Analysis and Commentary on Politics

Newt Gingrich Is Right That Judicial Supremacy Has Been Challenged Before, but Wrong to Try to Turn Back the Clock

Justia columnist and Cornell law professor Michael C. Dorf takes strong issue with presidential candidate Newt Gingrich’s comments regarding judicial supremacy. In particular, Dorf explains, Gingrich has suggested that federal judges could be summoned—even by force—to explain their decisions before Congress, and that Supreme Court Justices and lower federal court judges with whose opinions Gingrich disagrees ought to be impeached. Dorf explains that, as Gingrich states, there have indeed been times in American history when judicial supremacy—which holds that all other government actors must act as if bound by the rulings of the Supreme Court—has been controversial. However, Dorf contends, Gingrich—in suggesting that we revert to those times—fails to appreciate how and why the courts’ role has evolved over the course of American history up to the present, and, worse, puts forth a dangerous proposition.

Why Girls Under Seventeen Need a Prescription to Buy the Morning After Pill

Justia columnist and Cornell law professor Sherry Colb comments on regulations regarding the “morning after pill,” a form of emergency contraception that is only available by prescription to girls under seventeen—despite a recent recommendation by the U.S. Food and Drug Administration that it be made available over the counter (OTC) to girls of that age. The Secretary of the U.S. Department of Health and Human Services (HHS), Kathleen Sebelius, overruled the recommendation, but was she right to do so? Colb explains how the morning after pill works; explains how the brains of young girls differ from those of older girls and women; offers a hypothetical to illustrate what may happen if young girls cannot access the OTC morning after pill; considers whether parents’ interests should come into play here; discusses the argument that this kind of OTC contraception is a form of abortion and its relevance or lack thereof; and expresses deep disappointment if this decision by the Obama Administration was at base a political choice.

Whatever Happened to Making an Honest Buck? Wall Street Attacks Elizabeth Warren Because She Believes in Capitalism More Than They Do

Justia columnist, George Washington law professor, and economist Neil Buchanan discusses the issues raised by the candidacy of Harvard Law professor Elizabeth Warren, who is running for a Massachusetts Senate seat. Buchanan’s thesis is that Warren is more truly a capitalist than her opponent, Republican Scott Brown, or the voters and commentators who oppose her. In particular, Buchanan notes that Warren—an advocate of transparency in financial transactions; an architect of the Consumer Financial Protection Bureau; and an advisor to President Obama on financial industry issues—is a true advocate of free markets. The reason her opponents claim otherwise, Buchanan argues, is that they are confusing being pro-free market with being blindly pro-business, no matter what evils business interests may perpetrate. Being truly in favor of the free market, he contends, means that one ought to endorse—as Warren does—the principle that both sides need to be well-informed when they transact business. That kind of free-market thinking, he points out, might have stemmed or prevented the mortgage loan crisis.

An Endless War on Terror

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the aggressive new War on Terror bills currently pending in Congress. With Osama Bin Laden dead and all the living alleged 9/11 perpetrators in custody awaiting trial, Mariner notes that the bills’ timing seems odd. She also contrasts the long-lasting War on Terror with the events of the post-World-War-Two period in American history. If the bills that are pending pass, she explains, they will go significantly beyond prior War on Terror policies, which were already broad to begin with. Mariner describes the bills as dangerous and irresponsible, and points to the irony that Congress can make bipartisan compromises in the fraught area of counterterrorism, but not when it comes to sorely needed economic measures. If the bills pass, Mariner reports, they will essentially make Guantanamo permanent, embrace detention without trial—which had previously been seen as un-American—and make the military the presumptive detaining and prosecuting authority in certain categories of cases. Mariner points out that even the Bush Administration tried and convicted many terrorism suspects in federal court, rather than resorting to military justice. Finally, she expresses hope that President Obama will veto the bills, as he has threatened to do.

