Judges Commons^™

The Anti-Empathic Turn, Robin West

Georgetown Law Faculty Publications and Other Works

Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy–the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.

Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges …

Iowa’S 2010 Judicial Election: Appropriate Accountability Or Rampant Passion?, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Although 89% of state judges (appellate and general-jurisdiction trial judges) face some type of election, judicial elections are rarely thought of even by academics interested in elections. Iowa’s 2010 election, in which three Justices were defeated, is one of the most significant judicial elections ever. The Justices lost their seats because they participated in a unanimous 2009 decision upholding gay marriage. That decision stirred intense opposition among “social conservatives”, in Iowa a substantial proportion of the population and actively led by more than 100 ministers.

That active opposition was one of eight elements that created a perfect storm against the …

Remarks By Acting Solicitor General Neal Katyal, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Few have served the public with greater distinction than Justice John Paul Stevens. That service began with Justice Stevens's work as a naval intelligence officer during World War II, continued through his five years of service as a judge on the Seventh Circuit, and culminated with thirty-four and a half years on the United States Supreme Court. It also included a twenty-six-day stint in September 2005, during which Justice Stevens served as the Acting Chief Justice of the United States.

Remarks By Dean William M. Treanor, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Attorney General Levy produced a list of candidates for President Ford and it seems clear he particularly highlighted then-Judge Stevens. President Ford took the list, he read some of then-Judge Stevens’s opinions which he pronounced concise, persuasive, and legally sound. He slept on his decision and the following day he nominated Justice Stevens, who was confirmed within three weeks ninety-eight to nothing. So it was a very different world, but it’s also a testament to Justice Stevens and the respect that he held in the bench and the bar at that time.

Justice Stevens’s legacy on the Court accords with …

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 …

Harvard And Yale Ascendant: The Legal Education Of The Justices From Holmes To Kagan, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

With the nomination of Elena Kagan to be a justice of the United States Supreme Court, it is quite possible that eight of the nine justices will have graduated from only two law schools—Harvard and Yale. This article frames this development in the historical context of the legal education of those justices confirmed between 1902 and 2010. What this historical review makes clear is that the Ivy League dominance of the Supreme Court is a relatively recent occurrence whose beginnings can be traced to Antonin Scalia’s 1986 confirmation. Prior to that time, although Harvard and Yale were consistently represented among …

A Plea For Reality, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, …

Against Textualism, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Modern textualists have assumed that careful attention to constitutional text is the key to the recovery of the Constitution's original public meaning. This article challenges that assumption by showing the importance of nontextual factors in early constitutional interpretation. The Founding generation consistently relied on structural concerns, policy, ratifiers' and drafters' intent, and broad principles of government. To exclude such nontextual factors from constitutional interpretation is to depart from original public meaning because the Founders gave these factors great weight in ascertaining meaning. Moreover, for a modern judge seeking to apply original public meaning, the threshold question is not simply; "How …

Celebrating Thurgood Marshall: The Prophetic Dissenter, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Thurgood Marshall was born 100 years ago into a country substantially divided along color lines. Marshall could not attend the University of Maryland School of Law because he was a Negro; he had trouble locating bathrooms that were not for “whites only.” Today, by contrast, we celebrate his life and accomplishments. Broadway has a play called Thurgood devoted to him; Baltimore/Washington International Airport is now BWI Thurgood Marshall Airport; even the University of Maryland renamed its law library in his honor. How did we come this far? How far do we still have to go? This article will consider what …

Climate Change In The Supreme Court, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider's perspective on the choices that went into bringing and …

Howard T. Markey, Sherman L. Cohn

Georgetown Law Faculty Publications and Other Works

Chief Judge, jet test pilot and Air Force General, lead partner in a highly-respected law firm, law teacher, law dean and sought-after lecturer, Howard T. Markey packed into a single life four distinguished careers, any one of which would merit biographical attention. His early years, however, did not show the promise of what later occurred - or perhaps it did.

