Stephen B. Presser

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The Struggle for the Soul of the Supreme Court
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The Struggle for the Soul of the Supreme Court

During Joe Biden’s 2020 campaign for president, when his fortunes were at their nadir, Joe Biden promised that he would nominate the first black woman to the United States Supreme Court. He reportedly made this pledge to James Clyburn (D-S.C.), the powerful African-American congressman, in return for Clyburn’s help in securing the black vote in...

What We Are Reading: February 2022
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What We Are Reading: February 2022

What makes a great novelist? Genius—the ability to see connections hidden from most of us—obviously helps, but if great novels are great commentaries on the human condition, then living in a rich, stimulating, and challenging environment may also be essential.   A.N. Wilson’s brilliantly unorthodox literary biography of Iris Murdoch—perhaps the greatest novelist writing in...

What We Are Reading: July 2021
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What We Are Reading: July 2021

This extraordinary tome proposes a cure for our cultural illness: the resurgence of the muscular Christianity that once permeated higher education. The success of Fulton Brown’s project is far from assured, but in this essay collection she embraces the task with zealous ecstasy. The book is ostensibly the story of the author’s unlikely relationship with...

The Unfashionable Adams Legacy
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The Unfashionable Adams Legacy

The Education of John Adams; by R. B. Bernstein; Oxford University Press; 368 pp., $24.95 It is not fashionable these days to admire the Founding Fathers, and yet the flood of books, articles, and even Broadway musicals devoted to them has not ceased. Attention is usually focused on George Washington, Benjamin Franklin, Thomas Jeff erson,...

The Court’s Own Critic
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The Court’s Own Critic

The Essential Scalia: On the Constitution, the Courts, and the Rule of Law; By Antonin Scalia; Edited by Jeffrey S. Sutton and Edward Whelan; Foreword by Justice Elena Kagan; Crown Forum; 368 pp., $35.00   Steven Calabresi, one of the founders of the Federalist Society for Law and Public Policy Studies, maintains that Antonin Scalia was the greatest justice ever...

Arbitrary Power
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Arbitrary Power

Is it still possible to believe that the rule of law prevails in the United States of America? That concept—that we are governed by our laws and Constitution, and not the arbitrary power of dominant individuals or groups—is endangered as never before, especially after the 2020 presidential election, the loss of two Republican Senate seats...

Put Not Your Faith in Judges
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Put Not Your Faith in Judges

Are there Bush judges and Obama judges? “No!” said the Chief Justice of the United States Supreme Court, John Roberts. Judges, he explained during his Senate confirmation hearings, are simply umpires, objectively attempting to follow the rules and call balls and strikes. The chief, let us say, was not being candid. Since 1881, when Oliver Wendell...

Rethinking Big Tech’s Legal Immunity
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Rethinking Big Tech’s Legal Immunity

Should Facebook, Google, Twitter, YouTube, Instagram or other purveyors of internet content be liable for damages if they fail to ensure that what they disseminate is not inaccurate, libelous, or otherwise dangerous and pernicious? There is a bit of law on this, but we are only now beginning seriously to consider this question. And only...

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Donald Trump, the Court, and the Law

Is Donald Trump a Burkean?  Would Russell Kirk vote for him for president?  Can a paleoconservative legal scholar imagine any benefit to a Trump presidency? Of course, the neoconservatives are piling on Trump.  Most notable was National Review’s January 21 issue, “Against Trump.”  “Trump,” say the editors, “is a philosophically unmoored political opportunist who would...

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After Obergefell: What Now?

I have previously suggested in these pages that the Supreme Court’s recent decision in Obergefell v. Hodges—the five-to-four decision which declared that two Americans of the same sex have a constitutionally guaranteed right to marry each other—may be the worst in the history of the Court.  First, there was no adequate legal or constitutional basis...

The Worst Decision
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The Worst Decision

Law professors like to debate among themselves which of the U.S. Supreme Court’s many opinions is the very worst.  There has been a general consensus that the most loathsome is the one in Dred Scott v. Sandford (1857), in which the Court decided that the right to hold slaves in the territories was a “fundamental...

