In the passing convulsions of partisan government, it’s easy for our corporate lieges to depict themselves as victims. There’s always some legislative push, or Congressional leader, to bedeck with alarmist rhetoric about the “tax-and-spend” set in Washington—even as these same clever professional victims harness the supine Congress to tamp down the estate tax, extend regressive tax cuts and ensure that the regulatory state keeps weighing the financial industry’s various roulette wheels in the house’s favor.
But behind the all the public inveighing over the wild-eyed excesses of our Jacobin Congress and (more laughably still) an "anti-business" White House, our business chieftains are, true to management form, pursuing [...]
Today, New York Times op-ed columnist Ross Douthat weighs in on the "controversial power grabs" of the liberal Supreme Court, though he notes that "right-wingers, too, have grown accustomed to turning to the Court." The court overturns laws far too frequently, he says. "Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it's overturned more than 80." He figures that a "super-majority" can't reasonably be enabled for court decisions, so what about the next best thing: term limits to curb all this activism!
"Perhaps," Ezra Klein wrote last week, "the Supreme Court will surprise us on this one"—meaning the Court might not overturn the part of the Affordable Care Act that would require nearly all Americans to maintain at least some amount of healthcare insurance. "But if they don’t, I think the right question will be why so few in the legal academy saw it coming."
The list of constitutional law scholars who have stated publicly that the individual mandate is constitutional includes some of the most famous legal minds in the nation. Laurence Tribe. Kathleen Sullivan. Ronald Dworkin. Lawrence Lessig.
Five weeks ago, Casey Greenfield published a piece in the Daily Beast about the Supreme Court, FDR and Obama, drawing from Jeff Shesol's Supreme Power. This week, so did Jeffrey Toobin, in the New Yorker. Greenfield is the woman who is not Toobin's wife who is raising the baby she had with him. While their approach and language differs, they come to some of the same conclusions, and even find an identical supporting quote.
All of a sudden Supreme Court judge Antonin Scalia decided to revive the crazymaking debate regarding the Fourteenth Amendment's protection for women—or, apparently, lack thereof. Here is what Justice Scalia told California Lawyer: "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't…. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a [...]
A well-chewed bit of conventional wisdom holds that cultural conflagrations find no better accelerant than a Supreme Court opinion. Under this theory, smoldering social divisions explode into Samuel Pepys territory when the Court short circuits the democratic process and moves definitively to settle a social issue. Exhibit A is typically Roe v. Wade, which, in attempting to remove abortion from the realm of political controversy, instead visited upon us several decades of incessant yelling and pictorial craziness (think sonograms, bloody fetuses and snowflake babies).