Judges Commons^™

When The Chief Justice Serves In The Legislative Branch, Roy E. Brownell Ii

ConLawNOW

This article argues that the Chief Justice is considered part of the legislative branch during presidential impeachment trials. In so arguing, this article first argues, as a matter of constitutional text, that the Chief Justice during presidential impeachment trials steps into the shoes of the president of the Senate. The Chief Justice’s authority in this vein is granted by Article I, which predominantly governs the legislative branch, and not Article III, which does the same for the federal judiciary.

Indeed, the only reference to the Chief Justice in the entirety of the Constitution occurs in this context in Article I. …

Judicial Elections: The Case For Accountability, Jack Park

ConLawNOW

In this article, Jack Park defends the use of partisan elections as a method of selecting state court judges. He first frames the debate and describes its participants. The author then discusses the competing values that supporters and opponents of judicial elections advance. Finally, Mr. Park addresses the arguments for and against judicial elections, showing that, while they may not be a perfect method of selecting judges, neither are the alternatives.

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus

Michigan Law Review First Impressions

On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

Akron Law Review

However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.

Understanding the significance of Brennan's contribution requires an appreciation of the …

"Home Rule" Vs. "Dillon's Rule" For Washington Cities, Hugh Spitzer

Seattle University Law Review

This Article focuses on the tension between the late-nineteenth century “Dillon’s Rule” limiting city powers, and the “home rule” approach that gained traction in the early and mid-twentieth century. Washington’s constitution allows cities to exercise all the police powers possessed by the state government, so long as local regulations do not conflict with general laws. The constitution also vests charter cities with control over their form of government. But all city powers are subject to “general laws” adopted by the legislature. Further, judicial rulings on city powers to provide public services have fluctuated, ranging from decisions citing the “Dillon’s Rule” …

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

Judge Levine: A Survey Of His Most Influential Court Of Appeals Decisions - 1993-2002, Jean D'Alessandro

Touro Law Review

No abstract provided.

Judge Posner's Simple Law, Mitchell N. Berman

Michigan Law Review

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …

Six Overrulings, Andrew Koppelman

Michigan Law Review

John Paul Stevens, who retired in 2010 at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, gives high-profile interviews, wrote a memoir of the chief justices he has known, and has now written a second book. Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional …

Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock

Catholic University Law Review

The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …