Law Commons^™

The Loudest Voice At The Supreme Court: The Solicitor General’S Dominance Of Amicus Oral Argument, Darcy Covert, Annie J. Wang

Vanderbilt Law Review

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.”

This Article challenges that …

Consenting To Adjudication Outside The Article Iii Courts, F. Andrew Hessick

Vanderbilt Law Review

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Supreme Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals-whose judges do not enjoy the salary and tenure guarantees provided by Article III-may adjudicate disputes if the parties consent to the tribunals' jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges …

Can A Court Change The Law By Saying Nothing?, Paul R. Gugliuzza, Mark A. Lemley

Vanderbilt Law Review

Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court's 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law's patentable subject matter requirement. Our dataset includes each one of the Federal Circuit's more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36. Including those no-opinion affirmances, the Federal Circuit has found …

The Origins (And Fragility) Of Judicial Independence, Tara L. Grove

Vanderbilt Law Review

We hold certain truths of the federal judiciary to be self-evident. Article III judges are entitled to life tenure and salary protections, and cannot be removed outside the impeachment process.' Political actors must comply with federal court orders. And "packing" the Supreme Court is wrong. These assumptions are so deeply ingrained in our public consciousness that it rarely occurs to anyone to question them. But a closer look reveals that these "truths" are neither self- evident nor necessary implications of our constitutional text, structure, and history. Instead, these rules of our federal judiciary have emerged over time through the rough …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Vanderbilt Law Review

U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to "lower" federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the "percolation" of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other federal courts is best viewed as neither top-down nor bottom-up, but …

Undemocratic Restraint, Fred O. Smith, Jr.

Vanderbilt Law Review

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed prudential limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch's avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine. The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not …

Minor Courts, Major Questions, Michael Coenen, Seth Davis

Vanderbilt Law Review

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency's controversial interpretation of a key provision of a regulatory statute. Lower courts now apply "Chevron deference" as a matter of course, upholding agencies' reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency's answer to a statutory question, citing the "deep economic and political significance" of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called "major questions exception" …

Supreme Court Repeaters, Jason Iuliano, Ya Sheng Lin

Vanderbilt Law Review

A case that receives cert once is special. A case that receives cert twice is truly exceptional. This Article is the first to examine the phenomenon of "Supreme Court Repeaters." Although Repeaters may seem like mere curiosities, they are actually a valuable part of the Supreme Court's docket. Our analysis reveals that the Justices use Repeaters in three ways: (1) to set up important substantive questions that could not be addressed on the first pass, (2) to supervise lower courts, and (3) to address different substantive issues that arise at distinct points in litigation. In this Article, we investigate Supreme …

Normalizing "Erie", Suzanna Sherry

Vanderbilt Law Review

This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines-such as the dormant commerce clause, implied preemption, federal preclusion law, and certain special "enclaves" of federal common law courts will displace state law to protect federal interests even when neither Congress nor the Constitution clearly articulates those interests. But under the Eric doctrine, the Supreme Court has mandated exactly the opposite approach: state law trumps federal interests unless those interests have been legislatively codified. This striking anomaly has not been noticed, in part because the voluminous …

Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, And The Consequences Of Returning The Constitution To Elected Government, Neal Devins

Vanderbilt Law Review

This Article will argue that now is the time for the Court to decisively intervene in the abortion controversy by issuing a maximalist Roe-like decision; today's politics do not support an indeterminate standard like Casey's undue burden test. In other words, assuming that there is a constitutional right to abortion, today's Court should assume the heroic role Erwin Chemerinsky embraces in The Case Against the Supreme Court and other writings; specifically, the Court should "protect the rights of minorities who cannot rely on the political process." For Chemerinsky, protecting the rights of minorities is the "primary reason for having a …

The Broken-Hearted Lover: Erwin Chemerinsky's Romantic Longings For A Mythical Court, Gerald N. Rosenberg

Vanderbilt Law Review

Erwin Chemerinsky is broken hearted. "Almost forty years ago," he writes, "I decided to go to law school because I believed that law was the most powerful tool for social change and that the Supreme Court was the primary institution in society that existed to stop discrimination and to protect people's rights.' Smitten by the Court, Chemerinsky was blind to its historical role as a protector of privilege, and its structural limitations as an agent of progressive social change. Placing the Court on a pedestal, he abstracted it from the culture and the society in which it operates. For decades …

The Supreme Court In Context: Conceptual, Pragmatic, And Institutional, Edward L. Rubin

