Supreme Court of the United States Commons^™

Brief Of Richard W. Garnett, Michael Stokes Paulsen, & Eugene Volokh As Amici Curiae In Support Of Petitioners, Kevin C. Walsh, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 12-1168
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

This Court granted certiorari in Hill v. Colorado “[b]ecause of the importance of the case.” 530 U.S. 703, 714 (2000). The Court should grant certiorari in this case because of the importance of placing limits on Hill.

The Court does not need to overrule Hill to contain the damage wrought by the First Circuit’s expansion of it. But the Court should contain Hill and thereby prevent further erosion of …

The Supreme Court And Celebrity Culture, Richard A. Posner

Chicago-Kent Law Review

No abstract provided.

Opinion Announcements, Tony Mauro

Chicago-Kent Law Review

When the Supreme Court handed down its landmark decision on the fate of the Affordable Care Act on June 28, 2012, several news organizations rushed to report, incorrectly, that the court had overturned the law. Those making the error did not wait for Chief Justice John Roberts Jr. to complete his twenty-minute announcement of the opinion from the bench. But anyone who had listened to the opinion announcement from start to finish would almost certainly have gotten it right.

This article examines the rarely discussed tradition of Supreme Court opinion announcements and their role in the interplay between the court, …

The Court And The Visual: Images And Artifacts In U.S. Supreme Court Opinions, Nancy S. Marder

Chicago-Kent Law Review

This Article contributes to the literature on the visual and the law by providing new empirical research on the use of images in U.S. Supreme Court opinions. In the trial court, the concern about using images is well known. In the highest court of the land, however, the use of images has been little studied and little discussed. This Article includes a comprehensive review of all images that appear in all opinions between 1997 and 2009. It also examines three paradigmatic images—maps, artifacts, and photos—and how they are used in three opinions. The use of maps and artifacts is the …

Deference To Authority As A Basis For Managing Ideological Conflict, Tom Tyler, Margarita Krochick

Chicago-Kent Law Review

American’s are polarized in their views about a variety of social and economic issues. This raises the question how political and legal institutions can develop policies and practices that will be accepted by all the various sides to a public controversy. One approach is to build legitimacy, since people are generally more willing to defer to legitimate authorities. The results of a study in which people are asked about their willingness to accept decisions made by the Supreme Court or Congress suggests that the process through which institutions make policy decisions shapes deference in ways that are distinct from the …

Beyond The Opinion: Supreme Court Justices And Extrajudicial Speech, Christopher W. Schmidt

Chicago-Kent Law Review

This Article examines how and why Supreme Court justices venture beyond their written opinions to speak more directly to the American people. Drawing on the history of the post-New Deal Court, I first provide a general framework for categorizing the kinds of contributions sitting justices have sought to make to the public discourse when employing various modes of extrajudicial speech—lectures, interviews, books, articles, and the like. My goal here is twofold: to provide a historically grounded taxonomy of the primary motivations behind extrajudicial speech; and to refute commonplace claims of a lost historical tradition of justices refraining from off-the-bench commentary …

Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee

Chicago-Kent Law Review

The Supreme Court has an uneasy relationship with openness: it complies with some calls for transparency, drags its feet in response to others, and sometimes simply refuses to go along. I argue that the Court’s position is understandable given that our digital age of fluid information has often been heralded in terms that are antithetical to the Court’s operations. Even so, I also argue the Court actually has little to fear from greater transparency. The understanding of the Court with the greatest delegitimizing potential is the understanding that the justices render decisions on the basis of political preference rather than …

The U.S. Supreme Court And Information Technology: From Opacity To Transparency In Three Easy Steps, Jerry Goldman

Chicago-Kent Law Review

In this comment, I focus on three areas in which the Supreme Court of the United States could improve information sharing with the public: accessibility, data structure, and information standards. I then propose three simple and low-cost steps to address each of these areas.

