Judges Commons^™

What's The Difference Between A Conclusion And A Fact?, Howard M. Erichson

Faculty Scholarship

In Ashcroft v. Iqbal, building on Bell Atlantic Corp. v. Twombly, the Supreme Court instructed district courts to treat a complaint’s conclusions differently from allegations of fact. Facts, but not conclusions, are assumed true for purposes of a motion to dismiss. The Court did little to help judges or lawyers understand this elusive distinction, and, indeed, obscured the distinction with its language. The Court said it was distinguishing “legal conclusions” from factual allegations. The application in Twombly and Iqbal, however, shows that the relevant distinction is not between law and fact, but rather between different types of factual assertions. This …

Seen And Heard: A Defense Of Judicial Speech, Dmitry Bam

Faculty Publications

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy," …

The Confident Court, Jennifer Mason Mcaward

Journal Articles

Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses …

The Worst Supreme Court Case Ever? Identifying, Assessing, And Exploring Low Moments Of The High Court, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Passive-Voice References In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

The Supreme Court regularly references grammar rules when interpreting statutory language. And yet grammar references play a peculiar role in the Court's statutory cases—often lurking in the background and performing corroborative work to support a construction arrived at primarily through other interpretive tools. The inevitable legisprudential question triggered by such references is, why does the Court bother? If grammar rules provide merely a second, third, or fourth justification for an interpretation reached through other interpretive canons, then what does the Court gain—or think it gains—by including such rules in its statutory analysis?

This essay examines these questions through the lens …

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 …

A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko

Faculty Publications

Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall’s letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall’s extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. …