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Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes
Warren S Grimes
The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes
Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes
Warren S Grimes
The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …
Of “Just Systems” And Lotteries: Thoughts And Reflections On Maples V. Thomas, Ryan K. Melcher
Of “Just Systems” And Lotteries: Thoughts And Reflections On Maples V. Thomas, Ryan K. Melcher
Ryan K Melcher
In 2012, the Supreme Court handed down its seven-to-two ruling in the case of Maples v. Thomas, a sad tale of attorney-ethics disasters and a seemingly broken (assuming it ever worked) Alabama criminal-justice system. Although the Court held that the “extraordinary” facts of the case warranted excusing Maples’s procedural default in his federal habeas corpus petition (namely, his failure to file a petition in time), it did not make entirely clear whether this was a one-time-only deal or a “template” (as dissenting Justice Scalia asserted) for future petitioners seeking relief based on similar falters of their post-conviction-level attorneys. This Article …
The Pro-Employee Bent Of The Roberts Court, Lisa D. Taylor
The Pro-Employee Bent Of The Roberts Court, Lisa D. Taylor
Lisa D Taylor
A surprising yet readily discernible trend is emerging from recent United States Supreme Court decisions – a trend favoring the rights of individual employees in cases requiring interpretation of federal employment statutes. Though marquee employment-context cases like Wal-Mart Stores, Inc. v. Dukes may be touted as exemplifying the pro-business tendencies of the Roberts Court, a closer and more comprehensive look suggests that the Court does not favor business interests at all, at least in the workplace. Indeed, the relative dark-horses of the Court’s last Term suggest the opposite – all three of the Court’s most recent decisions interpreting federal employment …
The Extension Clause And The Supreme Court's Jurisdictional Independence, Alex Glashausser
The Extension Clause And The Supreme Court's Jurisdictional Independence, Alex Glashausser
Alex Glashausser
This Article challenges the prevailing doctrinal, political, and academic view that the Extension Clause—which provides that “[t]he judicial Power shall extend” to nine types of cases and controversies—justifies legislative attempts to strip the Supreme Court of appellate jurisdiction. Legislators have repeatedly introduced bills seeking to prevent the Court from hearing cases on politically charged topics such as marriage, religion, and abortion. Scholars have relied on the Extension Clause to advance three arguments in support of such jurisdiction-stripping: (1) that “judicial Power” is not jurisdiction, and thus jurisdiction is not constitutionally protected; (2) that “shall” is not mandatory, and thus the …
Cooperation And Division: An Empirical Analysis Of Voting Similarities And Differences During The Stable Rehnquist Court Era—1994 To 200, Mark S. Klock
Mark S Klock
The Stable Rehnquist Court Era (SRCE) covers the period from the appointment of Justice Breyer to the passing of Chief Justice Rehnquist. There has been only one longer period of stability in the Court’s history, and that was in the early nineteenth century when far fewer cases were decided. Thus the SRCE presents a unique opportunity with a large number of observations to conduct statistical analysis of the Justices’ votes while the composition of the Court is held constant. I present a statistical empirical analysis of voting for this period both for the potentially interesting results that can be learned, …
Conflict In The Court? Supreme Court Recusal From Marbury To The Modern Day, James Sample
Conflict In The Court? Supreme Court Recusal From Marbury To The Modern Day, James Sample
James Sample
For justices of the U.S. Supreme Court, controversies pitting personal conflicts ¬¬— whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison. For all its seminal import, in Marbury, Chief Justice John Marshall adjudicated a case involving, inter alia, the validity of judicial commissions Marshall had himself signed and sealed while serving simultaneously as the outgoing Secretary …