Category Archives: National Journal

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Legal Affairs – Bush vs. Gore: A First Draft For the Justices to Consider

by Stuart Taylor, Jr.

National Journal

Dear Mr. Chief Justice: I offer below a first draft of an opinion for your consideration. It stresses that no court has the constitutional power to pass final judgment on a dispute over who won a presidential election and that the Florida Supreme Court’s decision of Nov. 21-which concocted new vote-counting rules after the election-is binding neither on the Florida Legislature nor on Congress. The bottom line is that this virtual tie between Bush and Gore presents a political question on which the Constitution gives the last word to the people’s elected representatives, not to judges seeking to divine "the will of the people" by squinting to see almost-invisible dimples. Please forgive the footnotes, which I include for fun and with no illusion that they belong in any opinion for the Court.-Volunteer Clerk

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Legal Affairs – It’s About More Than Which Judge Has the Last Word

by Stuart Taylor, Jr.

National Journal

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought," wrote Oliver Wendell Holmes Jr., one of our greatest judges. A Kennedy Administration lawyer offered that quote a long time ago to square the language of the U.N. Charter with the U.S. naval blockade of Cuba in 1962. In the charter, the United States had undertaken a solemn obligation to renounce "the threat or use of force" except in "self-defense" against "armed attack." It took some fancy lawyering to classify unfired Soviet missiles in Cuba as an "armed attack." But it seemed a bad idea to wait for someone to fire them.

This may seem to digress from the topic du jour. But bear with me. Much as I might like to predict or opine who should be our next President, I don’t have a clue, and it may be all over when you read this. So this is an opportune time to stand back from the cacophony of lawyers, spinners, anchors, protesters, professors, and Palm Beach partisans. To get past the perishable pensees of the pundits (present company included), whose "characteristic flaw has been to exaggerate the importance of whatever is being pundited about," as Wall Street Journal pundit Holman Jenkins observes. To stop bouncing among skirmishes and survey the battlefield from above, as one might from a hot-air balloon. (Oops. Unfortunate simile. Make that a weather satellite, or a B-2 bomber.)

What brings Holmes to mind is the striking unhelpfulness of the words in our constitutions, statute books, and judicial precedents as a guide through our current constitutional conundrum, or crisis, or whatever. This at a time when "the selection of the American President is now dependent on a bewildering array of small judgment calls by local ballot examiners and big decisions by judges and state officials about whether they should be heeded," in the words of The Wall Street Journal.

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Politics – How Lawyers And Pols Can Get Us Out of This Mess

by Stuart Taylor, Jr.

National Journal

The inescapable fact is that no matter how many recounts or lawsuits we have, we will never know who would have won this election if it had been run perfectly. There are irregularities all over the place, by the thousands, in every national election. A fraction of them come to light. A fraction of that fraction can be proven. These anomalies range from outrageous to trifling. The rules distinguishing the ones that are just tough luck from the ones that courts will redress are necessarily somewhat arbitrary. It will always be thus.

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Legal Affairs – Dumb and Dumber: Courts and EPA Regulators

by Stuart Taylor, Jr.

National Journal

On Election Day the Supreme Court will hear arguments in one of its biggest cases in years. It’s arcane and complex. But you might want to know something about it anyway, because it could affect your respiratory system, your risk of getting skin cancer or cataracts, the view from your office, the jobs of industrial workers, and the prices of cars, electric power, and lots of other stuff.

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Legal Affairs – Election 2000: The Case for Partisan Gridlock

by Stuart Taylor, Jr.

National Journal

Would you like to see the estate tax repealed so that more people will be so flush with family money that they will never need to work? How about spending $100 billion or more on an easily circumvented missile shield that would wreak havoc with arms control? Or securing major cutbacks in federal environmental laws? Or speeding up executions of accused murderers without bothering to give them fair trials? Or returning to huge budget deficits? Then you should be rooting both for George W. Bush and for solid Republican majorities in Congress.

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Legal Affairs – The Issue Politicians Are Ignoring: 2 Million Prisoners

by Stuart Taylor, Jr.

National Journal

The good news is that crime is no longer the divisive issue it used to be in national politics, which is why Al Gore and George W. Bush haven’t been arguing about it. The bad news is the reason: Gore and most other Democrats have aped Republicans in demanding ever-longer prison terms, not only for the violent career criminals who should be behind bars, but also for small-time, nonviolent drug offenders and others who present no real threat to society.

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

by Stuart Taylor, Jr.

National Journal

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.

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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.

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

by Stuart Taylor, Jr.

National Journal

The abortion-rights lobby has not yet publicly embraced the view of Peter Singer, a Princeton University bioethicist, that because "the fetus does not have the same claim to life as a person, it appears that the newborn baby does not either." Or that "killing a disabled infant is not morally equivalent to killing a person [and] often it is not wrong at all." Or that "the life of a newborn baby is of less value … than the life of a pig, a dog, or a chimpanzee." Or that "a period of 28 days after birth might be allowed before an infant is accepted as having the same right to live as others."