Judges Commons^™

The Judicial Reforms Of 1937, Barry Cushman

William & Mary Law Review

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction …

Judging "Under Fire" And The Retreat To Facts, Allison Orr Larsen

William & Mary Law Review

Americans tend to worry about how our current polarized political climate will affect the legitimacy of our courts. Often overlooked in this important conversation is a discussion about what a toxic political dialogue can do—and in fact is doing—to the construction of the law itself. This Article will begin to make the case that judicial decisions themselves change as a result of high-intensity politics. Specifically, I will argue that when judges are “under fire” (to borrow a phrase from Planned Parenthood v. Casey), they tend to cloak their decisions in factual observations about the world that seem neutral and objective, …

First, We'll Neuter All The Judges, A. Benjamin Spencer

Popular Media

No abstract provided.

Summary Dispositions As Precedent, Richard C. Chen

William & Mary Law Review

The Supreme Court’s practice of summarily reversing decisions based on certiorari filings, without the benefit of merits briefing or oral argument, has recently come under increasing scrutiny. The practice is difficult to square with the Court’s stated criteria for granting certiorari and its norms against reviewing fact-bound cases to engage in mere error correction. Nonetheless, there is growing acceptance that the practice is likely to continue in some form, and the conversation has shifted to asking when the use of summary dispositions should be considered proper. Commentators have had no trouble identifying the Court’s tendencies: summary dispositions are most commonly …

A Brief History Of Judical Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review

Thank you so much for that kind introduction. I really appreciate the opportunity to be here today. I am going to talk about the confirmation process generally. There is no better place to talk about it than here. Let me begin with some numbers and statistics, before I turn to the main thrust of my talk, to give some context as to what recent Presidents have done with respect to judicial appointments. President Trump has appointed two Supreme Court Justices, Neil Gorsuch and Brett of Appeals; twenty-nine so far have been confirmed. The Senate Leader, Senator Mitch McConnell, has already …

Of Moral Outrage In Judicial Opinions, Duane Rudolph

William & Mary Journal of Race, Gender, and Social Justice

Moral outrage is a substantive and remedial feature of our laws, and the Article addresses three questions overlooked in the scholarly literature. What do judges mean when they currently express moral outrage in the remedies portion of their opinions? Should judges express such moral outrage at all? If so, when? Relying on a branch of legal philosophy known as hermeneutics that deals with the interpretation and understanding of texts, the Article argues that in interpreting and understanding cases judges should express moral outrage when faced with individuals from communities whose voice has historically been at risk, is currently at risk, …

Here There Be Dragons: The Likely Interaction Of Judges With The Artificial Intelligence Ecosystem, Fredric I. Lederer

Popular Media

No abstract provided.

Virtual Briefing At The Supreme Court, Jeffrey L. Fisher, Allison Orr Larsen

Faculty Publications

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: they are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent the parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case …

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.

A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review Online

This is the transcript of a lecture Mr. McGahn delivered at William & Mary Law School on November 19, 2018.

The Supreme Court's Legitimacy Dilemma, Tara Leigh Grove

Faculty Publications

No abstract provided.

Filling The Ninth Circuit Vacancies, Carl Tobias

William & Mary Bill of Rights Journal

Upon Republican President Donald Trump’s inauguration, the United States Court of Appeals for the Ninth Circuit experienced some pressing appellate vacancies, which the Administrative Office of the United States Courts (AO) carefully identified as “judicial emergencies” because the tribunal resolves a massive docket. Last year’s death of the iconic liberal champion Stephen Reinhardt and the late 2017 departure of libertarian former Chief Judge Alex Kozinski—who both assumed pivotal circuit leadership roles over numerous years—and a few of their colleagues’ decision to leave active court service thereafter, mean the tribunal presently confronts four judicial emergencies and resolves most slowly the largest …

Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes

William & Mary Law Review

Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The …

Democratizing Interpretation, Anya Bernstein

William & Mary Law Review

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

Can Judges Be Uncivilly Obedient?, Brannon P. Denning

William & Mary Law Review

In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed. They were skeptical because, in their opinion, even hyper-formalist legal opinions would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when practiced by non-judicial actors. In this Article, I argue that judicial …

The Power Of "So-Called Judges", Tara Leigh Grove

Faculty Publications

No abstract provided.

The Origins (And Fragility) Of Judicial Independence, Tara Leigh Grove

Faculty Publications

The federal judiciary today takes certain things for granted. Political actors will not attempt to remove Article III judges outside the impeachment process; they will not obstruct federal court orders; and they will not tinker with the Supreme Court’s size in order to pack it with like-minded Justices. And yet a closer look reveals that these “self-evident truths” of judicial independence are neither self-evident nor necessary implications of our constitutional text, structure, and history. This Article demonstrates that many government officials once viewed these court-curbing measures as not only constitutionally permissible but also desirable (and politically viable) methods of “checking” …

Section 2: Trump And The Court, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Judicial Fact-Finding In An Age Of Rapid Change: Creative Reforms From Abroad, Allison Orr Larsen

Faculty Publications

No abstract provided.

The Vanishing Common Law Judge, Neal Devins, David Klein

Faculty Publications

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic shift in …

Federalist Court: How The Federalist Society Became The De Facto Selector Of Republican Supreme Court Justices, Lawrence Baum, Neal Devins

Popular Media

No abstract provided.

Book Review Of Constitutional Personae, Michael N. Umberger

Library Staff Publications

No abstract provided.

Does The 'Mcconnell Principle' Make Sense?, Jeffrey Bellin

Popular Media

No abstract provided.

Now Is The Time: Experts Vs. The Uninitiated As Future Nominees To The U.S. Court Of Appeals For Veterans Claims, Bradley W. Hennings, David E. Boelzner, Jennifer Rickman White

Faculty Publications

Two-thirds of judges appointed to the Court of Appeals for Veterans Claims ("CAVC" or "Court") could and should be drawn from among lawyers experienced in the U.S. Department of Veterans Affairs ("VA") benefits claims adjudication system. It is a specialty court, and like other such courts, its judges would benefit from specialized experience. All stakeholders in the claims system and the Court's work, and most importantly, veterans, would benefit from a Court that has appointees steeped in VA law and adjudication.

How Merrick Garland Could Help Heal America, Jeffrey Bellin

Popular Media

No abstract provided.

Ideological Imbalance: Why Democrats Usually Pick Moderate-Liberal Justices And Republicans Usually Pick Conservative Ones, Lawrence Baum, Neal Devins

Popular Media

No abstract provided.

'"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng

Faculty Publications

This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno

William & Mary Bill of Rights Journal

The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such as whether …