Judges Commons^™

Unprecedented? Judicial Confirmation Battles And The Search For A Usable Past, Josh Chafetz

Cornell Law Faculty Publications

Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.

This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness …

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf

Cornell Law Faculty Publications

In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …

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 …

Reforming The Supreme Court, Roger C. Cramton

Cornell Law Faculty Publications

Life tenure for Supreme Court Justices has had harmful consequences that could not have been foreseen by the Founders. The seriousness of these harms makes it necessary and proper to use the hindsight we enjoy today to correct them. This Article begins with a brief summary of the constitutional provisions relevant to judicial tenure and examines how the system of life tenure functions today. The harmful consequences of life tenure are then examined, leading to the conclusion that a statutory solution is required. The article then proposes such a solution and examines its constitutionality, concluding that language, history and purpose …

Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo M. Peñalver

Cornell Law Faculty Publications

Justice Stevens has sometimes been caricatured as the U.S. Supreme Court Justice who hates religion. Whether considering questions under the Establishment Clause or the Free Exercise Clause, questions about the funding or regulation of religious groups, or the permissibility of religious speech in public places, in case after case he has voted against religion. Like most caricatures, this view of Justice Stevens is based on a kernel of truth. He does appear to be more likely to vote against religious groups than any other Justice. But an exploration of the cases in which Justice Stevens has voted in favor of …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Cornell Law Faculty Publications

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Moral Rights, Judicial Review, And Democracy: A Response To Horacio Spector, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Designing Judicial Review: A Comment On Schauer, Emily Sherwin

Cornell Law Faculty Publications

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.

The Ideology Of Judging And The First Amendment In Judicial Election Campaigns, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

Justice Kelleher And The Constitutions, Robert B. Kent

Cornell Law Faculty Publications

No abstract provided.

The Role Of History In Constitutional Interpretation: A Case Study, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

The Role Of Judges In Life/Death Decisions For The Neurologically Impaired, H. Richard Beresford

Cornell Law Faculty Publications

The Massachusetts Supreme Court has recently ruled that decisions about withholding care from hopelessly ill, legally incapacitated patients must be made by judges. It clearly rejected the view that families and attending physicians should be empowered to make such decisions. In this respect, the ruling contrasts with that of the Quinlan case and highlights the issue of whether judges or physicians and families are better able to make medically and morally sound decisions respecting this class of patients.

Judicial Law Making And Administration, Roger C. Cramton

Cornell Law Faculty Publications

No abstract provided.