Vanderbilt Law Review

Is it possible to decide whether a constitutional decision is right or wrong? Legal scholars respond with an enthusiastic 'Yes!" but their reasons for this answer are generally based on what philosophers call formal arguments. These arguments, as opposed to substantive arguments, focus on internal coherence, rather than external standards. Originalism, textualism, structural analysis, and evolving meaning are all formal arguments. Their appeal lies precisely in their independence from external issues-that is, from the sort of issues that generate political and social controversy. If one can demonstrate by formal argument that a particular constitutional decision is correct, then one can …

Introduction: Is The Supreme Court Failing At Its Job, Or Are We Failing At Ours?, Suzanna Sherry

Vanderbilt Law Review

It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional scholars of our time and a frequent advocate before the U.S. Supreme Court. If he thinks there is a case to be made against the Court, we should all take it very seriously indeed. Chemerinsky's thesis may be stated in a few sentences. The primary role of the Supreme Court, in his view, is to "protect the rights of minorities who cannot rely on the political …

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Vanderbilt Law Review

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

Three Supreme Court "Failures" And A Story Of Supreme Court Success, Corinna B. Lain

Vanderbilt Law Review

The Supreme Court is not the institution that I once revered," writes Erwin Chemerinsky in The Case Against the Supreme Court-a provocative, important work that also happens to be a great read. Chemerinsky's claim is that the Supreme Court ought to be protecting vulnerable minorities from repressive majorities, but it has not done so. "The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments," he argues.' This is Chemerinsky's case against the Supreme Court, and it is a sweeping indictment. Of the cases Chemerinsky cites to prove his point, three stand out …

Letter To Supreme Court (Erwin Chemerinsky Is Mad. Why You Should Care), Barry Friedman

Vanderbilt Law Review

Whatever else you want to say about Erwin Chemerinsky, he's sincere. Chemerinsky is nothing if not sincere. As anyone who knows him will tell you so. And Chemerinsky is in pain. He informs us: "This book was far harder to write than I could have imagined." The question is why Chemerinsky is in pain? You'd think this would be the easiest thing in the world for him, going after a Court he sees as overly conservative. Like shooting fish in a barrel. The reason is because deep in his heart-despite his beefs with the outcomes of cases-Chemerinsky has always been …

The Supreme Court And The New Equity, Samuel L. Bray

Vanderbilt Law Review

The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprising has happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has …

Statutory Interpretations And The Therapy Of The Obvious, Edward L. Rubin

Vanderbilt Law Review

Arthur Koestler wrote that "the more original a discovery the more obvious it seems afterward."' The same may be said about theories of law, and specifically about Robert Katzmann's new book, Judging Statutes. Judge Katzmann's approach to statutory interpretation seems so plausible and balanced that it is hard to believe that anyone ever believed anything else. In this particular case, however, there is in fact an "anything else." It is, of course, Justice Antonin Scalia's campaign to displace intentionalist or purposivist approaches to interpretation with what has come to be called "textualism," and his related effort to rule out reliance …

A More Intelligent And Just "Atkins:" Adjusting For The Flynn Effect In Capital Determinations Of Mental Retardation Or Intellectual Disability, Geraldine W. Young

Vanderbilt Law Review

In Atkins v. Virginia, the U.S. Supreme Court declared a ban on all executions of mentally retarded persons. This declaration, however, rings hollow for those mentally retarded defendants and inmates who continue to face death sentences as a result of the inconsistent enforcement of Atkins across jurisdictions. One issue in particular-whether to adjust intelligence-test scores for the phenomenon known as the Flynn Effect-has caused inconsistency among courts and has sparked a contentious battle among experts. It blurs the already-precarious line between life and death. And yet, the Flynn Effect captivates capital defendants and inmates with its promise of adjusting intelligence-test …

The Liberal Tradition Of The Supreme Court Clerkship: Its Rise, Fall, And Reincarnation?, William E. Nelson, Harvey Rishikof, I. Scott Messinger, Michael Jo

Vanderbilt Law Review

This Article presents the first comprehensive empirical study of the post-clerkship employment of law clerks at the Supreme Court from 1882 to the present, and it uses that data to flesh out a historical and institutional interpretation of the clerkship and the recent political polarization of the Court more generally. The liberal tradition of the clerkship arose out of Louis Brandeis's vision of former law clerks serving a progressive legal agenda, a tradition that Felix Frankfurter helped institutionalize while striving to remove ideological bias. With the advent of a conservative bloc on the Court, this tradition has waned, due to …

William Johnson, The Dog That Did Not Bark?, Mark R. Killenbeck

Vanderbilt Law Review

The conventional wisdom is that Justice William Johnson, Jr., was the "the first dissenter." This is not literally true. The first published opinion of the Court was Georgia v. Brailsford, in which each member of the Court expressed his views seriatim. Ironically, the first to speak was the first Justice Johnson, Thomas of Maryland, whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: the first published set of opinions, the first split decision, and the first dissent.

