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Full-Text Articles in Law
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
What Members Of Congress Say About The Supreme Court And Why It Matters, Carolyn Shapiro
Chicago-Kent Law Review
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process—what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers—evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A …
Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen
Keynote Address: Judging The Political And Political Judging: Justice Scalia As Case Study, Richard L. Hasen
Chicago-Kent Law Review
This is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. In this Address, Professor Hasen considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance on the one hand to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. …
Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collins Jr.
Neil Gorsuch And The Ginsburg Rules, Lori A. Ringhand, Paul M. Collins Jr.
Chicago-Kent Law Review
Supreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the …
Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer
Taking Judicial Legitimacy Seriously, Luis Fuentes-Rohwer
Chicago-Kent Law Review
Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, …
Judicial Overstating, Dan Simon, Nicholas Scurich
Judicial Overstating, Dan Simon, Nicholas Scurich
Chicago-Kent Law Review
Ostensibly, we are all Legal Realists now. No longer do legal theorists maintain that judicial decision making fits the mechanical and formalist characterizations of yesteryear. Yet, the predominant style of American appellate court opinions seems to adhere to that improbable mode of adjudication: habitually, opinions provide excessively large sets of syllogistic reasons and portray the chosen decision as certain, singularly correct, and as determined inevitably by the legal materials. This article examines two possible explanations for this rhetorical style of Judicial Overstatement. First, we review the psychological research that suggests that judicial overstatement is a product of the cognitive processes …