Simon Lazarus

Simon Lazarus is a lawyer, former White House domestic policy staffer for President Jimmy Carter, and a writer on the Supreme Court’s handling of legal checks on corporate power and other legal issues. 

Recent Articles

The Next War Over the Courts

Conservatives are already fired up about Obama's judicial nominations. Is the White House prepared for the fight?

Supreme Court Justices John Roberts, Clarence Thomas, Stephen Breyer, and Samuel Alito attend the State of the Union address in 2006. (AP Photo/Evan Vucci)
On March 17, President Barack Obama announced his first judicial nominee: David Hamilton, a 15-year veteran Indiana federal trial judge with the declared support of both Indiana senators, Republican Richard Lugar and Democrat Evan Bayh. With his selection of Hamilton for the 7th Circuit Court of Appeals, Obama fulfilled a promise he reportedly made to Republicans. The previous month, ranking Judiciary Committee Republican Arlen Specter told Roll Call that the president had assured him that he would send up nominees "who can get Republican support" and "be acceptable to all sides." Hamilton is by all accounts a great pick. A brilliant young judge respected on both sides of the political aisle, his nomination was endorsed by liberal advocacy groups like People for the American Way but also by the president of the Indianapolis lawyers chapter of the Federalist Society, Geoffrey Slaughter, who rated him "an excellent jurist" whose "judicial philosophy is left of center, but well within...

Will Congress Rebuff the Supreme Court's Anti-Consumer Activism?

The Court's campaign against individual court enforcement of consumer, employee, retiree, and other statutory protections has been a secret hiding in plain sight for the last four decades. Congress is finally taking notice.

The fractious finish of the Supreme Court's 2007-2008 term, coupled with new rumblings on Capitol Hill and the prospect of expanded Democratic gains in November, suggest that we could be at the brink of an epochal clash between the Court and the elective branches of government. Today, Senate Judiciary Committee Chair Patrick Leahy will hold the second in a planned series of hearings designed, as he stated in opening the first hearing, on June 11, "to shine a light on how the Supreme Court's decisions affect Americans' everyday lives." Noting that, especially in today's distressed economy, citizens are preoccupied with health care coverage, retirement uncertainty, and credit card, home mortgage, and other monthly payments, Leahy observed, "Congress has passed laws to protect Americans in these areas, but in many cases, the Supreme Court has ignored the intent of Congress." The Court's campaign against individual court enforcement of consumer, employee, retiree, and other statutory...

Justice Scalia's Two-Front War

Despite lip service to "judicial restraint" Scalia has been waging a war against consumer product regulation as well as protections for workers, at both the state and federal level.

Modern American conservatives are widely perceived as reflexively pro-states' rights. But as long ago as 1982, movement icon Antonin Scalia, then a University of Chicago law professor, warned members of the fledgling Federalist Society to shed such myopic nostalgia. Conservatives' underlying goal, he said, is "market freedom." While that goal surely justifies opposition to federal economic intervention, he observed, it should also entail actively exploiting federal authority to stop objectionable meddling by state governments. He counseled conservatives to "fight a two-front war" against overzealous regulation at the state no less than the federal levels: "[W]ith all these targets out there," he noted, there must be "at least a few targets to be shot at." These past two weeks, Justice Scalia and his fellow conservatives on the Supreme Court could be seen merrily shooting at regulatory targets on both the federal and state "fronts." With respect to the latter, they were focused on a...

Repealing the 20th Century

When most Americans think about the Supreme Court's effect, they think about such cultural hot-buttons as abortion, or due process for terrorists.

Illustration by Jason Schneider
When most Americans think about the Supreme Court's effect on the life of their nation, they think about such cultural hot-buttons as abortion, or due process for terrorists, or free speech and pornography. They don't think about the Court's effect on the issues that most directly affect the majority of them on a daily basis -- health and retirement security, workplace fairness and equal opportunity, consumer protection and product safety. Since these pocketbook matters do not roil culture-war sensitivities or raise constitutional questions, the press, public, and politicians pay little or no heed when they come before the Court. Nor, with few exceptions, do liberal advocacy groups -- even though landmark laws they fought to enact are at risk, and even though constituencies they purport to represent have much reason to care about how those laws will fare in the hands of the Roberts Court. Indeed, while right-wing groups still make political hay by railing at "liberal activist" judges...

The Most Activist Court

How should progressives think about and respond to the assaults of the Roberts Court? Here are three quick and simple suggestions.

Two citizens hold signs during a news conference in Louisville, KY, following the decision yesterday. (Photo by the Associated Press.)
Digging out from an unprecedented avalanche of 5-4 end-of-term Supreme Court decisions overruling its own precedents, federal statutes, state laws, and local ordinances, many Americans have now caught sight of a specter once imagined only by a tiny cadre of legal cognoscenti: A Supreme Court bound and determined to reprise the Court's reactionary role from a century ago, out to squelch progressive policies whatever their source. Transparently, and contrary to his earnest pre-confirmation professions of fealty to judicial "modesty," Chief Justice John Roberts embraces this activist enterprise. He evidently sees himself in a leadership contest -- not leadership of the Court nor, much less, the nation, but of the elite of very smart and equally ideological lawyer-conservatives which remains his political home and constituency. His much-publicized recent spats with Justice Antonin Scalia -- over whether to overrule landmark precedents, or to retain them in principle but marginalize them...

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