Open Access. Powered by Scholars. Published by Universities.®

Judges Commons

Open Access. Powered by Scholars. Published by Universities.®

2019

Supreme Court of the United States

Institution
Keyword
Publication
Publication Type

Articles 1 - 30 of 36

Full-Text Articles in Judges

Indiana University's Storied Past, Austen L. Parrish Oct 2019

Indiana University's Storied Past, Austen L. Parrish

Austen Parrish (2014-)

Indiana University celebrates its bicentennial this year, and the excitement is building on the Bloomington campus. Although the Maurer School of Law is a few years younger – we were founded in 1842 – we are joining the festivities with a yearlong list of events that honor our past and look toward the future.


Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


The Majoritarian Rehnquist Court?, Neal Devins Sep 2019

The Majoritarian Rehnquist Court?, Neal Devins

Neal E. Devins

No abstract provided.


The D'Oh! Of Popular Constiutitonalism, Neal Devins Sep 2019

The D'Oh! Of Popular Constiutitonalism, Neal Devins

Neal E. Devins

No abstract provided.


Ideological Imbalance: Why Democrats Usually Pick Moderate-Liberal Justices And Republicans Usually Pick Conservative Ones, Lawrence Baum, Neal Devins Sep 2019

Ideological Imbalance: Why Democrats Usually Pick Moderate-Liberal Justices And Republicans Usually Pick Conservative Ones, Lawrence Baum, Neal Devins

Neal E. Devins

No abstract provided.


Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins Sep 2019

Ideological Cohesion And Precedent (Or Why The Court Only Cares About Precedent When Most Justices Agree With Each Other), Neal Devins

Neal E. Devins

This Article examines the profound role that ideological cohesion plays in explaining the Supreme Court's willingness to advance a coherent vision of the law - either by overruling precedents inconsistent with that vision or by establishing rule-like precedents intended to bind the Supreme Court and lower courts in subsequent cases. Through case studies of the New Deal, Warren, and Rehnquist Courts, this Article calls attention to key differences between Courts in which five or more Justices pursue the same substantive objectives and Courts which lack a dominant voting block. In particular, when five or more Justices pursue the same substantive ...


Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins Sep 2019

Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins

Neal E. Devins

No abstract provided.


Does The 'Mcconnell Principle' Make Sense?, Jeffrey Bellin Sep 2019

Does The 'Mcconnell Principle' Make Sense?, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.


How Merrick Garland Could Help Heal America, Jeffrey Bellin Sep 2019

How Merrick Garland Could Help Heal America, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.


Why The Supreme Court Cares About Elites, Not The American People, Lawrence Baum, Neal Devins Sep 2019

Why The Supreme Court Cares About Elites, Not The American People, Lawrence Baum, Neal Devins

Neal E. Devins

Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion. This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions. In this Article, we will explain why we think this is so and, in so doing, challenge both the dominant political science models of judicial behavior and the significant work of Barry Friedman, Jeffrey Rosen, and others who link Supreme Court decision making to public opinion.


Congress And The Making Of The Second Rehnquist Court, Neal Devins Sep 2019

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Neal E. Devins

No abstract provided.


Following Lower-Court Precedent, Aaron-Andrew P. Bruhl Sep 2019

Following Lower-Court Precedent, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

This Article examines the role of lower-court precedent in the US Supreme Court’s decisions. The Supreme Court is rarely the first court to consider a legal question, and therefore the Court has the opportunity to be informed by and perhaps even persuaded by the views of the various lower courts that have previously addressed the issue. This Article considers whether the Court should give weight to lower-court precedent as a matter of normative theory and whether the Court in fact does so as a matter of practice. To answer the normative question, this Article analyzes a variety of potential ...


Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney Sep 2019

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Susan S. Fortney

No abstract provided.


Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose Sep 2019

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

Meg Penrose

No abstract provided.


Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose Sep 2019

Overwriting And Under-Deciding: Addressing The Roberts Court's Shrinking Docket, Meg Penrose

SMU Law Review Forum

No abstract provided.


Article Iii, Judicial Restraint, And This Supreme Court, Joseph S. Diedrich Jul 2019

Article Iii, Judicial Restraint, And This Supreme Court, Joseph S. Diedrich

SMU Law Review

Article III of the U.S. Constitution establishes a federal judiciary with powers and functions separate and distinct from the other branches. During its October 2017 Term, the U.S. Supreme Court decided three cases that turned on an interpretation of Article III power: Patchak v. Zinke, Oil States Energy Services v. Greene’s Energy Group, and Gill v. Whitford.

This Article argues that in each of those three cases, a majority of the

Court coalesced around a unifying principle of judicial restraint. By “judicial restraint,” this Article refers to the principle that the judiciary should respect and defer to ...


To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller Jul 2019

To Compare Or Not To Compare? Reading Justice Breyer, Russell A. Miller

Russell A. Miller

Justice Breyer's new book The Court and the World presents a number of productive challenges. First, it provides an opportunity to reflect generally on extra-judicial scholarly activities. Second, it is a major and important - but also troubling - contribution to debates about comparative law broadly, and the opening of domestic constitutional regimes to external law and legal phenomena more specifically. I begin by suggesting a critique of the first of these points. These are merely some thoughts on the implications of extra-judicial scholarship. The greater portion of this essay, however, is devoted to a reading of Justice Breyer's book ...


Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz Jul 2019

Defying Mcculloch? Jackson’S Bank Veto Reconsidered, David S. Schwartz

Arkansas Law Review

On July 10, 1832, President Andrew Jackson issued the most famous and controversial veto in United States history. The bill in question was “to modify and continue” the 1816 “act to incorporate the subscribers to the Bank of the United States. This was to recharter of the Second Bank of the United States whose constitutionality was famously upheld in McCulloch v. Maryland. The bill was passed by Congress and presented to Jackson on July 4. Six days later, Jackson vetoed the bill. Jackson’s veto mortally wounded the Second Bank, which would forever close its doors four years later at ...


Overruling Mcculloch?, Mark A. Graber Jul 2019

Overruling Mcculloch?, Mark A. Graber

Arkansas Law Review

Daniel Webster warned Whig associates in 1841 that the Supreme Court would likely declare unconstitutional the national bank bill that Henry Clay was pushing through the Congress. This claim was probably based on inside information. Webster was a close association of Justice Joseph Story. The justices at this time frequently leaked word to their political allies of judicial sentiments on the issues of the day. Even if Webster lacked first-hand knowledge of how the Taney Court would probably rule in a case raising the constitutionality of the national bank, the personnel on that tribunal provided strong grounds for Whig pessimism ...


M'Culloch In Context, Mark R. Killenbeck Jul 2019

M'Culloch In Context, Mark R. Killenbeck

Arkansas Law Review

M’Culloch v. Maryland is rightly regarded as a landmark opinion, one that affirmed the ability of Congress to exercise implied powers, articulated a rule of deference to Congressional judgments about whether given legislative actions were in fact “necessary,” and limited the ability of the states to impair or restrict the operations of the federal government. Most scholarly discussions of the case and its legacy emphasize these aspects of the decision. Less common are attempts to place M’Culloch within the ebb and flow of the Marshall Court and the political and social realities of the time. So, for example ...


The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson Jul 2019

The Confusing Language Of Mcculloch V. Maryland: Did Marshall Really Know What He Was Doing (Or Meant)?, Sanford Levinson

Arkansas Law Review

All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition ...


Mcculloch At 200, David S. Schwartz Jul 2019

Mcculloch At 200, David S. Schwartz

Arkansas Law Review

March 6, 2019 marked the 200th anniversary of the Supreme Court’s issuance of its decision in McCulloch v. Maryland, upholding the constitutionality of the Second Bank of the United States, the successor to Alexander Hamilton’s national bank. McCulloch v. Maryland involved a constitutional challenge by the Second Bank of the United States to a Maryland tax on the banknotes issued by the Bank’s Baltimore branch. The tax was probably designed to raise the Second Bank’s cost of issuing loans and thereby disadvantage it relative to Maryland’s own state-chartered banks. Marshall’s opinion famously rejected the ...


Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus Jun 2019

Digital Realty, Legislative History, And Textualism After Scalia, Michael Francus

Pepperdine Law Review

There is a shift afoot in textualism. The New Textualism of Justice Scalia is evolving in response to a new wave of criticism. That criticism presses on the tension between Justice Scalia’s commitment to faithful agency (effecting the legislature’s will) and his rejection of legislative history in the name of ordinary meaning (which ignores legislative will). And it has caused some textualists to shift away from faithful agency, even to the point of abandoning it as textualism’s grounding principle. But this shift has gone unnoticed. It has yet to be identified or described, let alone defended, even ...


Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Kexel Chabot Jun 2019

Do Justices Time Their Retirements Politically? An Empirical Analysis Of The Timing And Outcomes Of Supreme Court Retirements In The Modern Era, Christine Kexel Chabot

Utah Law Review

As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree on whether ...


Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder Jun 2019

Keynote Address: Staying Afloat And Engaged In Today's Flooded Marketplace Of Speech, Michael Y. Scudder

Notre Dame Law Review

The contributions to this Symposium cover substantial ground, address important issues, and offer much to react to. This Symposium, I submit, also occurs at a time of significance for the First Amendment in the Supreme Court. Perhaps the Court’s most fervent and consequential defender of free speech, Justice Anthony Kennedy, has retired. His impact on American constitutional law was enormous, including, in my view, in the area of free speech. I had the privilege of clerking for Justice Kennedy, admire him deeply as judge and person, and want to offer some reflections on what I see as a few ...


Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel May 2019

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are ...


Textualism For Realists, Ian Samuel Apr 2019

Textualism For Realists, Ian Samuel

Michigan Law Review

Review of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.


50 Years Of Excellence: A History Of The St. Mary's Law Journal, Barbara Hanson Nellermoe Mar 2019

50 Years Of Excellence: A History Of The St. Mary's Law Journal, Barbara Hanson Nellermoe

St. Mary's Law Journal

Founded in 1969, the St. Mary’s Law Journal has climbed the road to excellence. Originally built on the foundation of being a “practitioner’s journal,” the St. Mary’s Law Journal continues to produce quality scholarship that is nationally recognized and frequently used by members of the bench and bar. From its grassroots origins to the world-class law review it is today, the St. Mary’s Law Journal continues to maintain its prestigious position in the realm of law reviews by ranking in the top five percent most-cited law reviews in federal and state courts nationwide.

In celebration of ...


Table Of Contents: Allen Chair Symposium 2009 Mar 2019

Table Of Contents: Allen Chair Symposium 2009

University of Richmond Law Review

No abstract provided.


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.