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Articles 1 - 20 of 20
Full-Text Articles in Law
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell
Scholarship@WashULaw
Jurisdiction stripping is seen as a nuclear option. Its logic is simple: by depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. In theory, it frees up the political branches and the states to act without fear of judicial second-guessing. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction stripping measures …
The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen
The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen
Scholarship@WashULaw
At several points in history, politicians and commentators have proposed adding seats to the Supreme Court to accomplish partisan ends. We explore the incentives for a political party to initiate “court-packing” and what the Supreme Court would look like in a world where political parties engage in repeated partisan court- packing. To do so, we use an Agent-Based Model and different data sources to calibrate the behaviors of Presidents, Congresses, and Supreme Court justices. We then simulate the future composition of the Court in worlds with and without court-packing. The simulations suggest that a political party with an initial minority …
Lemonade: A Racial Justice Reframing Of The Roberts Court’S Criminal Jurisprudence, Daniel S. Harawa
Lemonade: A Racial Justice Reframing Of The Roberts Court’S Criminal Jurisprudence, Daniel S. Harawa
Scholarship@WashULaw
The saying goes, when life gives you lemons, make lemonade. When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.
However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and
Ramos v. Louisiana. On their face, the cases teach …
Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps
Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps
Scholarship@WashULaw
Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any …
The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz
The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz
Scholarship@WashULaw
Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …
Designing Supreme Court Term Limits, Kyle Rozema, Adam Chilton, Daniel Epps, Maya Sen
Designing Supreme Court Term Limits, Kyle Rozema, Adam Chilton, Daniel Epps, Maya Sen
Scholarship@WashULaw
Since the Founding, Supreme Court justices have enjoyed life tenure. This helps insulate the justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointment process, a number of academics and policymakers have put forward detailed term limits proposals. However, many of these proposals have been silent on many key design decisions and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.
The Future Of Supreme Court Reform, Daniel Epps, Ganesh Sitaraman
The Future Of Supreme Court Reform, Daniel Epps, Ganesh Sitaraman
Scholarship@WashULaw
For a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans’ rush to confirm a nominee before the election, despite their refusal four years prior to confirm Judge Merrick Garland on the ground that it was an election year. Though Democratic candidate Joe Biden won the Presidency in November, Democrats lost seats in the House and have a majority in the Senate …
Supreme Court Reform And American Democracy, Daniel Epps, Ganesh Sitaraman
Supreme Court Reform And American Democracy, Daniel Epps, Ganesh Sitaraman
Scholarship@WashULaw
In "How to Save the Supreme Court," we identified the legitimacy challenge facing the Court, traced it to a set of structural flaws, and proposed novel reforms. Little more than a year later, the conversation around Supreme Court reform has only grown louder and more urgent. In this Essay, we continue that conversation by engaging with critics of our approach. The current crisis of the Supreme Court is, we argue, inextricable from the question of the Supreme Court’s proper role in our democracy. For those interested in reform, there are three distinct strategies for ensuring the Supreme Court maintains its …
Telling The Story Of Justice Sandra Day O'Connor, Susan Frelich Appleton
Telling The Story Of Justice Sandra Day O'Connor, Susan Frelich Appleton
Scholarship@WashULaw
Appearing as part of the WASHINGTON UNIVERSITY JOURNAL OF LAW and POLICY’s celebration of the sesquicentennial of the first women law students, this brief review critically examines FIRST: SANDRA DAY O’CONNOR, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. (A shorter version of the review appeared under the title How One Glass Ceiling Was Broken, COMMON READER (Nov. 20, 2019).
The Defender General, Daniel Epps, William Ortman
The Defender General, Daniel Epps, William Ortman
Scholarship@WashULaw
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …
Teacher For The Nation, Daniel Epps
Teacher For The Nation, Daniel Epps
Scholarship@WashULaw
In these brief remarks, delivered at the Hastings Law Journal's Symposium on the Jurisprudence of Justice Kennedy, I discuss Justice Kennedy's impact on American law. I reflect on the events that led to Justice Kennedy's appointment to the Supreme Court and discuss his vision of the Justices as teachers for the nation and how that vision seems to have informed his view of judicial review.
