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Full-Text Articles in Law
Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys
Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys
Todd E. Pettys
In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical …
Retention Redux: Iowa 2012, Todd E. Pettys
Retention Redux: Iowa 2012, Todd E. Pettys
Todd E. Pettys
In 2010, Iowa voters ousted three members of the Iowa Supreme Court for their participation in that court's ruling that Iowa's statutory ban on same-sex marriage violated the Iowa Constitution. In 2012, however, Iowa voters opted to retain a fourth member of that same court. This article examines the differences between the two elections.
Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys
Judicial Retention Elections, The Rule Of Law, And The Rhetorical Weaknesses Of Consequentialism, Todd E. Pettys
Todd E. Pettys
From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of organized campaigns aimed at denying retention to judges who had ruled in ways that some voters found objectionable. Judges in those and other retention-election states can no longer rest comfortably on the assumption that voters will routinely exempt them from meaningful scrutiny. Anxious judges, state bar officials, and others have responded with a set of deontological and consequentialist arguments aimed at persuading voters not to use retention elections as an opportunity to oust judges who have issued controversial rulings. The deontological arguments posit that ousting …
Letter From Iowa: Same-Sex Marriage And The Ouster Of Three Justices, Todd E. Pettys
Letter From Iowa: Same-Sex Marriage And The Ouster Of Three Justices, Todd E. Pettys
Todd E. Pettys
This article examines Iowa's 2010 judicial-retention election, in which Iowa voters ousted three members of the Iowa Supreme Court in response to that court's ruling that the state's statutory ban on same-sex marriage violated the Iowa Constitution.
Judicial Discretion In Constitutional Cases, Todd E. Pettys
Judicial Discretion In Constitutional Cases, Todd E. Pettys
Todd E. Pettys
A damaging dichotomy is hindering the nation’s ability to talk intelligently and constructively about the constitutional work of the courts. The “legitimacy dichotomy” holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage …
The Myth Of The Written Constitution, Todd E. Pettys
The Myth Of The Written Constitution, Todd E. Pettys
Todd E. Pettys
Many Americans have long subscribed to what this Article calls the myth of the written constitution—the claim that the nation’s Constitution consists entirely of those texts that the sovereign American people have formally ratified, and the claim that the will of the American people, as expressed in those ratified texts, determines the way in which properly behaving judges resolve constitutional disputes. Drawing on two different meanings of the term myth, this Article contends that neither of those claims is literally true, but that Americans’ attachment to those claims serves at least three crucial functions. Subscribing to the myth helps to …
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd E. Pettys
Todd E. Pettys
A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that prevailed …
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
The Immoral Application Of Exclusionary Rules, Todd E. Pettys
Todd E. Pettys
In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing that jurors would use it in an irrational or legally impermissible manner. Forcing jurors to take responsibility for a verdict based upon a government-screened pool of evidence stands in sharp contrast to the way we ordinarily think about government efforts to withhold potentially useful information from citizens faced with important decisions. The First Amendment’s guarantee of the freedom of speech, for example, reflects a moral judgment that the government offends its citizens’ deliberative autonomy when it restricts speech based upon fears about what that speech …
Choosing A Chief Justice: Presidential Prerogative Or A Job For The Court?, Todd E. Pettys
Choosing A Chief Justice: Presidential Prerogative Or A Job For The Court?, Todd E. Pettys
Todd E. Pettys
After identifying the original rationales for our longstanding tradition of permitting the President and Senate to decide which of the Court’s nine members will serve as Chief Justice, I argue that those rationales are anachronistic, that the tradition creates unnecessary conflicts of interest and separation-of-powers concerns, and that the Court’s members should be permitted to decide for themselves which of them will serve as Chief Justice.
Competing For The People's Affection: Federalism's Forgotten Marketplace, Todd E. Pettys
Competing For The People's Affection: Federalism's Forgotten Marketplace, Todd E. Pettys
Todd E. Pettys
Returning to forgotten themes in the Federalist Papers, the article argues that the state and federal governments compete with one another for the “affection” of their citizens and for the regulatory power that often accompanies that affection. The article further contends that citizens and politicians are able fully to participate in this affection-driven marketplace only if three prerequisites are met: each sovereign must be assured of an opportunity to demonstrate its competence; each sovereign must enjoy a significant measure of autonomy from the other; and the two sovereigns’ dealings with one another must be sufficiently transparent to enable citizens to …