Supreme Court of the United States Commons^™

Executive And Judicial Overreaction In The Guantanamo Cases, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court in Rasul v. Bush and Al-Odah v. United States held that detainees at Guantanamo Bay may challenge their detentions via writs of habeas corpus. Justice Stevens' majority opinion held that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." This holding is potentially unbounded, perhaps enabling someone detained at Kandahar or even Diego Garcia to challenge his detention via the great writ. It appears to be a striking break from the 1950 Johnson v. Eisentrager decision, which strongly intimated that …

Beyond The Supreme Court: A Modest Plea To Improve Our Asylum System, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

Moderating a session at the Workshop on the Supreme Court and Immigration and Refugee Law at the Georgetown University Law Center, Peter Spiro asked just how important the Supreme Court really is to refugee and immigration law. Unfortunately, the Supreme Court has actively interpreted the Refugee Convention and Protocol, and its decisions have had an adverse affect on important protection issues. James Hathaway knows this well. Yet his article focuses on the two Supreme Court decisions that most practitioners and scholars agree have not translated into serious protection problems in the United States or abroad.

The Warren Court And The Concept Of A Right, David Luban

Georgetown Law Faculty Publications and Other Works

The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not …

On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit, Brief Of Law Professors Paul F. Rothstein, Et. Al., Office Of The President V. Office Of Independent Counsel, Paul F. Rothstein, Ronald J. Allen, Margaret A. Berger, William J. Bridge, Paul C. Giannelli, Stephen Gillers, Laird C. Kirkpatrick, David P. Leonard, Miguel A. Mendez, Roger C. Park, Myrna S. Raeder, John W. Reed, Mark Reutlinger, Leo M. Romero, Stephen A. Saltzburg, Peter Tillers

U.S. Supreme Court Briefs

This Court should grant review not only because this is a case of national importance and prominence, but also because the decision below is a conspicuous departure from settled principles of evidence law. The panel majority concluded that communications between government lawyers and government officials are not protected by the attorney-client privilege, at least when those communications are sought by a federal grand jury. That conclusion conflicts with the predominant common-law understanding that the attorney-client privilege applies to government entities and that where the privilege applies, it is absolute (i.e., it protects against disclosure in all types of legal and …

Color-Coded Standing, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

Remarkably, the Supreme Court has held that whites who wish to challenge the constitutionality of affirmative action plans have standing to do so. In Northeastern Florida Chapter of the Associated General Contractors v. City of Jacksonville the Supreme Court upheld the standing of non-minority construction contractors to challenge a minority setaside program under the Equal Protection Clause of the United States Constitution. What is remarkable is not that the result reached in the case was wrong, but that the Court was able to reach that result given its most recent standing precedents. In previous Terms, the Supreme Court had taken …

Foreword: "Do What You Can...", Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

"Do what you can with what you have." That's what Thurgood Marshall preached. That is how he lived. He used what he had to change the world forever.

Pure Politics, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The present Supreme Court has been noticeably unreceptive to legal claims asserted by racial minorities. Although it is always possible to articulate nonracial motives for the Court's civil rights decisions, the popular perception is that a politically conservative majority wishing to cut back on the protection minority interests receive at majority expense now dominates the Supreme Court. In reviewing the work of the Court during its 1988 Term, The United States Law Week reported that "[a] series of civil rights decisions by a conservative majority of the U.S. Supreme Court making it easier to challenge affirmative action programs and more …

Spinning The Legislative Veto, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

I am delighted to have been given the opportunity to comment on Judge Breyer's proposal for a fast-track substitute to the legislative veto. Although the Supreme Court invalidated the legislative veto device in INS v. Chadha, Judge Breyer's proposal demonstrates that innovative thinking may well permit those with enough determination to circumvent the apparent effect of the Court's decision. Even more important, the proposal illustrates why such circumvention is possible.

As a doctrinal matter, the legislative veto poses a real dilemma--one that is rooted in fundamental uncertainty about the proper relationship between the Supreme Court and the elected branches of …

Deconstructing The Legislative Veto, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

On June 23, 1983, the Supreme Court invalidated more federal statutes in a single day than it had in all of its prior history. In so doing, the Court also dramatically altered the allocation of governmental power between Congress and the President. At least that is how the press viewed the significance of INS v. Chadha, the decision invalidating the legislative veto device on which Congress had come to rely as an expedient method of controlling the exercise of executive discretion. Whether or not the hyperbole proves to have been warranted, the decision does possess a certain intrigue-it is not …

Functional Analysis Of The Plain-Error Rule, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

In this article, I attempt to do two things at once. First, I attempt to analyze the Supreme Court's jurisdiction to conduct "plain-error" review of state court decisions. The plain-error issue merits consideration not only because of its intrinsic interest and arguable complexity, but also because the question whether the Supreme Court is authorized to engage in plain-error review is an open one that I would like to help resolve. My second objective, however, is the more important of the two. In the context of analyzing plain-error review, what I really want to do is analyze legal analysis itself. There …