Jeffrey Rosen

  • June 28, 2012

    by Jeremy Leaming

    Chief Justice John Roberts saved the nation’s top court from going over a cliff, barely. While a majority of the justices found the Affordable Care Act constitutional, they did so largely on Congress’s power to “lay and collect” taxes.

    The Court’s majority opinion, however, found that the minimum coverage provision was not a regulation of commerce. The majority opinion also held that Congress can expand Medicaid coverage, but that it “is not free” to “penalize states that choose not to participate in that new program by taking away their existing Medicaid funding."

    ACS President Caroline Fredrickson praised the decision, saying:

    The U.S. Constitution and the American people won an important victory before the nation’s high court today. The Supreme Court wisely resolved the health care case, despite all the political posturing on the right. Chief Justice Roberts’ majority opinion for the Supreme Court, upholding the Affordable Care Act’s integral ‘minimum coverage’ provision, has allowed for progress providing health care for tens of millions of Americans. It remains to be seen what the impact will be of Chief Justice Roberts’ understanding of the difference between ‘activity’ and ‘inactivity’ under the Commerce Clause.

    The Obama administration argued that the ACA’s integral provision, the minimum coverage provision, which requires some Americans to purchase health care coverage starting in 2014 or pay penalty on their income tax filings, was valid under the Constitution’s commerce clause and the constitutional power of Congress to tax and spend.

  • April 19, 2011

    The Tea Party and other far-right activists are successfully shaping their image as a “constitutional movement” because they connect with “populist sentiment,” writes The New Republic’s Legal Affairs Editor Jeffrey Rosen.

    “Enthusiasm about constitutional amendments generally tracks closely with populist sentiment,” Rosen, a law professor at George Washington University law school, writes. “Simply put, populist movements tend to expend energy on constitutional amendments; those that are more elite-driven do not.”

    Rosen notes a slew of amendments that have been, and are being, pushed by the right-wing. Those include Tea Party-backed amendments to greatly restrict the power of the federal government and Religious Right-backed constitutional amendments aimed out curtailing reproductive rights and banning same-sex marriage.

    Rosen concludes that “the lesson here for liberals isn’t necessarily about passing constitutional amendments. It’s that, in order to have any success as a constitutional movement, they need to find a way to reconnect with populism.”

    One way to reconnect is to better promote objections to a government that is “heavily influenced by Wall Street.” Citing Harvard Law School professor Lawrence Lessig, progressives do share some common ground with elements of the Tea Party, a distrust of “corporate control.”

    At an ACS event earlier this year concerning corporate influence on the courts, former New York Gov. Eliot Spitzer urged progressives to become far more engaged in the debate over the Constitution, to fight back against Tea Party activists’ claims that they have the market cornered on constitutional scholarship.

    Spitzer said, “The Constitution is a wildly progressive document. It is an amazing thing. We all appreciate that. But our failure to stand up and defend it permits them to claim it.”

    He continued, “This is a document that reflects society. It pains me that we are losing the Constitution because we are unwilling to stand up and defend what it really is. We have to do that.”

    Some progressives have already taken to the challenge of fighting corporate influence on government. Jeffrey Clements, an ACS Issue Brief author on campaign finance regulation and corporate rights, has helped found a group dedicated to advancing a constitutional amendment that would reign in the ability of corporations to spend freely on elections.

     

  • November 16, 2010

    More than a year in office and Sen. Al Franken, a former entertainer and author of best-selling books, such as Lies and the Lying Liars Who Tell Them, has "self-consciously" strived to be "the institutionalist who can achieve bipartisan consensus but also successfully champion liberal legislation," writes Jeffrey Rosen for The New Republic.

    Rosen, a law professor at George Washington University, and TNR's Legal Affairs Editor, talked extensively with Sen. Franken and discovered a senator serious about his work, and already garnering impressive achievements. 

