of a more radical opposition group.

What is this horrible monstrosity? And why did Michigan’s voters adopt it by 58 percent to 42 percent after a campaign in which opponents outspent supporters by 4-to-1?

The Michigan Civil Rights Initiative, as supporters call it, amends the state constitution by outlawing racial discrimination against Asians and whites — as well as against blacks and Hispanics — in certain public programs. This is what Congress thought it had done in the 1964 Civil Rights Act before the courts went to work on it.

Posted on

Witness for the Prosecution?

by Stuart Taylor, Jr

Slate.com

Imagine you are the world’s most powerful newspaper and you have invested your credibility in yet another story line that is falling apart, crumbling as inexorably as Jayson Blair’s fabrications and the flawed reporting on Saddam Hussein’s supposed WMD. What to do?

If you’re the New York Times and the story is the alleged gang rape of a black woman by three white Duke lacrosse players–a claim shown by mounting evidence to be almost certainly fraudulent–you tone down your rhetoric while doing your utmost to prop up a case that’s been almost wholly driven by prosecutorial and police misconduct.

And by bad journalism. Worse, perhaps, than the other recent Times embarrassments. The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent. This at a time when many other true believers in the rape charge, such as feminist law professor Susan Estrich, have at last seen through the prosecution’s fog of lies and distortions.

The Times took its stand in a 5,600-word, Page One reassessment of the case on Aug. 25, written by Duff Wilson, a sportswriter responsible for much of the paper’s previous one-sided coverage, and Jonathan Glater. The headline was “Files From Duke Rape Case Give Details But No Answers.”

Posted on

The Gitmo Fallout

by Michael Isikoff and Stuart Taylor, Jr.

Newsweek

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptab

David Bowker vividly remembers the first time he heard the phrase. A lawyer in the State Department, Bow-ker was part of a Bush administration "working group" assembled in the panicked aftermath of the September 11 attacks. Its task: figuring out what rights captured foreign fighters and terror suspects were entitled to while in U.S. custody. White House hard-liners, led by Vice President Dick Cheney and his uncompromising lawyer, David Addington, made it clear that there was only one acceptable answer. One day, Bowker recalls, a colleague explained the goal: to "find the legal equivalent of outer space"–a "lawless" universe.

As Bowker understood it, the idea was to create a system where detainees would have no legal rights and U.S courts would have no power to intervene.

Posted on

NewsHour: Analysis – Legal Experts Review High Court – July 3, 2006

by

MARGARET WARNER: It was the Supreme Court’s inaugural term under Chief Justice John Roberts, the first new chief in two decades. The blockbuster ruling of this term, involving presidential power in time of war, didn’t emerge until the final day last week.

But, before then, the court issued 68 decisions on legal controversies, ranging from political redistricting to physician-assisted suicide, and from the death penalty and other criminal law matters to military recruitment on college campuses. The term was notable, too, for the midway replacement of Justice Sandra Day O’Connor by new justice Samuel Alito.

We assess the term now with four longtime court watchers: in California, Douglas Kmiec, a professor of constitutional law at Pepperdine University Law School; and Kathleen Sullivan, director of the Constitutional Law Center at Stanford University and former dean of its law school; and, here in Washington: Stuart Taylor, a columnist for The Legal Times and senior writer for "National Journal" magazine; and Jeffrey Rosen, a law professor at George Washington University and legal affairs editor at "The New Republic," and, I should say, author of a new book as well about the courts.

Welcome to you all.

If this is the beginning of the Roberts’ era, Kathleen Sullivan, to what degree did he put a distinctive stamp on this court?

KATHLEEN SULLIVAN, Constitutional Law Center Director, Stanford University: Margaret, the term this year is best described as the Roberts conservative court in waiting. He was unable to put a clear stamp on the court in any new direction.

And let’s make no mistake about it. Chief Justice Roberts and Justice Alito are very conservative. Justice Alito voted with the conservative bloc 15 percent more of the time than Justice O’Connor, whom he replaced.

Posted on

Opening Argument – Supreme Confusion

by Stuart Taylor, Jr.

National Journal

"KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II — A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C.J., and ALITO, J., joined, an opinion with respect to Parts II — B and II — C, and an opinion with respect to Part II — D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C.J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C.J., and ALITO, J., joined as to Part III."

Thus concludes the nine-page summary ("syllabus") of the 132 pages of opinions — six in all, none winning the full assent of more than two justices — of the second big Supreme Court decision this week involving judicial superintendence of the political process.