The Republican Dream for the 2012 Presidential Election: Control of the U.S. Supreme Court

Justia columnist and former counsel to the president John W. Dean discusses a less-remarked but extremely important aspect of the 2012 presidential race: Its outcome may exert a profound influence on the composition of the U.S. Supreme Court, if the Republican candidate prevails. As Dean explains, with Justice Ruth Bader Ginsburg approaching her eighties, and having experienced some health issues, Republicans foresee her possible retirement from the Court. And, if a Republican President were to be elected in 2012, and Ginsburg were indeed to retire, then that President would have a chance to create a solid conservative majority on the Court. Dean describes the Court’s current composition, and contends that if a conservative were indeed to take Justice Ginsburg’s (or another moderate or progressive Justice’s) spot, that would create a majority that would be not only conservative, but also radical and fundamentalist in its conservatism. Such a majority, Dean notes, would put the Court far out of step with Americans’ views. Indeed, Dean predicts, drawing in part on the work of Martin Garbus, that a conservative majority could even take America back to a pre-New Deal world—and one where long-established rights are abolished or severely compromised. He thus urges even the most unhappy former Obama supporter to think seriously about the fate of the Supreme Court when casting his or her vote.

An Unfortunate Potential Situation for the Occupy Wall Street Movement

Justia columnist and former counsel to the president John Dean comments on the Occupy Wall Street movement, in light of his own experience with Vietnam War protests. During the war, Dean initially served as an associate deputy attorney general at the Justice Department, often acting as a mediator between the protesters and the government. Later, he served as Counsel to President Nixon and as the Nixon Administration’s top anti-war protest intelligence analyst. While Dean applauds and supports today’s Occupy Wall Street movement, he warns that the movement may encounter some of the same problems that the Vietnam War protesters faced. In particular, Dean observes that the Occupy Wall Street movement is likely to grow in size and duration. Indeed, he contends that—since the problems the Occupy Wall Street movement decries cannot be solved by a single action, such as ending a war—the movement’s duration has the potential to exceed that of the Vietnam War protests. Dean also regretfully predicts that the Occupy Wall Street movement will inevitably lead to violence, despite the fact that the overwhelming majority of the members of the movement absolutely do not want violence. Finally, Dean notes that today’s much faster communications technology may lead to a faster escalation toward violence, if violence does occur, than happened in the past. Thus, he concludes the challenge for the movement is to keep any violence that occurs isolated and contained.

Thoughts on the Politics of the Sexual Harassment Charges Against Herman Cain

Justia columnist and former counsel to the president John Dean comments on the political aspect of the ongoing scandal regarding allegations of sexual harassment by presidential candidate Herman Cain. Dean notes that Cain’s initial, ineffective response to the allegations was to stonewall, but that he rapidly switched strategies and commented on the allegations. This second strategy, Dean notes, was also ineffective. Dean characterizes Cain’s current strategy as a mix of two strategies used by other public figures: Supreme Court Justice Clarence Thomas and California Governor Arnold Schwarzenegger (when he was a candidate). Dean notes that Thomas attacked the messenger and impugned her motive, while denying the charges against him, despite the strong evidence supporting them. In contrast, he explains, Schwarzenegger—when his behavior toward women (including groping) became a campaign issue—half-apologized to the women at issue, and enlisted his wife’s aid in restoring his reputation. Dean believes Cain is now hoping the story will go away, but predicts that—to the contrary—the story will play out as long as Cain is a viable candidate, and until it finds its consequences. Cain, Dean suggests, will seem to be winning over the scandal at first, before a media-hating public, but will lose out in the end, due to a combination of the scandal and an otherwise very poorly run campaign.

Gaming American Democracy: Recent, Unprecedented Republican Obstructionism and Abuse of the Senate’s Rules

Justia columnist and former counsel to the president John Dean continues his ongoing series examining the new techniques that are being employed by Republicans to alter the political landscape. In this column, Dean contends that due to Republicans’ tactics, the U.S. Senate no longer operates as our nation’s founders intended. He cites specific examples of the kind of obstructionism that has allowed Republicans to thwart majority will—such as their refusing to allow Democrats’ witnesses to testify based on technicalities; putting “holds” on judicial and executive nominees and on bills; and misusing the filibuster. Dean also takes strong issue with the news media for reporting on such Republican tactics as if they were simply business as usual.