Process Theory, Majoritarianism, And The Original Understanding, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

In Radicals in Robes, Cass Sunstein posits that there are four primary approaches to constitutional interpretation: perfectionism, majoritarianism, minimalism, and fundamentalism.' The purpose of his eloquent and compelling book is twofold: Sunstein argues for minimalism, an approach that he contends makes most sense for America today; and with even greater force, Sunstein argues against fundamentalism, which he finds "wrong, dangerous, radical, and occasionally hypocritical."' The "Radicals in Robes" who are the targets of Sunstein's book are judges who embrace fundamentalism, which, in his view, embodies "the views of the extreme wing of [the] Republican Party."'

In Securing Constitutional Democracy: The …

A Tribute To Hon. George Bundy Smith: Welcome And Introduction, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Opening remarks at ceremony honoring Judge George Bundy Smith, including anecdotes from past students, an overview of Judge Smith’s career and accomplishments, and a recognition of distinguished guests in the audience.

Judge Marilyn Hall Patel: A Dedication, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Judge Patel is known as a judge of the greatest independence and integrity, and her opinions reflect both her concern with the judicial craft and her inspiring commitment to justice and fairness. During her tenure on the Northern District of California, she has issued a series of landmark decisions: she vacated the conviction of a Japanese-American man who had resisted being placed in government internment camps during World War II; boldly declared the gas chamber to be a cruel and unusual form of punishment; ensured the integration of the San Francisco Fire Department; handed down a famous decision in the …

Impacts Of White, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Changes in judicial elections stem from four identifiable causes. First, court decisions involve increasingly higher stakes and more serious consequences. The U.S. Senate confirmation battles also reflect this cause. Second, non-candidate groups, many from out of state, bring in enormous sums of money which often leads to ugly, even damaging, campaigns. Third, the first two causes are making judicial campaigns more like non-judicial campaigns, bringing new elements to judicial campaigns: campaign consultants and a win-at-any-cost approach.

Judges' Pay: A Chasm Far Worse Than Realized, And Worsening, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

For our state judges today, let us put aside what might be thought their appropriate "reward" compared to the "reward" for private-sector lawyers. Of course judges earn less than they would in private practice, and of course judges enjoy "rewards" other than salaries. What is surprising is how severe the gap is between the pay for judges and for the private bar-and, strikingly, the gap between the pay for judges and for other public employees. What is deeply disturbing, indeed dangerous, is how the gaps are worsening. Our compensation for judges is so low, that by reducing the caliber and …

Justice Blackmun, Abortion, And The Myth Of Medical Independence, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this article I test this conventional wisdom by explicitly placing medicine at the center of the analysis of Justice Blackmun's opinions on abortion, and then interrogating the connection between law and medicine. Using the Blackmun papers opened to the public in 2004 and augmented by other documents and sources, I examine four critical periods in Blackmun's life: his years at Mayo; his participation in a series of medicine-related cases prior to Roe; the period of intra-Court dynamics in Roe; and the post-Roe period in which a split developed between Blackmun and Roe's critics over the use of medical rhetoric. …

Twenty-First Century Equal Protection: Making Law In An Interregnum, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

During her remarkable career on the Supreme Court, Justice Sandra Day O'Connor articulated principles, in both concurrence and dissent, which moved to the doctrinal core of multiple areas of jurisprudence. Perhaps, just perhaps, Justice O'Connor has done it again. In Lawrence v. Texas, although the Court's majority decided the case on substantive due process grounds, O'Connor concurred relying solely on the Equal Protection Clause. Because future litigation on sexuality and gender issues is more likely to turn on issues of equality (or expression) than on issues of privacy, her concurrence may ultimately achieve the influence of many of her past …

The Liberal Legacy Of Bush V. Gore, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a …

Age And Tenure Of The Justices And Productivity Of The U.S. Supreme Court: Are Term Limits Necessary?, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

This Article examines the relationship between the productivity of the U.S. Supreme Court and the age and tenure of the Supreme Court Justices. The motivation for this Article is the Supreme Court Renewal Act of 2005 (SCRA) and other recent proposals to impose term limits for Supreme Court Justices. The authors of the SCRA and others suggest that term limits are necessary because, inter alia, increased longevity and terms of service of the Justices have resulted in a decline in the productivity of the Court as measured by the number of cases accepted for review and the number of opinions …

Scalia's Infidelity: A Critique Of "Faint-Hearted" Originalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this essay, based on the 2006 William Howard Taft lecture, the author critically evaluates Justice Antonin Scalia's famous and influential 1988 Taft Lecture, entitled Originalism: The Lesser Evil. In his lecture, Justice Scalia began the now-widely-accepted shift from basing constitutional interpretation on the intent of the framers to relying instead on the original public meaning of the text. At the same time, the essay explains how Justice Scalia allows himself three ways to escape originalist results that he finds to be objectionable: (1) when the text is insufficiently rule-like, (2) when precedent has deviated from original meaning and …

Clauses Not Cases, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Clauses Not Cases is a Response to Robert Post and Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006.

In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the …

The Measure Of A Justice: Justice Scalia And The Faltering Of The Property Rights Movement Within The U.S. Supreme Court, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is to take the measure of Justice Scalia's ability to produce significant opinions for the Court, rather than just for himself, by focusing on the Court's property rights cases during the past several decades. Much of the analysis will rely on the Blackmun Papers, because they provide a virtual treasure trove of information revealing the Court's deliberative process while Blackmun was on the Court from 1971 to 1994. Almost all of this information, including Justice Blackmun's handwritten notes on what each Justice said at the Court's private deliberations and initial voting on the cases at …

Beyond Coercion: Justice Kennedy's Aversion To Animus, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose …

Introduction: The Jurisprudence Of Justice Stevens Symposium, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Fordham Law School opened its doors on September 28, 1905, a school with ten students and six faculty members. That day marked a great beginning, and on September 28, 2005, we began a year-long celebration of Fordham Law's history and the law school community's remarkable achievements over 100 years. The heart of any great academic institution is, of course, academics, and, as part of the centennial celebration, we are hosting an extraordinary series of conferences. This issue of the Fordham Law Review presents the papers produced by the first of the year's conferences, the Symposium on the jurisprudence of Justice …

Who's Afraid Of Unenumerated Rights?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Unenumerated rights are expressly protected against federal infringement by the original meaning of the Ninth Amendment and against state infringement by the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Despite this textual recognition, unenumerated rights have received inconsistent and hesitant protection ever since these provisions were enacted, and what protection they do receive is subject to intense criticism. In this essay, the author examines why some are afraid to enforce unenumerated rights. While this reluctance seems most obviously to stem from the uncertainty of ascertaining the content of unenumerated rights, he contends that underlying this …

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes--mostly off the …

A Tournament Of Virtue, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

How ought we to select judges? One possibility is that each of us should campaign for the selection of judges who will transform our own values and interests into law. An alternative is to select judges for their possession of the judicial virtues--intelligence, wisdom, courage, and justice. Stephen Choi and Mitu Gulati reject both these options and argue instead for a tournament of judges--the selection of judges on the basis of measurable, objective criteria, which they claim point toward merit and away from patronage and politics. Choi and Gulati have gotten something exactly right: judges should be selected on the …

Pragmatism And Judgment: A Comment On Lund, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.' I raise three questions about his analysis, two of which take off from the phrasing of his title. First, calling the present Court the Rehnquist Court is obviously easy, and I do it myself in the subtitle of my forthcoming book. Professor Lund has of course taken his charge from the conveners of this Symposium, and I do not mean to criticize him for doing so. Still, it may be worth pointing out that convening a symposium that encourages people to think in terms of "the Rehnquist …

The Original Meaning Of The Judicial Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this paper, the author refutes any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as he can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the …