    Rosen writes of Franken's work ethic:

    In recent years, congressional hearings have become little more than televised sideshows in which most senators rely on questions scripted by their staff and seem unable to ask tough or even relevant follow-ups. Franken clearly aspires to an older tradition, when lawmakers could think on their feet and were capable of grilling witnesses without aides handing them notes or whispering furtively in their ears. He studies issues exhaustively, which allows him to negotiate directly with senators and their aides rather than intermediaries. His staffers say that he encourages them to challenge him during the murder boards he assembles to prepare for hearings and sometimes insists on staying past midnight.

    On some of the senator's congressional accomplishments, Rosen writes:

    Franked has accomplished more in his first year than many Senate freshman, sponsoring several amendments that became law. One requires health insurance companies to spend 85 percent of premiums on actual medical care, not administrative costs or other expenses.

    Another measure bans the federal government from awarding contracts to employers who require employees to give up their right to sue for sexual harassment or rape at work. (The law was inspired by the case of Jamie Leigh Jones, who accused her co-workers at Halliburton in Baghdad of gang raping her and was forced by Halliburton into secret arbitration.)

    One of Franken's greatest frustrations during his first year has centered on the struggles to extend unemployment insurance. On numerous occasions, Republican lawmakers in the Senate blocked or obstructed efforts to extend such benefits. Franken told Rosen of meeting constituents who have told him they wouldn't have shelter without the benefits.

    "I'll go to a union hall," Franken told Rosen, "and see people whose whole identity is their job - these guys have worked since they were ten years old ... and they haven't had a job in six months, and you see that they're literally depressed. I've had guys say to me, ‘If it weren't for unemployment insurance ... I wouldn't be in my house,' and then I hear how unemployment insurance incentivizes people not to get jobs. You hear that, and you think how out of touch that is, and how insensitive it is."

    During this year's ACS national convention, Franken gave a keynote address focusing on the struggles to protect individual rights. In particular, Franken scored the Supreme Court's conservative majority for siding with corporate interests over those of individual Americans.

    "If you have a credit card, if you watch TV, if you file insurance claims, if you work - in other words, if you participate in American daily life at all - then you interact with corporations that are more powerful than you are," Franken said. "The degree to which those corporations' rights are protected over yours, well that's extremely relevant in your life. And in case after case, the Roberts Court has put not just a thumb, but a fist, on the scale in favor of those corporations."

    He continued, "It's important to recognize that, for some conservative legal activists, this is the whole point. Do they want to undercut abortion and immigration and Miranda rights? Sure. But those are just cherries on the sundae. What conservative legal activists are really interested in is this question: What individual rights are so basic and so important that they should be protected above a corporation's right to profit? And their preferred answer is: None of them. Zero."

    Watch Franken's entire speech below.

  • February 18, 2010
    The Supreme Court's decision in Citizens United v. FEC is one the Court's most "polarizing," and could signal that Chief Justice John Roberts is not committed to forging unity on the Court with narrow opinions, maintains Jeffrey Rosen, a George Washington University law school professor and Legal Affairs Editor for The New Republic (TNR).

    Rosen notes in a column for TNR that in 2006, Chief Justice Roberts said he wanted the justices to produce more unanimity in its decisions and, in particular, show "humility when dealing with the First Amendment." But in Citizens United, Rosen writes, the chief justice "deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics - Louis Brandeis called it ‘our financial oligarchy' - is the most pressing question of the day."

    Rosen adds, "If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration - precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal."

    Although Rosen writes that he and others, including some of Roberts' colleagues on the high court, initially gave Roberts the "benefit of the doubt" hoping that he would put the "bipartisan legitimacy of the Court above his own ideological agenda," that seemingly widespread benefit started to erode in 2007.

    In summer 2007, Rosen asked Justice John Paul Stevens whether Roberts would succeed in leading the Court down a more conciliatory path. "I don't think so," Stevens said. "I just think it takes nine people to do that. I think maybe the first few months we all leaned over backward to try to avoid writing separately."

  • November 12, 2009

    Following his participation in a recent ACS event on privacy concerns in a digital age, George Washington University Law School Professor Jeffrey Rosen talked with ACSblog about the changing landscape of privacy rights. Rosen said the "stakes for privacy rights have never been higher," noting that so much of what we do in cyberspace can be stored and accessed by others. Watch Rosen's interview below or download a podcast of it here.