Posted on Saturday, October 14, 2000

Legal Affairs – How Liberals Got Tired Of the Freedom Of Speech

by Stuart Taylor, Jr.

At the core of American freedom, wrote the late, great Justice William J. Brennan Jr. in 1964 in New York Times Co. vs. Sullivan, is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Attacks on private individuals are protected speech, too, as Brennan and his colleagues held in other decisions.

Posted on Saturday, October 7, 2000

Legal – The Vast Tobacco Antitrust Conspiracy-And How to Break It

by Stuart Taylor, Jr.

National Journal

Imagine the nation’s five biggest tobacco companies secretly arranging to milk consumers for billions in new profits by raising and fixing prices, colluding to maintain their respective market shares, and using carrots and sticks to get discounters and other small producers to raise their own prices enough to hold their combined market shares around 1 percent.

Posted on Monday, October 2, 2000

NewsHour: Supreme Court Politics – October 2, 2000

by Stuart Taylor, Jr.

RAY SUAREZ: For more on what’s at stake for the Supreme Court this presidential campaign we turn to two congressional spokesmen for the Bush and Gore campaigns: Republican Asa Hutchinson of Arkansas and Democrat Barney Frank of Massachusetts. They are both on the House Judiciary Committee.

Joining them are two Supreme Court watchers: Stuart Taylor, legal affairs correspondent for National Journal and Newsweek, and Anthony Lewis, a columnist with The New York Times. Representative Hutchinson, this is one of the longest periods of the stable membership of the court in American history. These nine men and women have been there for six years with no changes.

What should voters be thinking about this fall, as they consider who should be the next president and how that may change the court?

REP. ASA HUTCHINSON: Well, I think first they have to realize how significantly it could change the court — in the last term, I think there were 70 decisions, one-third of those were a 5-4 decision on a whole host of issues, from partial birth abortion to the case involving the Boy Scouts — 5-4 decisions.

And so if the next president would appoint one, two or three, then it could be a significant change in the tilt, the balance of the court. Governor Bush has indicated that he does not have any litmus test for those; he wants to make sure that they are well qualified, reflect his general philosophy.

If you look at his record in Texas, his appointees represent all walks of life. 50 percent of them were women and minorities. And so I think that’s how he would approach appointees to the United States Supreme Court.

RAY SUAREZ: And Congressman Frank, let me move to you, what would you ask voters to keep in mind about the makeup of the Supreme Court and who the next president will be?

Posted on Saturday, September 30, 2000

Legal Affairs – The Drift Toward Infanticide-And How RU-486 Can Help

by Stuart Taylor, Jr.

National Journal

National Journal

"A democratic vote by nine lawyers."

That was one of Justice Antonin Scalia’s angry dissenting flourishes last month. He was talking about the Supreme Court’s decision on "the pure policy question" of whether the procedure that opponents call "partial-birth" abortion should be banned-as hundreds of elected officials in 31 states had tried to do until five Justices swept their laws aside. In another case, Scalia likened the Court to "some sort of nine-headed Caesar."

Dear me, must the man quarrel so? Can’t he see that most of us find "strict constructionists" boring and semantical contortionists rather appealing, at least when they come down on our side?

But to give Scalia his due, that time of year has come when some of us who like many of the laws made by the Justices pause to wonder how their brand of judicial review squares with the Constitution’s guarantee of a "republican form of government," which once meant leaving most of the lawmaking to elected officials.

Were I a lawgiver, I might issue decrees similar to the Court’s on school prayer, affirmative action preferences, Miranda rights, abortion rights, pornographers’ rights, nude dancers’ rights, gay rights, parents’ (vs. grandparents’) rights, HMOs’ rights, patients’ rights, and states’ rights. The majority does sometimes veer too far to the left, or to the right, for my taste, as in the 5-4 ruling on June 28 that women have a virtually absolute right to abort even what Scalia calls "a live-and-kicking child that is almost entirely out of the womb." And in the line of 5-4 decisions exempting states from federal regulatory laws such as the Age Discrimination in Employment Act. But usually the Court seems fairly sensible. It’s not such a bad superlegislature, on the whole.