This was the June 28 decision that rejected, 5-to-sort-of-4, a constitutional challenge to the Texas Legislature’s mid-decade partisan gerrymander of the state’s 32 congressional districts (holding No. 1) while ruling, by a differently constituted 5-to-4, that the Voting Rights Act requires redrawing one district to give it a Hispanic voting-age majority (holding No. 2).

Posted on

Opening Argument – Where’s the Outrage?

by Stuart Taylor, Jr.

National Journal

Back in 1998, when I was excoriating President Clinton for perjury and obstruction of justice, I had plenty of Republican company. This, my Republican friends and I agreed, was serious business.

But some Clinton-bashing conservatives have reacted rather differently to the alleged grand jury perjuries, lies to the FBI, and obstruction of justice for which I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, stands indicted.

These conservatives go beyond claiming that the evidence that Libby lied is weak — which is fair game, albeit unpersuasive (in my view) — to trivializing any cover-up as not very serious anyway. They remind me of the many Democrats who trivialized Clinton’s multiple perjuries and suborning of perjury as mere "lying about sex."

These days, the leader of the who-cares-about-perjury pack is The Wall Street Journal’s editorial page — the "Daily Diatribe of the American Right," as it was called in the headline of a 1989 American Lawyer piece (by me).

In 1998, The Journal saw criminal cover-ups — even of matters that were not themselves crimes — as a big deal. "The latest Clinton scandal involving Monica Lewinsky is titillating because of sex," The Journal editorialized then, "but it derives its legal and political importance from the issues of perjury and obstruction of justice."

Back then, other respected conservatives — Mary Matalin and William Kristol, for example — were even more emphatic about what Matalin called Clinton’s "perjury, suborning perjury, obstruction of justice, conspiracy." They have a far more dismissive view of the evidence of high-level lies underpinning the indictment of Libby and the near-indictment of Karl Rove.

Posted on

Opening Argument – How Racial Preferences Backfire

by Stuart Taylor, Jr.

National Journal

Most — if not all — of the nation’s leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white.

But these preferences are at best a mixed blessing — and are often a curse — for their recipients. After a year or two on the job, most minority associates at big firms get less desirable assignments and less training than their white counterparts. Many become discouraged and embittered. Young black lawyers leave big firms "at two or three times the rate of whites."

These problems plague minority lawyers precisely because of the racial preferences that got most of them hired. By lowering the big firms’ usual hiring standards, large preferences bring "disparities in expectations and performance that ultimately hurt the intended beneficiaries."

These are among the conclusions copiously documented by Richard Sander, a UCLA law professor, in a 66-page article soon to be published in the North Carolina Law Review. It is laden with meticulous statistical analyses of six publicly available data sets, including surveys of thousands of law students and lawyers at various stages in their lives and careers.

Sander’s blockbuster article, "The Racial Paradox of the Corporate Law Firm," rejects the conventional wisdom that racism explains why most young black lawyers in large firms do not fare well, and why barely 1 percent of big-firm partners — compared with 8 percent of new hires — are black.

Posted on

Opening Argument – Gay Marriage and the Estate Tax

by Stuart Taylor, Jr.

National Journal

President Bush and congressional Republicans have spent the past week rallying their base by flogging proposals on the issues headlined above that seem extreme and indefensible to many of us independents.

On gay marriage, the "Marriage Protection Amendment" that Bush is pushing would bar not only activist judges but also the people and their elected representatives from ever allowing gay couples to marry. So states where public opinion may someday come to favor same-sex marriage would find their hands tied by the Constitution. This from the party that purports to champion states’ prerogatives in matters of local concern.

On the estate tax, Republicans (and some conservative Democrats) want Congress to abolish all taxes on inherited wealth, to the point of encouraging people who never work to live high on vast, untaxed bequests. This from the party that purports to champion work incentives.

The whole gay-marriage/estate-tax show is mainly symbolic, of course. The Marriage Protection Amendment has no chance of adoption. And the campaign for complete abolition of the estate tax has little chance. But if there is poetic justice in this world, the Republicans’ revealing choice of symbols will backfire by spurring independent swing voters to sweep them from power.

Gay marriage. Many religious conservatives see homosexual acts as sins. And many other people fear that gay marriage would somehow harm an institution that has been a cornerstone of civilization for thousands of years.

I disagree. In particular, the notion that gay marriage would tempt straight and monogamous people to become gay or promiscuous seems far-fetched. So does the idea that gay marriage — which would move not a single child from a traditional household to a gay one — would be bad for children.