Judges Commons^™

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 …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Northwestern University Law Review

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Counting To Four: The History And Future Of Wisconsin's Fractured Supreme Court, Jeffrey A. Mandell, Daniel J. Schneider

Marquette Law Review

Over the past decade, the Wisconsin Supreme Court has issued “fractured” opinions—decisions without majority support for any one legal rationale supporting the outcome—at an alarming clip. These opinions have confounded legal analysts, attorneys, and government officials due to their lack of majority reasoning, but also due to their length and the court’s particular procedures for assigning, drafting, and labelling opinions. This has become especially problematic where the court has issued fractured opinions in areas core to the basic functioning of state and local government, leaving the state without clear precedential guidance on what the law is. Yet, virtually no one …

Justice Ginsburg's Journey To Dissents And Influence On Reproductive Rights, Songo Wawa

University of the District of Columbia Law Review

Justice Ruth Bader Ginsburg’s advocacy for gender equity, evidenced by her nationally famous dissents, began long before her 27 years on the Supreme Court. Prior to becoming a Supreme Court Justice, Attorney Ginsburg’s early experiences of gender inequity led to her advocacy for women’s rights as a law professor and as co-founder of the American Civil Liberties Union’s Women’s Rights Project. 1 Attorney Ginsburg’s legal strategy encompassed her pragmatic approach to voicing her opinions about gender equality. 2 In Gonzales v. Carhart, both her dissent announcement and written dissent demonstrated Justice Ginsburg’s commitment to women’s reproductive autonomy.3 Without Justice Ginsburg’s …

The Court And The Private Plaintiff, Elizabeth Beske

Scholarly Articles in Law Reviews & Journals

Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …

Supreme Court Interruptions And Interventions: The Changing Role Of The Chief Justice, Tonja Jacobi, Matthew Sag

Faculty Articles

Interruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices improved in recent years, and whether the structural change in argument helped. It shows that interruptions decreased during the pandemic but then resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for …

The Judicial Activism Of Justice Anthony Kennedy, Carlos A. Ball

American University Law Review

Few recent Supreme Court justices have had a greater impact on constitutional law than Anthony Kennedy. Although commentators have explored the substance of Justice Kennedy’s jurisprudence in some detail, legal scholars have not systematically analyzed the extent of his judicial activism. This Article uses the term “judicial activism” descriptively rather than normatively to help account for a judge’s willingness to strike down federal, state, and local laws on constitutional grounds. It finds that, under a descriptive definition, when compared to the justices with whom he served, Justice Kennedy was a singularly judicial activist judge.

This conclusion rests on three findings. …

A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq

Journal of Race, Gender, and Ethnicity

This article will discuss in detail exactly how the court is illegitimate and makes decisions that are illegitimate, using examples from the October 2021 term. It will also explain why action needs to be taken immediately to reign in this run-away Court to restore public trust. As discussed herein, we cannot sit by and patiently wait for the Court to right itself over time because there are important issues on the current docket, such as race-conscious admissions policies of colleges and universities to ensure student bodies are diverse as future leaders are prepared to live and work in a diverse …

Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq

Journal of Race, Gender, and Ethnicity

This Note will discuss some of the Commission’s findings and other interesting suggestions to determine whether it is possible to rein in the modern-day Court. Part I will explain the inherently political nature of the Supreme Court. Part II will briefly present how the Supreme Court acquired its power. Part III will discuss several prominent proposals for Supreme Court reform. Finally, Part IV will examine whether any recommendations may depoliticize the Court.

The Paradox Of Juridical Secularism: An Illustration Through The Cases Of Sabarimala And Hijab, Sukriti .

National Law School Journal

Secularism in India was imagined in cognisance of religion's entrenchment in the public life of the country as well as in people’s identities. This form of secularism was made possible within the Constitution of India through a broad framing of religious freedoms that was limited by statist concerns such as public order, morality, and health. In the face of rising majoritarianism, secular values are under serious challenge, impacting the right to religious freedom and expression. In the face of this challenge, this article assesses the judiciary’s engagement with religion on issues of discrimination against women. The article contends that the …

How Gender-Biased Oral Argument Interruptions Opened The Door For Chief Justice Roberts To Be A Transformational Leader, Christina L. Boyd, Sidney E. Shank

Scholarship@WashULaw

In a 2021 NYU Law School conversation with Justice Sonia Sotomayor, the Justice was asked whether she observed higher levels of interruptions of female Justices, relative to their male colleagues, during the Supreme Court’s oral arguments. Justice Sotomayor responded in the affirmative:

“Did I notice it as a dynamic? Without question . . . but I don’t know of a woman who hasn’t. Meaning, regrettably, that is a dynamic that exists not just on the court but in our society in general. Most of the time, women say things, and they’re not heard in the same way [as] men [who] …

The Endgame Of Court-Packing, Kyle Rozema, Daniel Epps, Adam Chilton, Maya Sen

Scholarship@WashULaw

At several points in history, politicians and commentators have proposed adding seats to the Supreme Court to accomplish partisan ends. We explore the incentives for a political party to initiate “court-packing” and what the Supreme Court would look like in a world where political parties engage in repeated partisan court- packing. To do so, we use an Agent-Based Model and different data sources to calibrate the behaviors of Presidents, Congresses, and Supreme Court justices. We then simulate the future composition of the Court in worlds with and without court-packing. The simulations suggest that a political party with an initial minority …

The Failed Idea Of Judicial Restraint: A Brief Intellectual History, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

This essay examines the intellectual history of the idea of judicial restraint, starting with the early debates among the US Constitution’s founding generation. In the late nineteenth century, law professor James Bradley Thayer championed the concept and passed it on to his students and others, including Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, and Felix Frankfurter, who modified and applied it based on the jurisprudential preoccupations of a different era. In a masterful account, Brad Snyder examines Justice Frankfurter’s attempt to put the idea into practice. Although Frankfurter arguably made a mess of it, he passed the idea of …

Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton

American University Journal of Gender, Social Policy & the Law

There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.

American University Law Review Keynote Address, Erwin Chemerinsky

American University Law Review

My talk this morning focuses on the agenda of the current Roberts Court. I think that every Supreme Court can be said to have an agenda. Sometimes it seems conscious and deliberate, apparent from the outset. Sometimes it seems to evolve and only becomes obvious later.

The Purcell Principle And The Antiblackness Of Constitutional Fundamentalism, Brittany Carter

American University Law Review

In Milligan v. Merrill, a district court in Alabama found that the state legislature designed Alabama’s new congressional district map in a way that diminished Black political power, and ordered the legislature to redraw its map to remedy the violation. Two weeks later, the Supreme Court stayed the district court’s order, allowing Alabama’s congressional elections to proceed under the discriminatory maps. The only stated rationale, offered by Justices Kavanaugh and Alito in a concurring opinion, was the so-called Purcell principle – the notion that federal courts should not enjoin a state’s election laws in the period close to an election. …

The Absurd Reach Of A "Colorblind" Constitution, David Hinojosa, Genevieve Bonadies Torres

American University Law Review

Affirmative action has long spurred debates over whether the Equal Protection Clause and subsequent civil rights legislation were intended to permit policies aimed at disrupting racial hierarchies, dismantling systemic discrimination, and ensuring equal opportunity for Black people and other historically marginalized groups. The current lawsuits pending before the Supreme Court challenging affirmative action admissions programs at the University of North Carolina at Chapel Hill (UNC) and Harvard College are no exception. Like prior lawsuits, the plaintiff in both cases—Students for Fair Admissions (“SFFA”)—and its amici seek to turn back the clock on racial diversity at selective universities by urging the …

Managing Judicial Discretion: Qualified Immunity And Rule 12(B)(6) Motions, Zachary R. Hart

Indiana Law Journal

Qualified immunity is a judicially created doctrine that shields government officials from personal liability for civil damages. Courts applying the doctrine, which is heavily dependent on the facts of the case, must determine whether the government officials’ conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. This inquiry is discretionary as judges must determine if the alleged violation was “clearly established,” a term that the Supreme Court has defined in conflicting ways. Moreover, when federal judges conduct the qualified immunity inquiry at the Rule 12(b)(6) motion to dismiss stage, their decision is …

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

The Cardinal Edge

No abstract provided.

Homogenous Diversity, Melissa Mortazavi

Other Faculty Publications

No abstract provided.

Aggregate Stare Decisis, Kiel Brennan-Marquez

Indiana Law Journal

The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of …

How In The World Could They Reach That Conclusion?, Hon. Carlton Reeves

Dickinson Law Review (2017-Present)

No abstract provided.

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

News Treatment Of The Supreme Court: Language Selection, Ideological Directions, And Public Support, Alexander Denison

Theses and Dissertations--Political Science

In an increasingly diverse media landscape, how much of the ideological trends seen in current news reporting affect coverage of the U.S. Supreme Court? This work examines two different aspects of the Court's activities, their decisions and the confirmation hearings of Court nominees, analyzing what factors, if any, lead to differences in coverage language. Finally, through the use of a survey experiment, I analyze whether these differences in language, in combination with positive symbolic imagery, affect attitudes toward the institution. This work provides a novel consideration of whether the Court is subject to the same ideological slant found in coverage …

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 …

“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray

Touro Law Review

There is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Justice Accused At 45: Reflections On Robert Cover’S Masterwork, Sanford Levinson, Mark A. Graber

Touro Law Review

We raise some questions about the timeliness and timelessness of certain themes in Robert Cover’s masterwork, Justice Accused, originally published in 1975. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases in the antebellum United States, played out in the United States first when Cover was writing nearly fifty years ago, and then play out in the United States today. The moral-formal dilemma faced by the justices that Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the …

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …