Law Commons^™

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 Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

What’S Your Damage?! The Supreme Court Has Wrecked Temporary Takings Jurisprudence, Timothy M. Harris

University of Miami Law Review

In Cedar Point Nursery v. Hassid, the U.S. Supreme Court unnecessarily expanded the Fifth Amendment’s Takings Clause. In doing so, the Court veered away from established precedent and overturned prior case law—without expressly admitting to doing so.

In 2021, the Court held that a California law allowing union organizers to access private property under certain conditions took away a landowner’s right to exclude others and was (apparently) immediately compensable under the Fifth Amendment’s Takings Clause. Prior law had subjected temporary takings to an uncertain, unpopular, and ambiguous balancing test—but the Cedar Point holding turned temporary takings jurisprudence on its head …

The News Media Engagement Principle: Why Social Media Has Not Actually Overrun The Limited Purpose Public Figure Category, Zachary R. Cormier

University of Miami Law Review

Has the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media. …

You Can’T Teach Old Katz New Tricks: It’S Time To Revitalize The Fourth Amendment, Jeremy Connell

University of Miami Law Review

For over half a century, the Court’s decision in Katz v. United States has been the lodestar for applying the Fourth Amendment. The Katz test has produced a litany of confusing and irreconcilable decisions in which the Court has carved exceptions into the doctrine and then carved exceptions into the exceptions. These decisions often leave lower courts with minimal guidance on how to apply the framework to new sets of facts and leave legal scholars and commenters befuddled and frustrated with the Court’s explanations for the rulings. The Court’s decision in Carpenter v. United States represents the apex of Katz’s …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow

University of Miami Law Review

In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …

Bureaucratic Overreach And The Role Of The Courts In Protecting Representative Democracy, Katie Cassady

Liberty University Journal of Statesmanship & Public Policy

The United States bureaucracy began as only four departments and has expanded to address nearly every issue of public life. While these bureaucratic agencies are ostensibly under congressional oversight and the supervision of the President as part of the executive branch, they consistently usurp their discretionary authority and bypass the Founding Fathers’ design of balancing legislative power in a bicameral Congress.

The Supreme Court holds an indispensable role in mitigating the overreach of executive agencies, yet the courts’ inability to hold bureaucrats accountable has diluted voters’ voices. Since the Supreme Court’s 1984 ruling in Chevron, U.S.A. v. Natural Resources Defense …

Abortion In America After Roe: An Examination Of The Impact Of Dobbs V. Jackson Women’S Health Organization On Women’S Reproductive Health Access, Natalie Maria Caffrey

Senior Theses and Projects

This thesis will examine the limitations in access to abortion and other necessary reproductive healthcare in states that are hostile to abortion rights, as well as discuss the ongoing litigation within those states between pro-choice and pro-life advocates. After analyzing the legal landscape and the different abortion laws within these states, this thesis will focus on the practical consequences of Dobbs on women’s lives, with particular attention to its impact on women of color and poor women in states with the most restrictive laws. The effect of these restrictive laws on poor women will be felt disproportionately due to their …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Voter Due Process And The "Independent" State Legislature, Michael P. Bellis

Northwestern University Law Review

In a series of opinions surrounding the 2020 presidential election, multiple U.S. Supreme Court Justices broke from precedent to signal support of the “independent state legislature theory” (ISLT), a formerly obscure interpretation of state legislatures’ power over the administration of federal elections. Proponents of the ISLT allege that the U.S. Constitution grants state legislatures plenary power in federal election contexts—including the power to discount ballots, redraw legislative maps, or appoint alternative slates of presidential electors. Although the Court denied certiorari in each case, across the denials four current Justices dissented because they considered the ISLT to be a proper interpretation …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

The Counterdemocratic Difficulty, Aziz Z. Huq

Northwestern University Law Review

Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation …

Sounding The Legitimacy Alarm Bell: When Does The Media Discuss The U.S. Supreme Court’S Legitimacy?, Rachael Houston

Journal of Race, Gender, and Ethnicity

These media outlets cover the Court in such ways because they openly promote a particular political ideology through endorsements, donations, ownership, or slant in coverage. They cater to audiences with similar political beliefs and tailor their coverage accordingly. For example, Fox News was created by Rupert Murdoch to appeal to a conservative audience. So, its content is purposefully conservative and assessed as right-leaning by media bias charts. As a result, polling data reveals that Republicans trust Fox News more than any other outlet. At the same time, Robert “Ted” Turner, the founder of CNN, is a donor to left-progressive causes …

Supreme Court Legitimacy Under Threat? The Role Of Cues In How The Public Responds To Supreme Court Decisions, Laura Moyer, Scott Boddery, Jeffrey Yates, Lindsay Caudill

Journal of Race, Gender, and Ethnicity

Understanding how the public views the Court and its rulings is crucial to assessing its institutional stability. However, as scholars note, “People are broadly supportive of the court and believe in its ‘legitimacy’—that is, that Supreme Court rulings should be respected and followed. But we don’t know that much about whether people actually agree with the case outcomes themselves.” In this article, we highlight empirical research investigating the factors that affect public agreement with Court decisions, highlighting recent developments from our work. At the onset, it is to note that the public generally hears about the Court’s decisions from media …

The Distribution Of Justices' Votes And Countering National Disunity, Nicholas L. Georgakopoulos

FIU Law Review

The estimation of the distribution that matches the voting of the justices of the Supreme Court shows that voting is correlated and reveals three phenomena: an outlier distribution produced by one composition of the Court, the surprising frequency of unanimous decisions, and the intensity with which the Court avoids 4–4 decisions. The intensity with which the Court avoids 4–4 splits and the strength of the drive to produce unanimous decisions seem sensitive to national disunity. At times of greater disunity, 1965 to 1975 and 2001 to 2020, the Court avoids 4–4 splits more intensely and has a greater fraction of …

Political Equality, Gender, And Democratic Legitimation In Dobbs, Aliza Forman-Rabinovici, Olatunde C.A. Johnson

Faculty Scholarship

This Article examines the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, demonstrating how the Court deploys new arguments about women’s political equality — alongside long-standing arguments about federalism and judicial minimalism — to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy — such as partisan politics and gerrymandering — as well the absence of women in the …

The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron And More, Jack M. Beermann

Faculty Scholarship

The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. …

Chisholm V. Georgia (1793): Laying The Foundation For Supreme Court Precedent, Abigail Stanger

The Cardinal Edge

No abstract provided.

Court Legitimacy & The Shadow Docket, Colton Tilley

Honors Theses

No abstract provided.

The Right To Counsel In A Neoliberal Age, Zohra Ahmed

Faculty Scholarship

Legal scholarship tends to obscure how changes in criminal process relate to broader changes in the political and economic terrain. This Article offers a modest corrective to this tendency. By studying the U.S. Supreme Court’s right to counsel jurisprudence, as it has developed since the mid-70s, I show the pervasive impact of the concurrent rise of neoliberalism on relationships between defendants and their attorneys. Since 1975, the Court has emphasized two concerns in its rulings regarding the right to counsel: choice and autonomy. These, of course, are nominally good things for defendants to have. But by paying close attention to …

The Influence Of The Federalist Society On Judical Politics And Law In The United States, Peter S. K. Lynch

Theses and Dissertations--Political Science

This dissertation examines the Federalist Society, which is a network of conservative and libertarian attorneys, judges, law professors, and law students. The organization was founded by law students at Harvard Law School, Yale Law School, and the University of Chicago Law School in 1982, and has, over the last four decades, come to play a central role in law and politics in the United States. Individuals affiliated with the Federalist Society influence the law through a variety of avenues.

Federalist Society-members advance the goals of the conservative legal movement in a variety of capacities—by writing amicus curiae briefs providing the …

“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom

St. Mary's Law Journal

Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.

The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

Scholarly Works

Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

Rbg And Gender Discrimination, Eileen Kaufman

Scholarly Works

No abstract provided.

Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag

Faculty Articles

In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices …

Reform Through Resignation: Why Chief Justice Roberts Should Resign (In 2023), Scott P. Bloomberg

Faculty Publications

Many proponents of reforming the Supreme Court have expressed support for adopting a system of eighteen-year staggered term limits. These proposals, however, are hobbled by constitutional constraints: Amending the Constitution to implement term limits is highly implausible and implementing term limits through statute is likely unconstitutional. This Essay offers an approach to implementing term limits that avoids these constitutional constraints. Just as President Washington was able to establish a de facto Presidential term limit by not seeking a third term in office, Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. …

Campaigning For The Court: The Effect Of Presidential Campaign Rhetoric On The Supreme Court, Mackey O'Keefe

Honors Projects

This paper investigates how presidential candidates speak about the Supreme Court on the campaign trail, and how the ideological tenor of their rhetoric influences outcomes on the Court. Rhetoric is a powerful and well-researched tool of the presidency and has often been called “the power to persuade.” Much of judicial politics scholarship works to describe judicial decision making, investigating what constrains the actions and decisions of the Supreme Court. Though some scholarship has examined how presidential rhetoric affects the Supreme Court, little has been conducted in the area of presidential campaigns. This paper argues that presidential campaign rhetoric influences the …