Digital Commons Network^™

Partisanship "All The Way Down" On The U.S. Supreme Court, Lee Epstein

Pepperdine Law Review

Just as the American public is politically polarized, so too is the U.S. Supreme Court. More than ever before, a clear alignment exists between the Justices’ partisanship and their ideological leanings (known as “partisan sorting”). Disapproval of opposing-party identifiers also appears to have intensified (“partisan antipathy”). This Article offers evidence of both forms of polarization. It shows that partisan sorting has resulted in wide gaps in voting between Republican and Democratic appointees; and it supplies data on “us-against-them” judging in the form of increasing antipathy toward opposite-partisan presidents. Taken collectively, the data point not to law “all the way down,” …

The Supreme Court, Article Iii, And Jurisdiction Stuffing, James E. Pfander

Pepperdine Law Review

Reflecting on the state of the federal judiciary in the aftermath of the Biden Commission report and subsequent controversies, this Article identifies problems with the current operation of both the Supreme Court and the lower courts that make up the Article III judicial pyramid. Many federal issues have been assigned to non-Article III tribunals, courts poorly structured to offer the independent legal assessment that such Founders as James Wilson prized as they structured the federal judiciary. Meanwhile, the Supreme Court devotes growing attention to a slice of highly salient public law questions, including those presented on the shadow docket, thereby …

The Misguided Use Of The Harvard/Unc Ruling To Thwart Law Firm And Other Private Employer Dei Efforts, Ronald A. Norwood

SLU Law Journal Online

This article explores the Harvard/UNC ruling and what, in the author’s view, is the misguided efforts by certain political and well-financed private actors to use that ruling to justify the eradication of private employers and law firm DEI efforts. It is the author’s firm belief that because the Supreme Court’s holding is limited to an analysis of the Constitution’s Equal Protection clause (limited to state actors) and Title VI (covering private actions receiving federal funding), that ruling should not be used by courts to quash DEI programs designed to level the employment playing field for minorities, women and other protected …

Unintended Consequences Of Fetal Personhood Statutes: Examples From Tax, Trusts, And Estates, Bridget J. Crawford, Alexis C. Borders, Katherine Keating

Elisabeth Haub School of Law Faculty Publications

The laws of taxation, trusts, and estates are new fronts in the culture wars over abortion. After the Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, some anti-abortion states enacted fetal personhood statutes that have the potential to unsettle and destabilize longstanding legal doctrines that otherwise create predictability and stability in the laws of taxation and succession. This Article makes three principal claims: descriptive, predictive, and normative. First, the Article explores how Dobbs opened the door for states like Georgia to treat zygotes-embryos-fetuses as “dependents” for state income tax purposes. Second, the Article identifies some of the …

Free Speech Or Fair Elections? A Call For Campaign Finance Reform And A New Definition Of Corruption, Annabelle Crawford

Brigham Young University Prelaw Review

This paper argues that to protect free speech, the Supreme Court must authorize stricter limits on independent expenditures and expand the legal definition of corruption. It scrutinizes the historical trajectory of Supreme Court rulings concerning the control of political expenditure, emphasizing the delicate balance between safeguarding freedom of expression and mitigating corruption in electoral processes. The paper highlights the Court's limited interpretation of corruption, advocating for a broader conceptualization that encompasses not only direct quid pro quo transactions but also subtler forms of corruption including undue influence and distortion. The paper illustrates how unregulated independent expenditures can subvert democratic principles …

Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio

Catholic University Law Review

The Trump-era unitary executive movement sought to expand presidential

power and shrink the influence of the administrative state through deregulation.

This movement ripples into the present moment, as Trump’s overhaul of the

federal judiciary installed a comprehensive system to delegitimize

administrative agency action— a system that is certain to endure. The

independence and role of administrative law judges (ALJs) has proven a key

target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities

and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause

removal protections of SEC ALJs violated the Take Care Clause of Article …

Public Opinion And Its Potential Impact On The U.S. Supreme Court, Savannah Medlin

Senior Honors Theses

The Supreme Court of the United States has a fundamental role in the interpretation of the Constitution and the configuration of the legal landscape of the country. But, while the Framers isolated the Court from political pressures, the Court is not removed from the impact of public opinion. This essay considers the effect of public opinion on Supreme Court rulings by reviewing studies and cases to discover the part public opinion plays in the courtroom. My findings imply that public opinion impacts the Court. There are limited ways by which the Court can prevent this impact. I emphasize that the …

Slaughtering Slaughter-House: An Assessment Of 14th Amendment Privileges Or Immunities Jurisprudence, Caleb Webb

Senior Honors Theses

In 1872, the Supreme Court decided the Slaughter-House Cases, which applied a narrow interpretation of the Privileges or Immunities Clause of the 14^th Amendment that effectually eroded the clause from the Constitution. Following Slaughter-House, the Supreme Court compensated by utilizing elastic interpretations of the Due Process Clause in its substantive due process jurisprudence to cover the rights that would have otherwise been protected by the Privileges or Immunities Clause. In more recent years, the Court has heard arguments favoring alternative interpretations of the Privileges or Immunities Clause but has yet to evaluate them thoroughly. By applying the …

Keynote Address: "Attacking And Defending The Administrative State", Jack M. Beermann

Faculty Scholarship

At the beginning of this semester I told my students at Boston University that this is the most interesting time to take administrative law since I started teaching it nearly forty years ago. Doctrines that seemed settled just a few years ago have been questioned and significant change seems to be on the horizon. Don't get me wrong, we've been here before. In the 1970s and 1980s there were a few Supreme Court decisions on separation of powers¹ that indicated the possibility of big changes, but ultimately it fizzled out into the administrative law revolution that wasn't.

Things feel …

International Asylum Law In The U.S. Supreme Court, Lorin Utsch

Undergraduate Honors Theses

The role of international law within the United States legislative system is unclear and fluctuating. The extent to which the United States keeps its international commitments is informed by the application of international law in the country’s highest court, the Supreme Court. The Court’s use of international law varies by case, but consistently applies international law so as to maximize domestic interests. These interests may be of strategic, legal, or ideological value. The Supreme Court cites international asylum law in order to clarify domestic statutes, safeguard domestic sovereignty, and to reemphasize the Court’s preference for domestic statutes over international legal …

Once Is Enough: Why Title Ix's Pervasive Requirement Necessitates Adopting The Totality Inquiry, Evan S. Thompson

University of Cincinnati Law Review

No abstract provided.

Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii

Marquette Law Review

This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that

a violation of Miranda was not a violation of the Fifth Amendment privilege

against self-incrimination. This Article examines the original language of the

Miranda opinion, the statements and intentions of the members of the Miranda

Court, and subsequent precedent to determine Miranda’s true nature. Further,

this Article examines the reasoning of Vega and the dangers created by its

pronouncements, especially in light of the Court’s earlier characterization of

Miranda as a constitutional rule in Dickerson v. United States. This Article

asserts that the Justices who …

Against The Mainstreaming Of The Term Sex Work: Advocacy With India's Supreme Court, Pravin Patkar

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Arrests: Legal And Illegal, Daniel Yeager

Georgia State University Law Review

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot.

Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

Abortion Politics And The Rise Of Movement Jurists, Robert L. Tsai, Mary Ziegler

Faculty Scholarship

This Article employs the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial entrenchment can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this Article, …

Pro Se Litigants In The U.S. Supreme Court: How Do They Fare?, Kyle Persaud

St. Mary's Law Journal

No abstract provided.

Growing, Growing, Gone: How Dobbs Fundamentally Altered The Way Reproductive Freedom, Private And Professional Liability, And Constitutional Rights Will Be Analyzed In A Post–Roe America, Amanda J. Sharp

San Diego Law Review

This Note examines the Dobbs decision and its implications. Part II analyzes the history of abortion rights in the United States, including the role Dobbs played in overturning precedential cases. Part III describes the legal implications of Dobbs, including the status of abortion rights and how this decision altered the state of women’s healthcare. It then addresses Dobbs’ indirect implications, including its potential impacts on the foster care system, implied liability in healthcare professions, data privacy laws, and the employer-employee relationship. Part IV briefly proposes next steps that could be taken and concludes with a call to action.

John Marshall And Felix Frankfurter: An Icon And A Disappointment?, William E. Nelson

Touro Law Review

This article shows how Chief Justice John Marshall first developed the doctrine of judicial restraint in Marbury v. Madison to assure the public that the Supreme Court would not engage in politically oriented judicial review as colonial courts had in holding Parliament’s 1765 Stamp Act unconstitutional. Justice Felix Frankfurter, in contrast, adopted judicial restraint differently—by reading the scholarship of James Bradley Thayer. This article also shows that Frankfurter did not abandon his commitment to judicial restraint when during his years on the bench it began to serve conservative purposes rather than the progressive purposes it had once served.

“It’S The End Of The World As We Know It” –Redrafting Amendment To Federal Rule Of Criminal Procedure 26 To Allow Remote Testimony, Alisson Sandoval

Touro Law Review

During the COVID-19 pandemic, when society fought an aggressive and deadly virus, our connection to the outside world became predominantly virtual. Videoconference technology became essential in state and federal civil judicial proceedings. In light of the unprecedented challenges presented by the pandemic and its long-lasting impact on the criminal justice system, this Article argues for amending Federal Rule of Criminal Procedure 26 to permit remote witness testimony when a witness is unavailable.