It was the "other" Justice Johnson, William of South Carolina, who earned the reputation as the first …

Jacksonian Jurisprudence And The Obscurity Of Justice John Catron, Austin Allen

Vanderbilt Law Review

This Article argues that Justice Catron's acceptance of the general premises of the Court's Jacksonian jurisprudence accounts for his obscurity. Part One demonstrates that Catron articulated a similar framework while serving on the Tennessee Supreme Court. Part Two illustrates his continued support for that framework after he moved to the U.S. Supreme Court. Part Three, however, demonstrates that, although he embraced much of the Taney Court's jurisprudence, Catron did not move in lockstep with his colleagues. Indeed, the elements he emphasized within that framework-namely, support for state sovereignty and equality as well as an aversion to judicial policymaking-led him to …

John Mclean: Moderate Abolitionist And Supreme Court Politician, Paul Finkelman

Vanderbilt Law Review

His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history. At the time of his death, he was the third longest serving Justice in the history of the Court, and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions. Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact …

Sherman Minton: Restraint Against A Tide Of Activism, Linda C. Gugin

Vanderbilt Law Review

Sherman Minton was not a great U.S. Supreme Court Justice, but he was far better than the image that scholars have created for him would indicate. Although there are exceptions, scholars generally consider Minton to have been an ineffective Justice who was put on the bench only because he was a crony of President Harry Truman. Indeed, the scholars who periodically provide a list of the "greatest" and "worst" Justices inevitably relegate Minton to the "worst" category. For example, Bernard Schwartz, who classified Minton as one of the ten worst Justices, said Minton "was below mediocrity as a Justice. His …

Bushrod Washington, Herbert A. Johnson

Vanderbilt Law Review

In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the …

There Were Great Men Before Agamemnon, William R. Casto

Vanderbilt Law Review

John Marshall is the Agamemnon of Supreme Court history. He is universally considered the Court's greatest Justice, and rightly so. But there were great Justices before Marshall. One of those great Justices was James Iredell. No Justice in the Court's history has provided a more detailed or sophisticated explanation and justification of the doctrine of judicial review. Iredell needs a bard, and this Essay is my ode to his memory.

Rufus W. Peckham And Economic Liberty, James W. Ely, Jr.

Vanderbilt Law Review

It is striking that Rufus W. Peckham has received so little scholarly attention and remains without a biography. He was, of course, the author of Lochner v. New York (1905), one of the most famous and contested decisions in the history of the Supreme Court. Moreover, Peckham wrote important opinions dealing with contractual freedom, antitrust law, eminent domain, dormant commerce power, and the Eleventh Amendment. Indeed, Owen M. Fiss maintains that Peckham and David J. Brewer were intellectual leaders of the Fuller Court, "influential within the dominant coalition and the source of the ideas that gave the Court its sweep …

The Perils Of Popularity: David Josiah Brewer And The Politics Of Judicial Reputation, J. Gordon Hylton

Vanderbilt Law Review

David Brewer is hardly a household name in the contemporary legal academy. Most American professors of constitutional law would have a hard time placing his nearly twenty-one years of service on the U.S. Supreme Court, though most would be savvy enough to guess "Lochner era." He is probably the least well-known of all the Justices whose careers are examined in this Symposium. (Brewer's longtime colleague Rufus Peckham is probably his chief contender for this title.) For the record, Brewer sat on the Supreme Court from January of 1890 until his death in March of 1910.

In his own era, Brewer …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

Getting The Math Right: Why California Has Too Many Seats In The House Of Representatives, Paul H. Edelman

Vanderbilt Law Review

"One person, one vote" sounds like a simple mathematical equation. Actually, it isn't quite that easy, but over the last forty years, the Supreme Court has distilled a fairly stable and predictable test for resolving the basic issue of equal representation: how much population difference between districts is permissible? In one area of representation, however, the Court has gotten the math wrong. In its only opinion on the decennial apportionment of Congress, the 1992 case U.S. Department of Commerce v. Montana, the Court punted. Rather than apply its well-established test from the districting cases, the Court deferred to Congress on …