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 …

Judicial Ethics And Supreme Court Exceptionalism, Amanda Frost

Scholarly Articles in Law Reviews & Journals

In his 2011 Year-End Report on the Federal Judiciary, Chief Justice John Roberts cast doubt on Congress’s authority to regulate the Justices’ ethical conduct, declaring that the constitutionality of such legislation has “never been tested.” Roberts’ comments not only raise important questions about the relationship between Congress and the Supreme Court, they also call into question the constitutionality of a number of existing and proposed ethics statutes. Thus, the topic deserves close attention.

This Essay contends that Congress has broad constitutional authority to regulate the Justices’ ethical conduct, just as it has exercised control over other vital aspects of the …

Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Christopher J. Paolella, Anthony J. Bellia

Court Briefs

No. 10-1491
Esther Kiobel v. Royal Dutch Petroleum Co.

On Writ of Certiorari to the United States Cour of Appeals for the Second Circuit

From the Summary of Argument

This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Brief Amici Curiae Of Professor Eugene Volokh, National Council Of The Churches Of Christ In The Usa, Baptist Joint Committee For Religious Liberty, Queens Federation Of Churches, National Association Of Evangelicals, And Christian Legal Society In Support Of Petitioner, Richard W. Garnett, K. Hollyn Hollman, Melissa Rogers, Kimberlee Wood Colby, Thomas C. Berg, Carl H. Esbeck

Court Briefs

No. 10-553
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of Argument

This case is about the separation of church and state, an arrangement that is sometimes misunderstood and whose scope is debated, but which is nevertheless a critical dimension of the religious freedom reflected in, and protected by, the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism and the project of protecting political freedom by marking boundaries to the power of …

Brief Amicus Curiae Of The American Center For School Choice In Support Of Petitioners, Richard W. Garnett, John E. Coons

Court Briefs

Nos. 09-987, 09-991
Arizona Christian School Tuition Organization v. Kathleen M. Winn, Gale Garriott v. Kathleen M. Winn

On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Introduction and Summary of the Argument

We agree entirely with Petitioners that the panel below misapplied this Court’s relevant doctrines and decisions – including Zelman – and that the ruling under review is neither required by, nor consistent with, the First Amendment to our Constitution. Arizona’s tax-credit program does not impermissibly “establish” or “endorse” religion. Instead, it is an entirely permissible (and promising) policy experiment …

Brief Amici Curiae Of Christian Medical And Dental Associations, Beta Upsilon Chi, And Officers Of Various Christian Legal Society Student Chapters In Support Of Petitioner, Kelly J. Shackelford, Hiram S. Sasser Iii, Jeffrey C. Mateer, Roger L. Byron, Erin Leu, Thomas C. Berg, Richard W. Garnett

Court Briefs

No. 08-1371
Christian Legal Society Chapter of University of California, Hastings College of the Law v. Leo P. Martinez

On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

From the Introduction and Summary of Argument

This case poses the question whether a student group organized around religious beliefs will be able to ensure these beliefs are shared by its leaders and voting members, and still be able to participate in a program at a public educational institution designed to encourage speech from a wide range of student groups.

The University of California-Hastings Law School …

Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioners, Ryan A. Shores, Richard W. Garnett

Court Briefs

No. 09-592
Eleanor McCullen v. Martha Coakley

On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit

From the Summary of Argument

The Court should grant certiorari to reverse the First Circuit's decision upholding against First Amendment challenge a prohibition on public-forum speech that applies only at freestanding clinics where abortions are performed, exempts clinic agents and employees, and criminalizes peaceful, non-obstructive speech, including conversation with willing listeners, stationary handbilling, and speech from a conversational distance. By granting certiorari, the Court can begin to reconstruct a consensus on free speech principles that …

Misplaced Modifiers - Say What, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introductory Note To The Supreme Court Of The United States: Noriega V. Pastrana, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Defending The Majoritarian Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Native Hawaiians And The Ceded Lands Trust: Applying Self-Determination As An Alternative To The Equal Protection Analysis, R. Hōkūlei Lindsey

American Indian Law Review

No abstract provided.