How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman
How To Save The Supreme Court, Daniel Epps, Ganesh Sitaraman
Scholarship@WashULaw
The consequences of Justice Brett Kavanaugh’s Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court’s ability to render impartial justice, the Court’s power to settle important questions of law will be in …
Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Kyle Rozema, Tonja Jacobi
Judicial Conflicts And Voting Agreement: Evidence From Interruptions At Oral Argument, Kyle Rozema, Tonja Jacobi
Scholarship@WashULaw
This Article asks whether observable conflicts between judges in a case—interruptions between Supreme Court justices during oral arguments—are associated with future breakdowns in voting agreement among the judges in the case. To do so, we built a dataset containing justice-to-justice interruptions in cases between 1960 to 2015, and employ a framework for measuring case outcomes that treats the outcomes as a set of agreements and disagreements between pairs of justices. We find that on average a judicial pair is 7 percent less likely to vote together in a case for each interruption that occurs in the case between the judicial …
The View From My Window: The Roberts Court's First Amendment Symposium, Gregory P. Magarian
The View From My Window: The Roberts Court's First Amendment Symposium, Gregory P. Magarian
Scholarship@WashULaw
The experience of writing a book and then reading what some very smart and knowledgeable people have to say about the subject matter is humbling and a little dizzying. In Managed Speech: The Roberts Court's First Amendment, I try to make some sense of the present Supreme Court's decisions over the past decade about the First Amendment's protections for free expression.' The book argues that those decisions, taken as a whole, excessively constrain free speech within a particular managerial framework. Rather than helping speech to flourish in all its noisy, messy glory, the Roberts Court favors First Amendment claims from …
A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian
A Tricky Negotiation: Free Speech Versus Insensitivity, Melvin Dilanchian
Washington University Undergraduate Law Review
The central question presented in this paper is whether specialty license plates constitute government speech, and are thus subject to disapproval by the Board of the Texas Department of Motor Vehicles. The core concerns reviewed in this research, largely focus on defining whose speech specialty license plates are. The purpose is to investigate and analyze the precedent established as a result of a recent case, Walker v. Texas Division, Sons of Confederate Veterans. The paper thoroughly reviews the arguments made in the majority opinion, as well as those of the dissenting opinion, with an interdisciplinary approach. The argument presented …
Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian
Bookends: Justice Stevens And Justice Scalia, Gregory P. Magarian
Scholarship@WashULaw
The great importance Justice John Paul Stevens attaches to his bonds with former colleagues has long shone through his words and actions. Anyone who knows Justice Stevens knows of his deep admiration for his former boss, Justice Wiley Rutledge, whose deep ties to Washington University Justice Stevens emphasized in his recent remarks here.' During the year I had the privilege of serving as one of Justice Stevens' law clerks, retired Chief Justice Warren Burger passed away. A few days after Chief Justice Burger's death, Justice Stevens announced a decision from the bench. He revised his explanation of the majority's reasoning …
The Marrow Of Tradition: The Roberts Court And Categorial First Amendment Speech Exclusions, Gregory P. Magarian
The Marrow Of Tradition: The Roberts Court And Categorial First Amendment Speech Exclusions, Gregory P. Magarian
Scholarship@WashULaw
INTRODUCTION The Roberts Court has made a lot of First Amendment law. Since Chief Justice John Roberts took the Supreme Court’s helm in 2006, the Court has issued decisions on the merits in about thirty-five free speech cases. With greater vigor than the late Rehnquist Court, the present Justices have waded into free speech controversies ranging from violent video games to commercial speech to campaign fi- nance regulation. In all those areas, the Court has handed import- ant victories to First Amendment claimants. Free speech advocates’ conventional (not to say universal) view of this Court is adoring. Renowned First Amendment …
Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian
Chief Justice Robert's Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory P. Magarian
Scholarship@WashULaw
After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …
Justice Stevens, Religion, And Civil Society, Gregory P. Magarian
Justice Stevens, Religion, And Civil Society, Gregory P. Magarian
Scholarship@WashULaw
Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This article debunks that conventional analysis …
The Pragmatic Populism Of Justice Stevens's Free Speech Jurisprudence Symposium: The Jurisprudence Of Justice Stevens: Panel V: First Amendment/Voting Rights, Gregory P. Magarian
The Pragmatic Populism Of Justice Stevens's Free Speech Jurisprudence Symposium: The Jurisprudence Of Justice Stevens: Panel V: First Amendment/Voting Rights, Gregory P. Magarian
Scholarship@WashULaw
In his three decades on the Supreme Court, Justice John Paul Stevens has developed a distinctive approach to the First Amendment. During his tenure, the Court's majority has crystallized a theory of First Amendment speech protection as an abstract, negative protection of individual autonomy against government interference. In contrast, Justice Stevens' pragmatic judicial methodology has caused him to place greater emphasis on free speech decisions' practical consequences, particularly their effectiveness in making democratic debate inclusive as to both participants and subject matter in order to ensure robust, well-informed public discourse. Alone on the present Court, Justice Stevens manifests a deep …