Assessing Mitt Romney as a 2012 Presidential Candidate: Part Four in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her series on religion and the likely 2012 presidential candidates. This week, Hamilton considers Mitt Romney. To begin, Hamilton comments on Romney’s seeming unease about the history of polygamy of the Church of Jesus Christ of Latter-Day Saints (also known as the LDS Church), in which he has been a religious leader. Hamilton also compares Romney’s speech on how his religion would, and would not, affect his possible future presidency with the similar speech given by JFK regarding his Catholicism and his own possible future presidency—noting interesting differences in the stances taken by JFK and Romney, respectively. Hamilton also considers other aspects of Romney’s record—such as his questionable civil rights record, and certain instances where, she argues, he welcomed the exercise of federal power, even as he claimed to embrace states’ rights, such as when federal measures regarding same-sex marriage and federal healthcare money were at issue. In addition, she notes that Romney’s record on abortion is cryptic, and features some flip-flopping, leaving his true beliefs essentially unknown.

An Upcoming Case About Israel, Jerusalem, and Presidential Power Offers the Supreme Court the Chance to Clarify the Rules About “Political Questions”

Justia columnist and U.C. Davis law professor Vikram David Amar comments on a case that the Supreme Court will take up this November. As he explains, the case potentially raises thorny questions regarding two important topics: (1) the relationship between Congress and the President with respect to American foreign policy in the Middle East; and (2) the power (or lack of power) of federal courts to weigh in on such matters, pursuant to the Court’s “political question” doctrine. The case, MBZ v. Clinton (that is, Secretary of State Hillary Clinton), involves a 2002 law passed by Congress that, among other things, requires the Secretary of State, upon the request of a citizen or the citizen’s legal guardian, to record the place of birth for U.S. citizens born in the city of Jerusalem “as Israel.” President Bush signed the law into effect, but issued a signing statement to disclaim the legal effect of part of the law he was signing—on the ground that forcing the State Department to record Jerusalem births as being in Israel would impermissibly interfere with the President’s constitutional power to formulate and speak on behalf of American foreign policy. The plaintiffs in the M.B.Z. lawsuit seek to force the executive branch to follow the terms of the statute, notwithstanding the signing statement’s disclaimer. Whether they can do so, Amar explains, depends on whether the case at issue triggers the political question doctrine, under which there are some questions on which even the U.S. Supreme Court cannot rule, on the ground that they are properly resolved by one of the U.S. government’s political branches, rather than by the Court.

Gaming American Democracy: A Perfect Storm in Which Republicans Disenfranchise Voters While Giving Corporations Unchecked Powers

Justia columnist and former counsel to the president John Dean continues his series of columns on the new techniques being employed by Republicans to alter the political landscape. In this column, Dean notes that some public attention was paid to these tactics after the controversy regarding Governor Scott Walker and Wisconsin unions, but also emphasizes that other tactics are even now being played out behind closed doors. In particular, Dean focuses on the activities of the American Legislative Exchange Council (ALEC), a very powerful corporate lobby, whose members include over 2,400 conservative state lawmakers. Dean explains that the 2010 elections proved to be a perfect storm for ALEC and its conservative partners, and—relying in part on strong reportage from Mother Jones, The Nation, and Rolling Stone—Dean details some of ALEC’s activities (such as supplying pre-cooked McBills for state legislators to pass), and some of its funding influences. Dean expresses particular concern over ALEC’s activities that aim to limit the ability of some Americans to vote, which President Clinton has decried.

Military Commissions Resurgent

Justia columnist and Hunter Human Rights Program Director Joanne Mariner comments upon the return of military commissions, which she describes as the latest in a string of victories for congressional Republicans who seek to bring back Bush-era “war on terror” policies—while seeking not only to keep Guantanamo open, but also to increase the number of persons detained there. Mariner argues that the Obama Administration ought to fight hard against such compromises of rights, but notes that it is not clear yet whether the Administration will take that stance. As Mariner explains, the test case here, which may signal the Administration’s future approach, is that of Lebanese citizen and alleged Hezbollah commander Ali Mussa Daqduq, who has been detained for crimes against U.S. military personnel in Iraq. Mariner contends that the federal courts, not military commissions, are the proper place to try terrorism suspects—with a strong record, under which (1) not a single genuine terrorist escaped conviction, and (2) the federal courts’ sentences generally proved to be longer than the military commissions' sentences.

How Much Is Truly at Stake in the Legal Battle Over Obamacare?

Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.