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Reviewing Judicial Review: A Government of Justices

In the most famous defense of the U.S. Supreme Court’s power to declare acts of the federal and state legislatures unconstitutional, Alexander Hamilton argued that it was the Court’s job only to implement the will of the people as expressed in the Constitution.  If the Court went beyond that—interpreting the document to include things that...

Strippers to the Rescue
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Strippers to the Rescue

“Courts of justice cautiously abstain from deciding more than what the immediate point submitted to their consideration requires.” —Mr. Justice Nicholl   In what was probably the most laudable achievement of his administration, President George W. Bush placed on the Supreme Court two justices, Chief Justice John Roberts and Associate Justice Samuel Alito, who believe...

How Posner Thinks
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How Posner Thinks

“The law is good, if a man use it lawfully.” —1 Timothy 1:8 Richard Posner is one of the greatest judges never to have sat on the Supreme Court of the United States.  A distinguished professor at the University of Chicago, a judge on the U.S. Court of Appeals for the 7th Circuit for 25...

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Guantanamo Supreme

Do suspected Al Qaeda terrorists captured in Afghanistan and taken to the U.S.-operated prison at our naval base at Guantanamo Bay, Cuba, have a right guaranteed by the U.S. Constitution to contest their detention in the U.S. civilian courts?  According to five members of the U.S. Supreme Court, who agreed with an opinion by Justice...

Two American Lives
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Two American Lives

“Whatsoever thy hand findeth to do, do it with thy might.” —Ecclesiastes 9:10 The Gilded Age still exerts a strange pull on the American imagination.  It was a time of larger-than-life people and larger-than-life business entities.  It featured conspicuous consumption—including palatial mansions, yachts, international travel, and international scandal—that seems almost to exceed anything we have...

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A 60-Year-Old Error

Since the days of Earl Warren, the U.S. Supreme Court has engaged in a lot of freewheeling jurisprudence: the decision granting Washington the power to dictate when and how police may apprehend criminal suspects; the declaration that the racial integration of America’s public schools is a matter of federal, rather than state, law; the ukase...

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The Guantanamo Question

Who should determine whether alien enemy combatants captured in Iraq and Afghanistan are properly in the custody of the U.S. government at the U.S. Naval Station at Guantanamo Bay?  The President and Congress have set up special military tribunals to make such determinations, but some federal judges and some critics of President George W. Bush...

No Longer a Constitution?
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No Longer a Constitution?

What is the relationship between the U.S. Constitution and the current struggle against the perpetrators of jihad against the West?  Should the masterminds of, and participants in, the suicide bombings of September 11 and other terrorist acts be protected by the Bill of Rights and the Geneva Conventions?  In several important decisions by the U.S....

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Who Pays the “Tort Tax”?

The United States, of all Western legal systems, is probably the harshest on manufacturers, at least insofar as they can be held liable for millions or even billions of dollars in damages for unanticipated defects in their products.  Until about the middle of the 20th century, liability standards in this country were not significantly different...

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Crying “Halt!”

A federal judge whom I know lamented that the Supreme Court term that ended last June was the worst in recent memory.  That judge loves the Constitution but could find few signs that this term’s key decisions were based on that document.  A Court that can rule that medical marijuana grown for home use substantially...

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A Lawyer’s Lawyer

Judge John Roberts of the U.S. Court of Appeals for the District of Columbia Circuit, whom President George W. Bush has nominated to take the place of retiring Associate Justice Sandra Day O’Connor, is what we used to call a “lawyer’s lawyer.”  He comes from  Harvard College, Harvard Law School, the Harvard Law Review, a...

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Guantanamo Bay

Guantanamo Bay is the subject of continuous debate.  Can the United States detain indefinitely members of the Taliban captured in Afghanistan, or Al Qaeda insurgents captured in Iraq, at our military base in Cuba?  What sort of interrogation measures are permissible by international law in order to obtain information to protect Americans from the continuing...

My Favorite Justice
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My Favorite Justice

“Every virtue is included in the idea of justice, and every just man is good.” —Theognis John Paul Stevens is the only U.S. Supreme Court justice to have graduated from the law school where I teach; Steven Breyer was one of my law-school teachers; David Souter may be the most adept at arcane constitutional-law doctrine;...