The Abolition Of The Death Penalty In New Jersey And Its Impact On Our Nation's "Evolving Standards Of Decency", Aaron Scherzer

Michigan Journal of Race and Law

In 2007, New Jersey became the first state in over forty years to abolish the death penalty legislatively. Twenty-five years earlier, in 1982, New Jersey had followed a state-level trend by reinstating its death penalty. However, during the twenty-five years between reinstatement and abolition, New Jersey did not conduct a single execution. Instead, the New Jersey Supreme Court reversed numerous death penalty cases and consistently narrowed the class of cases eligible for the death penalty. This Note posits that the supreme court's narrowing of eligible cases was one of the factors that prevented executions from taking place in New Jersey. …

Supreme Court Reversals: Exploring The Seventh Court, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Brief Of Amici Curiae Law Professors In Support Of Petitioner Goss International Corp., Salil Kumar Mehra, Jay Tidmarsh

Court Briefs

No. 07-618
Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit

From the Introduction and Summary of Argument

This case presents issues of jurisdiction, equity, and international comity that require this Court’s resolution. As we understand the facts, in 2003 the petitioner, Goss International, obtained a judgment under the Antidumping Act of 1916, 15 U.S.C. § 72 (2000) (repealed 2004), against the respondents, which are a Japanese corporation and its wholly-owned American subsidiary. The consonance between the Antidumping Act and the obligations of the …

The Supreme Court Giveth And The Supreme Court Taketh Away: An Assessment Of Corporate Liability Under § 1350, Saad Gul

West Virginia Law Review

No abstract provided.

Brief Amici Curiae Of Christian Legal Society, National Association Of Evangelicals, Pro-Life Legal Defense Fund, Alliance Defense Fund And Concerned Women For America In Support Of Petitioner, Gregory S. Baylor, Steven H. Aden, Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 05-1382
Alberto R. Gonzales v. Planned Parenthood Federation of America, Inc.

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Summary of Argument

For as long as the American public has known about partial-birth abortion, we have—by comfortable and consistent margins—agreed with former Senator Daniel Patrick Moynihan that this gruesome practice is “infanticide, and one would be too many.” Meet the Press (NBC television broadcast, Mar. 2, 1997). Whether we oppose elective abortions as a matter of moral principle or regard a woman’s legal access to abortion as a component of …

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In Cases Involving Sites Of Religious Significance, Plaintiffs Will Fall In The Gap Of Judicial Deference That Exists Between The Religion Clauses Of The First Amendment, Jeff Pinter

American Indian Law Review

No abstract provided.

Giving Up The "I": How The National Museum Of The American Indian Appropriated Tribal Voices, Whitney Kerr

American Indian Law Review

No abstract provided.

Brief Amicus Curiae Of Professors David L. Callies, James T. Ely, Paula A. Franzese, Nicole Stelle Garnett, James E. Krier, Daniel R. Mandelker, John Copeland Nagle, John Nolon, J.B. Ruhl, Shelley Ross Saxer, A. Dan Tarlock, Laura Underkuffler, And Edward F. Ziegler In Support Of Petitioners, David L. Callies, Nicole Stelle Garnett, John Copeland Nagle

Court Briefs

No. 04-108
Susette Kelo v. City of New London

On Writ Of Certiorari To The Supreme Court of Connecticut

From the Summary of Argument

The Connecticut Supreme Court's decision was in keeping with Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which provides that legislative assertions of public use should be subjected to rational basis review. The application of such broadly deferential review in public use cases is inappropriate. Application of rational basis review to the exercise of eminent domain in cases such as this effectively eviscerates the Fifth Amendment's public use limitation. Moreover, lower courts' responses to …

Colonizing The Last Frontier, David J. Bloch

American Indian Law Review

In Aboriginal Rights and Judicial Wrongs: The Colonization of the Last Frontier, I examine a recent sea-change in federal Indian law that has escaped the notice of scholars. In the light of the divestiture of tribal sovereignty characterizing recent Supreme Court decisions, my article interrogates a contemporary case that rejects the property principle underlying all of federal Indian law itself in favor of a conception of aboriginal title never before countenanced in the United States and long discredited elsewhere. My analysis argues that this new conception traduces 175 years of American precedent and violates international law. I also contend that …