Gaming American Democracy: How New Republican Techniques Seek to Change the Political System Itself

Justia columnist and former counsel to the president John Dean begins a new series of columns on current Republican political strategies and approaches. Dean describes what is happening now as the return of Nixonian politics, on steroids, and he contends that today, Republican operatives are employing strategies to empower themselves that would never succeed at the ballot box if voters fully understood what was occurring. Dean notes that this attempt to transform our political system is receiving little news coverage, and offer some reasons why, including Americans’ disinterest in “process” issues and the fact that mainstream news organizations are largely controlled by highly profit-driven major corporations, and those companies’ executives often lean toward Republican views. Dean focuses, especially, on the role of the Tea Party, which he describes as “the tip of the conservative iceberg” now, while also contending that the real story is not about the Tea Party, but about other, more mainstream Republicans who are in power today, and their political strategies.

Assessing Michele Bachmann as a 2012 Presidential Candidate: Part Three in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her ongoing series about the 2012 presidential candidates and their views on religion. In this column, Hamilton considers the views of Congresswoman Michele Bachmann. Hamilton contends that a Bachmann presidency would likely be dominated by evangelical Christianity, and notes that Bachmann sees the separation of church and state as “a myth” and would likely nominate to the federal judiciary only those who share her views. Moreover, Hamilton argues that Bachmann’s religious views would, if she were elected, also influence her foreign policy (which she has suggested would be automatically pro-Israel on religious grounds) and her policies on social issues such as abortion, stem-cell research, the HPV vaccine, and gay rights. Hamilton also notes that although Bachmann claims to support states’ rights, in practice she supports federal action if one of the policies that she herself favors is at issue.

A Decade of 9/11

Justia columnist and Hunter Human Rights Program Director Joanne Mariner suggests an answer to the following question: Ten years after the terrorist attacks that were said to have “changed everything,” what has actually changed in the protection of human rights, and how did these changes take place? Mariner isolates five distinct periods of government policy, as it has evolved over the post-9/11 years: (1) the directly post-9/11 era of unchecked abuses (especially by the CIA), which was sparked by the post-9/11 Bush Administration claim that the U.S. was waging a war on terror; (2) the era of retrenchment and reassertion, when the Bush Administration was put on the defensive; (3) the attempt, during the last years of the Bush Administration, to establish a legal foundation for its “war on terror” actions; (4) the initial, but short-lived, Obama Administration push to reverse the Bush Administration's approaches; and (5) the current Obama Administration policy era—when, Mariner contends, because President Obama has a more liberal image and generally more liberal politics, he can not only adopt certain abusive policies, but he can also normalize them in a way that President Bush never could have done.

The Fight Over Alabama’s Immigration Law Features Increasingly Estranged Allies: Conservative Populists Versus Big Business

Justia columnist and Cornell law professor Michael Dorf examines the way in which an Alabama immigration law—which would place the state in the role of enforcer of federal immigration laws—illustrates a schism that may be growing between two conservative constituencies: populists and corporatists. Dorf illustrates his point about the schism by reference to the controversies over the Troubled Assets Relief Program (TARP) and over immigration, which have split the Republican Party. He also asks if populist conservatives and business conservatives can ever truly get along—and notes ways in which the Supreme Court has been surprisingly supportive of the populists.

Assessing Former U.S. Senator Rick Santorum as a 2012 Presidential Candidate: Part Two in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns on the 2012 presidential candidates’ views on religion, with an analysis of the views of Rick Santorum, a former U.S. Senator from Pennsylvania. Hamilton critiques Santorum for failing to respect the Constitution’s separation of church and state, and for expressing support for states’ rights while also endorsing federal legislation that would displace state power, when it comes to certain policies he favors.

An End to La Dolce Vita for Italian MPs? How a Menu, Social Networking, and Budget Woes May Lead to Much-Needed Reforms

Justia columnist and U. Washington law professor Anita Ramasastry focuses on a scandal that shows how posts on social networking sites may lead to much-needed reforms. As Ramasastry explains, the Facebook page of an anonymous person who goes by “Spider Truman” has played a key role in focusing public attention on the lavish lives of Italian Members of Parliament (MPs), and their alleged corruption. With Italy now in a severe financial crisis, disclosures on the site of “Spider Truman” concerning MPs’ many perks and alleged misconduct have enraged many, Ramasastry points out. Examples include the MPs’ menu of gourmet food at heavily subsidized prices, and their alleged fraudulent expense claims. Noting that UK MPs previously were part of a similar scandal that led to reform, Ramasastry contends that social networking may be a catalyst for greater governmental openness in Italy and elsewhere.

What Obama Should Say to the Nation

Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more