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A Hard Case

Terri Shiavo’s tragic struggle is a hard case, and hard cases, we are taught, make bad law.  Her husband, Michael, believes she is in a permanent vegetative state and that she would not have wanted to be kept alive artificially.  Her parents, however, believe that she stands a chance of recovery and, further, that, as...

Sacred Texts ’98
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Sacred Texts ’98

As readers of this delightfully passionate work will infer, the U.S. Department of Education is unconstitutional.  Nevertheless, before it does the country a great service by abolishing itself, the department ought to issue a mandate requiring every secondary school in the nation to adopt the next edition of Reclaiming the American Revolution as required reading. ...

A Living Library of the Law Revived
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A Living Library of the Law Revived

“It is best that laws should be so constructed as to leave as little as possible to the decision of those who judge.” —Aristotle Here Lies Edward Coke, Knight of Gold, of Imperishable Fame, Spirit, Interpreter, and Inerrant Oracle of the Law, Discloser of its Secrets—Concealer of its Mysteries, Thanks Almost Alone to Whose Good...

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Champion of American Believers

Carole Keeton Strayhorn, the Texas state comptroller, has become the new champion of American believers.  Her office is charged with determining what groups qualify for exemption from state taxation (including sales taxes, property taxes, and other state levies) as religious organizations.  My ancient Concise Oxford Dictionary defines “religious” as “Imbued with religion, pious, god-fearing, devout...

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Erosion of Democracy

Brown v. Board of Education (1954), the famous decision of the Warren Court which held that racial segregation in the state public schools violated the 14th Amendment’s guarantee of the “equal protection” of the laws, turns 50 on May 17, 2004.  The inevitable celebrations of the decision in the nation’s law reviews and popular media...

The Unbearable Illegitimacy of American Law
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The Unbearable Illegitimacy of American Law

For some time now, American law and lawyers have had a legitimacy problem.  Most Americans must wonder how it is that unelected federal judges have the power to declare that no state government can punish consensual homosexual relations, prohibit abortion, or permit prayer in the schools (to mention just a few of the striking things...

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Supreme Court Chaos

Nietzsche got it wrong.  God is not dead, but that other mainstay of popular sovereignty and constitutional government in this country, the rule of law, is either finished or on life support.  For decades the finest minds in the law schools and on the bench have argued that several hundred years of legal tradition, in...

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Delayed Decision

Homosexual couples in the Bay State are awaiting the unexpectedly delayed decision of the Massachusetts Supreme Judicial Court as to whether they have a constitutional right to be married.  This question may not have occurred to the Pilgrims at Plymouth Rock, but, as this issue goes to press, it is anybody’s guess how the court...

Metaphors Have Consequences
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Metaphors Have Consequences

“The adulterous connection of church and state.” —Thomas Paine Is “separation of Church and State” a bedrock principle of the U.S. Constitution?  Should it be?  The answers of constitutional historians Daniel L. Dreisbach and Philip Hamburger fly in the face of conventional wisdom, embodied in such cases as Santa Fe Independent School District v. Doe...

A Bad Man’s View of the Law
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A Bad Man’s View of the Law

Law professors rarely write books.  When they write at all, they typically produce incomprehensible and heavily footnoted articles (usually unread) for obscure law reviews.  It is even rarer to find a law professor who can write with flair about something of more than ephemeral interest.  And it is rarest of all to find a law...

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Appointing Supreme Court Justices

Michael McConnell, to use the overworked metaphor, is the “poster boy” for the Senate Democrats’ attempts to frustrate President Bush’s promise to appoint more Supreme Court justices like Antonin Scalia and Clarence Thomas.  Scalia and Thomas are the two current justices who have most closely embraced a jurisprudence faithful to the understanding of the Framers,...

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Taking God Out of School

The Pledge of Allegiance, as this issue goes to press, is illegal for children in the public schools of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state to recite, because it contains the words “under God.”  Two out of three judges on a panel of the U.S. Court of Appeals for the...

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A Dissenting Voice

Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit is, for believers in the rule of law, a hero.  Judge Boggs, in an extraordinary dissenting opinion published in May, revealed profound problems with the majority of his court’s approach to law in an affirmative-action case and pointed out that his chief...

Jefferson’s Cousin
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Jefferson’s Cousin

There are probably more judicial biographies of Supreme Court Chief Justice John Marshall than of all the rest of the Supreme Court justices combined, so why another one?  R. Kent Newmyer, historian and law professor at the University of Connecticut School of Law, undertook to write a work that would not mirror the standard hagiographical...

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The Habitation of Justice

Judge Roy Moore, chief justice of the Alabama Supreme Court, is in big trouble again.  Judge Moore’s first 15 minutes of fame happened when, as a lower-court judge, he refused to remove a plaque containing the Ten Commandments from the wall of his courtroom.  The plaque, it was said, amounted to an impermissible establishment of...

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Interpretative Gymnastics

The Federal government’s freestyle interpretive gymnastics did not end when the man who was uncertain regarding the meaning of “is” left office.  On January 13, 2000, President Clinton appointed Victoria Wilson to fill a vacancy on the U.S. Civil Rights Commission, a roving band of allegedly independent and bipartisan officials tasked with the job of...

Some Dare Call It Justice
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Some Dare Call It Justice

“Justice is a contract of expediency, entered upon to prevent men harming or being harmed.“         —Epicurus, Aphorisms According to leading members of the American law professoriate, the U.S. Supreme Court’s decision, on December 12, 2000, in Bush v. Gore was “lawless and unprecedented,” “not worthy of ‘respect,'” featured “sickening hypocrisy and...

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Ideology in Judicial Selection?

President Bush, many of us believed, was preparing to appoint a set of jurists committed to the rule of law to the federal bench, but this has been thrown into doubt by Senator Jeffords leaving the Republican party. One of the immediate results of that move, which threw committee control of the Senate to the...

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“Borking”

“Borking” is back. The eponymous activity first perpetrated on Judge Robert Bork when he was nominated for a seat on the United States Supreme Court is the practice of painting a proposed judicial appointee as consciously demonic, in order to excite particular interest groups to oppose his appointment. Some might oppose Borkees because of honest...

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“We Hold These Truths”

Is the Declaration of Independence part of the federal Constitution? The short answer, of course, is “no.” For the Declaration to be part of the Constitution, it would have to have been included in the original document ratified by at least nine of the conventions held in the original 13 states between 1787 and 1789,...

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No Big News

The Bush administration finishes its first four months in office, the big legal news is that there is no big news. There have been some hopeful signs: the appointment of John Ashcroft as attorney general; the appointment of Theodore Olson as solicitor general. Both are distinguished conservatives, the former associated with the Burkean wing of...

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A Presidential Pardon

The Presidential Pardon of Marc Rich, the Belgian-born, naturalized American billionaire financier and fugitive who has renounced his U.S. citizenship and fled to Switzerland to avoid multi-million-dollar tax liability, evoked incredulous responses from many. Said New York’s Mayor Rudy Guiliani, “When I first heard about it, my— my reaction was, quite honestly, no. No. It’s...

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The Twilight Zone

The U.S. Supreme Court has put an end to five weeks of uncertainty. In the early days of December, in the twilight between the certification of George W. Bush as the winner of Florida’s electoral votes and the decision of the U.S. Supreme Court that the Florida Supreme Court was wrong to intervene, only one...

Don’t Fix It Restoring
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Don’t Fix It Restoring

The Electoral College, as we used to learn and as readers of this journal will still be aware, was supposed to be a device for removing the choice of the president from the people. Rather than direct elections, which could lead to the nation’s chief executive being the best demagogue, we were supposed to have...

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Law, Morality, and Religion

A paleoconservative thinks about the law the way Edmund Burke did. The basis of all law is the will of God or, to use the term employed by Blackstone (another hero of paleoconservatives), “natural law.” According to natural law as understood by Blackstone, Burke, and our late 18th-century American Founding Fathers (as paleoconservatives can still...

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Can American Legal Education Be Fixed?

Something has gone radically awry with legal education and maybe even legal practice. For about a decade now, the loudest wailing over the state of affairs has come from Chief Judge Harry Edwards of the United States Court of Appeals for the District of Columbia, who wrote a landmark article in the Michigan Law Review...