It is a commonplace of American civics to view each of the three branches of our government as a check on the other two. Many Americans therefore look to the judiciary to rein in executive action when it exceeds lawful bounds. In recent months, a number of lower courts have …
Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge
by Jon O. Newman
Judges come in many flavors. Thurgood Marshall could be salty, even spicy. In dissent, Antonin Scalia could be sour and occasionally bitter. Almost no judge qualifies as sweet. But in his autobiography, Benched, the distinguished federal appellate judge Jon O. Newman seems to embody what scientists have described as the …
Courting Death: The Supreme Court and Capital Punishment
by Carol S. Steiker and Jordan M. Steiker
When my older brother Jan David Rakoff was murdered in 1985, bolts of anger and outrage not infrequently penetrated the black cloud of my grief. Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead. Had the prosecutor recommended the death penalty, I would have applauded. It took many years before I changed my mind.
Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.
A War Like No Other: The Constitution in a Time of Terror
by Owen Fiss, edited and with a foreword by Trevor Sutton
The so-called “war on terror” declared by President George W. Bush soon after September 11, 2001, has already lasted more than three times as long as American involvement in World War II, with no end in sight. By its shapeless and secretive nature, it tends to generate amorphous fears and shrouded responses that compromise our freedoms in ways we may only dimly recognize but that create troubling precedents for the future. And so far, the federal courts have done precious little to challenge these incursions.