Supreme Court of the United States Commons^™

A Voice In The Wilderness: John Paul Stevens, Election Law, And A Theory Of Impartial Governance, Cody S. Barnett, Joshua A. Douglas

William & Mary Law Review

Justice John Paul Stevens retired from the Supreme Court almost a decade ago and turned ninety-eight years old in April 2018. How should we remember his legacy on the Supreme Court? This Article places his legacy within his election law jurisprudence. Specifically, Justice Stevens provided a consistent theory, which we term “impartial governance,” that has had a lasting impact on the field. This theory undergirds Justice Stevens’s creation of the important Anderson-Burdick-Crawford balancing test that federal courts use to construe the constitutionality of laws that impact the right to vote, such as voter ID laws. It is part of his …

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws, rather …

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …

Cardozo On The Supreme Court: Meeting High Expectations, Richard D. Friedman

Articles

President Trump announced his nomination of Neil Gorsuch — the sixth most senior judge on a federal appellate court in the hinterland—for a seat on the Supreme Court in a formal, nationally televised ceremony. Judge Gorsuch squeezed the shoulder of his wife, a gesture that signaled not only his thrill at the nomination but his joy at being able to share it with her. There followed a bitterly partisan process, featuring hearings at which the nominee testified and deflected questions about his substantive views. A change in the Senate rules, ending the possibility of a filibuster, was necessary to bring …

Is Groton The Next Evenwel?, Paul H. Edelman

Michigan Law Review Online

In Evenwel v. Abbott the Supreme Court left open the question of whether states could employ population measures other than total population as a basis for drawing representative districts so as to meet the requirement of "one person, one vote" (OPOV). It was thought that there was little prospect of resolving this question soon as no appropriate instances of such behavior were known. That belief was mistaken. In this Essay I report on the Town of Groton, Connecticut, which uses registered voter data to apportion seats in its Representative Town Meeting and has done so since its incorporation in 1957. …

Sites Of Storytelling: Supreme Court Confirmation Hearings, Patrick Barry

Articles

Supreme Court confirmation hearings have an interesting biographical feature: before nominees even say a word, many words are said about them. This feature— which has been on prominent display in the confirmation hearings of Judge Brett Kavanaugh—is a product of how each senator on the confirmation committee is allowed to make an opening statement. Some of these statements are, as Robert Bork remembers from his own confirmation hearing, “lavish in their praise,” some are “lavish in their denunciations,” and some are “lavish in their equivocations.”1 The result is a disorienting kind of biography by committee, one which produces not one …

Abortion Rights And The Kavanaugh Nomination, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Last week, President Trump nominated federal appeals court judge Brett Kavanaugh to fill the Supreme Court seat opened by the retirement of Justice Anthony Kennedy. Immediately, coverage of the nomination focused on abortion and whether Judge Kavanaugh's confirmation would spell the end of the constitutional right recognized in Roe v. Wade. Let's explore why."

The Federalist Society Majority, Lawrence Baum, Neal Devins

Popular Media

No abstract provided.

Scotus's 2017-2018 Term: More Of The 'Passive Virtues', John M. Greabe

Law Faculty Scholarship

[exerpt] "Examine a timelier topic: the court's decision to effectively punt on the major religious freedom and partisan gerrymandering cases it was poised to decide this term. For the court's restrain in these cases may have some relation to our turbulent political times."

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Michigan Law Review

The most important determinant of a case’s chances for Supreme Court review is a circuit split: If two courts of appeals have decided the same issue differently, review is substantially more likely. But practically every appeal in a patent case makes its way to a single court—the Court of Appeals for the Federal Circuit. How, then, does the Supreme Court decide whether to grant certiorari in a patent case?

The petitions for certiorari in the Court’s patent docket suggest an answer: The Supreme Court looks for splits anyway. These splits, however, are of a different sort. Rather than consider whether …

Wrong Turn On The Ex Post Facto Clause, Paul D. Reingold, Kimberly Thomas

Articles

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post …

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of Perez …

Legal Innocence And Federal Habeas, Leah Litman

Articles

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence-the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Michigan Law Review Online

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in related areas …

Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.

Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the …

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.

Why The Burger Court Mattered, David A. Strauss

Michigan Law Review

A review of Michael J. Graetz and Linda Greenhouse, The Burger Court and the Rise of the Judicial Right.

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

A Unifying Approach To Nexus Under The Dormant Commerce Clause, Adam B. Thimmesch

Michigan Law Review Online

The Supreme Court has long debated the existence and scope of its power to restrict state regulation under the so-called negative or dormant Commerce Clause. The Court took a broad view of that power in the late 1800s, but it has refined and restricted its role over time. One area where the Court has continued to wield considerable power, however, has been in the context of state taxes. Specifically, the Court has continued to restrict states' power to compel out-of-state vendors to collect their sales and use taxes based on a physical-presence "nexus" rule. That rule dates back to the …

The Lottery Docket, Daniel Epps, William Ortman

Michigan Law Review

We propose supplementing the Supreme Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term. The Court’s free hand in agenda setting has obvious benefits, but it has drawbacks as well. It deprives the Court of critical information about how the law operates in ordinary cases. It signals to circuit courts that …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Clerking For God’S Grandfather: Chauncey Belknap’S Year With Justice Oliver Wendell Holmes, Jr., Todd C. Peppers, Ira Brad Matetsky, Elizabeth R. Williams, Jessica Winn

Scholarly Articles

Most of what we know about law clerks comes from the clerks themselves, usually in the form of law review articles memorializing their Justices and their clerkships or in interviews with reporters and legal scholars. In a few instances, however, law clerks have contemporaneously memorialized their experiences in diaries. These materials provide a rare window into the insular world of the Court. While the recollections contained in the diaries are often infused with youthful hero worship for their employer—in contradistinction to Justice Oliver Wendell Holmes, Jr.’s claim that no man is a hero to his valet— they offer a real-time, …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

Change, Creation, And Unpredictability In Statutory Interpretation: Interpretive Canon Use In The Roberts Court's First Decade, Nina A. Mendelson

Michigan Law Review

In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained …

Arguing With Friends, William Baude, Ryan D. Doerfler

Michigan Law Review

Judges sometimes disagree about the best way to resolve a case. But the conventional wisdom is that they should not be too swayed by such disagreement and should do their best to decide the case by their own lights. An emerging critique questions this view, arguing instead for widespread humility. In the face of disagreement, the argument goes, judges should generally concede ambiguity and uncertainty in almost all contested cases.

Both positions are wrong. Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue for a different approach: A judge ought to give significant weight to the …

The First Queer Right, Scott Skinner-Thompson

Michigan Law Review

A review of Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History.

Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi

University of Michigan Journal of Law Reform

Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies.

Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees.

Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized …

Why Guidance From The Supreme Court Is Required In Redefining The Particular Social Group Definition In Refugee Law, Liliya Paraketsova

University of Michigan Journal of Law Reform

One of the most debated topics in refugee law has been the meaning of particular social group (PSG)—one of the five categories used to claim refugee status. In 2006, the Board of Immigration Appeals (BIA) adopted a narrower PSG definition. Since that adoption, a circuit split has persisted over the meaning of PSG. Two circuits in particular have continually refused to adopt this definition—even when the BIA attempted to revise the definition in response to their criticism. This Note proposes a reform that would include a compromise between the two current definitions of PSG by rejecting the BIA’s particularity requirement …

The "Scourge" Of Armed Check Fraud: A Constitutional Framework For Prohibited Possessor Laws, Jeffrey Giancana

University of Michigan Journal of Law Reform

Prohibited possessor statutes have been a part of American law for decades. Put simply, these laws prohibit any person who has been convicted of a felony from possessing a firearm, a prohibition that lasts for the felon’s entire life. The Supreme Court’s modern Second Amendment jurisprudence has held that the right to possess a firearm is a fundamental individual right. In light of this new paradigm, the constitutionality of such broad prohibitions must be called into question—despite the eagerness of courts across the country to dismiss such challenges by pointing to a single line in Heller. This Note challenges the …