Judges Commons^™

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Aliens On The Bench: Lessons In Identity, Race And Politics From The First "Modern" Supreme Court, Lori A. Ringhand

Scholarly Works

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator's vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? …

Judicial Recusal & Expanding Notions Of Due Process, Andrey Spektor, Michael A. Zuckerman

Cornell Law School J.D. Student Research Papers

The merits of judicial elections have been litigated in journals around the country. In light of the recent Supreme Court decisions in White and Caperton, this debate will only intensify. Rather than revisit the arguments for and against electing judges, this Article argues that applying the Mathews v. Eldridge test in cases where a litigant’s due process is threatened by an elected judge—a possibility that the Court initially dismissed in White against Justice Ginsburg’s protests, and then took head on in Caperton—will balance First Amendment rights that judicial elections breed against the rights of the litigants that the Constitution protects. …

Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland

Law Faculty Publications

No abstract provided.

Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar

Faculty Publications

This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …

The Irrepressible Myth Of Klein, Howard M. Wasserman

Faculty Publications

The Reconstruction-era case of United States v. Klein remains the object of a “cult” among commentators and advocates, who see it as a powerful separation of powers precedent. In fact, Klein is a myth—actually two related myths. One is that it is opaque and meaninglessly indeterminate because, given its confusing and disjointed language, its precise doctrinal contours are indecipherable; the other is that Klein is vigorous precedent, likely to be used by a court to invalidate likely federal legislation. Close analysis of Klein, its progeny, and past scholarship uncovers three identifiable core limitations on congressional control over the workings of …

The Missing Minority Judges, Pat K. Chew, Luke T. Kelley-Chew

Articles

This essay documents the lack of Asian-American judges and considers the consequences.

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a litigant cast the deciding vote to relieve the litigant of a $50 million liability. The Court reached this result, one I view as compelled by common sense, through a 5-4 vote, with the dissenters, led by Chief Justice John Roberts and Justice Antonin Scalia, minimizing the danger of biased judging presented by the situation and questioning the practical feasibility of the Court's approach as well as the wisdom of …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …

Constitutional Constructions And Constitutional Decision Rules: Thoughts On The Carving Of Implementation Space, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Articles

The Supremacy Clause makes the Constitution, federal statutes, and ratified treaties part of the "supreme law of the land." Despite the textual and historical clarity of the Supremacy Clause, some courts and commentators have suggested that the "non-self-executing treaty doctrine" means that ratified treaties must await implementing legislation before they become domestic law. The non-self-executing treaty doctrine has in particular been used as a shield to claims under international human rights treaties.

This Article does not seek to provide another critique of the non-self-executing treaty doctrine in the abstract. Rather, I suggest that a determination that a treaty is non-self-executing …

All Rise! Standing In Judge Betty Fletcher’S Court, Thomas D. Rowe Jr.

Faculty Scholarship

In this essay, based on a talk given at the Washington Law Review’s March 2009 symposium in honor of Senior Ninth Circuit Judge Betty Binns Fletcher and her three decades of service on that court, I selectively survey her opinions on justiciability issues: standing, ripeness, mootness, and political questions. A significant starting point for this survey is Professor Richard Pierce’s 1999 law review article, Is Standing Law or Politics?, arguing that many Supreme Court votes in standing cases generally, and appellate judges’ votes in environmental-standing cases specifically, can be explained better on the basis of politics than by reference to …

Schrödinger’S Cross: The Quantum Mechanics Of The Establishment Clause, Joseph Blocher

Faculty Scholarship

Perhaps the most famous character in modern physics is Schrödinger’s Cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead — “mixed or smeared out in equal parts” — until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is …

The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying …

The Subjects Of The Constitution, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been …

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …