Judges Commons^™

Whose Ox Is Being Gored? When Attitudinalism Meets Federalism, Michael C. Dorf

Michael C. Dorf

Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold …

In Praise Of Justice Blackmun: (Corrected) Typos And All, Michael C. Dorf

Michael C. Dorf

No abstract provided.

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

Michael C. Dorf

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 …

Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" And Others Don't?, Michael Dorf

Michael C. Dorf

Why do some Republican Supreme Court Justices evolve over time, becoming more liberal than they were - or at least more liberal than they were generally thought likely to be - when they were appointed, while others prove to be every bit as conservative as expected? Although idiosyncratic factors undoubtedly play some role, for every Republican nominee since President Nixon took office, federal executive branch service has been a reliable predictor. Nominees without it have proved moderate or liberal, while those with it have been steadfastly conservative.

This Essay demonstrates the correlation for all twelve Republican appointees during this period …

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

Michael C. Dorf

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 …