Community Caretaking Exception Saves Lives . . . The Supreme Court Disagrees, Gabriella Lorenzo

Touro Law Review

As many are aware, the Fourth Amendment protects the people against unreasonable searches and seizures. A warrant is necessary for said activities. While there are a few exceptions to the warrant requirement, the Supreme Court recently held that the community caretaking exception does not extend to the home. Extending this exception to the home would allow police officers to enter and engage in functions that are unrelated to the investigation of a crime. Essentially, this exception would allow police to aid individuals and prevent serious, dangerous situations to protect the community. This Note discusses why the Supreme Court erred in …

The Death Of The Evolving Standards Of Decency, Meghan J. Ryan

Florida State University Law Review

The Eighth Amendment Punishments Clause is in jeopardy. The con-stitutionality of punishments is usually judged according to the “evolv-ing standards of decency that mark the progress of a maturing socie-ty.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living con-stitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diamet-rically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …

“Improve Your Privileges While They Stay”: A Guide To Improve The Privileges Of U.S. Citizenship For Everybody, Joshua J. Schroeder

Touro Law Review

In 1767, the young Phillis Wheatley wrote from her position of slavery in the Wheatley home of Boston to “ye sons of Science” at Harvard College, telling them to “improve your privileges while they stay.” She beheld the startling privileges of learning and discovery bestowed upon an elite group of young, rich white men in Boston and celebrated their privileges. Neither did she scorn those whose luck had placed a bounty of privilege upon their laps, for she likely planned to share in that bounty herself, one day. When she was only 13 or 14, Wheatley sublimely encouraged grown men …

The Death Of The Evolving Standards Of Decency, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …

A Progressive Judiciary? Judicial Review And National Politics From Reconstruction To The Present, Joshua Braver, Gregory A. Elinson

College of Law Faculty Publications

Within legal academia, the conventional historical narrative is that the Supreme Court has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Citing this reactionary tendency, an influential and vocal group of progressive legal scholars have argued that progressives ought to stop defending judicial review and instead devote their energies to eliminating it, or at least aggressively curbing its use. These progressive critics of judicial review (our term) proffer two related historical claims. First, they assert, the Supreme Court has consistently been less progressive than congressional majorities and Presidents. Second, they suggest, even landmark …

A License To Discriminate? 303 Creative V. Elenis And Where The Supreme Court May Go, Christopher J. Manettas

Touro Law Review

No abstract provided.

Reconciling Riverside Bayview Homes, Sackett, And County Of Maui, Stephen Johnson

Articles

Near the end of the 2022 term, the Supreme Court issued its decision in Sackett v. EPA. The case has been described as "the most important Clean Water Act case the Court has ever decided, and ... probably ... one of the most impactful environmental decisions in the Court's history."  For the fourth time, the Court interpreted the meaning of the term "navigable waters" in the Clean Water Act (CWA), and the Sackett Court narrowed the interpretation of the term in a manner that critics claim will eliminate federal protection for more than 50% of the wetlands in the United …

The Evolution Of Race-Based Admissions In American Higher Education, Chenglin Liu

Faculty Articles

This Article examines the Supreme Court’s evolving position on race-based admissions policies over the past 127 years. Between Plessy and Brown, universities used race-based policies to exclude black applicants from white universities. Brown shifted admissions policies from blocking black students to accepting them. As affirmative action gained momentum, universities escalated from merely accepting minority candidates to proactive recruitment by using quotas and lowering their admissions standards. The Court in Bakke set the ground rules for race-based admissions during that period. In 2003, Grutter upheld the university’s pursuit for a “critical mass” of minority students in its entering class. Two …

The Supreme Court’S 2022-23 Access To Court Decisions, Sarah Somers, Abigail Coursolle, Sarah L. Grusin, Jane Perkins

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2022–23 Term yielded significant decisions bringing about goals long-sought by conservatives. This debut Term for the first Black woman Justice also included some results welcomed by progressives, including decisions on voting rights, Native American sovereignty, and individual enforcement of Spending Clause enactments. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on those affecting access for low-income and marginalized litigants. We also look ahead to what the 2023–24 Term may bring for those seeking access to the courts.

The Supreme Court’S Access To Court Decisions In 2023-2024, Jane Perkins, Amanda Avery, Arielle Linsey, Sarah Somers

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2023–24 Term produced a number of controversial decisions, affecting everything from where unhoused people can sleep to the president’s absolute immunity. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on a trio of decisions that curtail the power of administrative agencies. Also highlighted are decisions that address jurisdiction, standing and mootness, sovereign immunity, statutory construction, due process, and equal protection. We close with a brief preview of cases before the Court during the 2024–2025 Term.