Supreme Court of the United States Commons^™

Justice, Interrupted: The Effect Of Gender, Ideology, And Seniority At Supreme Court Oral Arguments, Tonja Jacobi, Dylan Schweers

Faculty Articles

Oral arguments at the U.S. Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the Justices of the highest court. This Article studies how the Justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Solving A Mystery: Justice Brandeis’ Approach To Judicial Decision-Making, Judge Kermit V. Lipez

Touro Law Review

No abstract provided.

Justice Brandeis And Civic Duty In A Pluralistic Society, Joel K. Goldstein

Touro Law Review

No abstract provided.

Soft Supremacy, Corinna Barrett Lain

Law Faculty Publications

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent- soft. And the upshot of soft supremacy is …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Law Faculty Publications

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Judges' Varied Views On Textualism: The Roberts-Alito Schism And The Similar District Judge Divergence That Undercuts The Widely Assumed Textualism-Ideology Correlation, Scott A. Moss

University of Colorado Law Review

No abstract provided.

Bob Nagel And The Emptiness Of Supreme Court Standards Of Review, Larry Alexander

University of Colorado Law Review

No abstract provided.

A Conversation With Associate Justice Sonya Sotomayor, Sonia Sotomayor

University of Colorado Law Review

No abstract provided.

Scotus Denies Review In Gay Rights Case, Arthur S. Leonard

Other Publications

No abstract provided.

Fair For Whom? Why Debt-Collection Lawsuits In St. Louis Violate The Procedural Due Process Rights Of Low-Income Communities, Aimee Constantineau

American University Law Review

No abstract provided.

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Law Faculty Publications

One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases- National Federation of Independent Business v. Sebelius and King v. Burwell- demonstrate both the nature and the limits of his success in that effort.

These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct …

Confirming Supreme Court Justices In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Justice Antonin Scalia’s death prompted United States Senate Majority Leader Mitch McConnell (R-Ky.) and Judiciary Committee Chair Chuck Grassley (R-Iowa) to argue that the President to be inaugurated on January 20, 2017—not Barack Obama—must fill the empty Scalia post. Obama in turn expressed sympathy for the Justice’s family and friends, lauded his consummate public service, and pledged to nominate a replacement “in due time,” contending that eleven months remained in his administration for confirming a worthy successor. Obama admonished that the President had a constitutional duty to nominate a superlative aspirant to the vacancy, which must not have persisted for …

Identity Criris: Claim Prevlusion In Constitutional Challenges To Statutes, Riley T. Keenan

Law Faculty Publications

Claim preclusion bars parties from relitigating in a later action claims that were or should have been litigated in a prior action. How does this doctrine apply in constitutional challenges to state and federal statutes? When a plaintiff challenges one provision of a statute in one action, can she challenge a different provision of the same statute in a later action? And when, if ever, can she bring two successive challenges to the same provision?

Though the Supreme Court addressed these questions two terms ago in Whole Women’s Health v. Hellerstedt, its answers were incomplete. This Article searches for …

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao, Iii

Law Student Publications

The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk' named Madison Nomos' is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case- one with which his Justice vehemently disagrees- should play a significant role in the Court's analysis of an issue that has gripped the nation. Nomos's Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has …

A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily J. Sack

Roger Williams University Law Review

No abstract provided.

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Publications

No abstract provided.

Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips

University of Richmond Law Review

Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …

Dizzying Gillespie: The Exaggerated Death Of The Balancing Approach And The Inescapable Allure Of Flexibility In Appellate Jurisdiction, Bryan Lammon

University of Richmond Law Review

In Part I, I provide necessary background on the current re- gime of federal appellate jurisdiction before turning to the rise and fall of Gillespie and the balancing approach. Part I concludes by explaining how inconsistent Gillespie and the balancing approach are with the Supreme Court's current approach to appellate jurisdiction. Part II turns to five areas in which the balancing approach persists in the courts of appeals and demonstrates the influence of the balancing approach, and the often case-by-case nature of decision-making, in each of these areas. And in Part III, I explore the implications of the balancing approach's …

Meeting The Needs Of Students With Disabilities, Charles J. Russo, Allan G. Osborne Jr.

Educational Leadership Faculty Publications

The Individuals with Disabilities Education Act (IDEA, 2005) requires states, through local school boards, to provide students with disabilities with a free appropriate public education (FAPE) in the least restrictive environment consistent with the content of their Individualized Education Programs (IEPs). As important as it is to educate students with disabilities, the cost of serving these children is much higher than that of their peers in regular education.

Most recently, the Tenth Circuit upheld Rowley’s “some educational benefit” standard in Endrew F. v. Douglas County School District RE-1 (2015). In Endrew F., the panel affirmed that a school board in …

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Works

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

Table Of Contents

Touro Law Review

No abstract provided.

Foreword To The Conference: Louis D. Brandeis: An Interdisciplinary Retrospective, Samuel J. Levine

Touro Law Review

On March 31-April 1, 2016, Touro Law Center and the Jewish Law Institute hosted a national conference: Louis D. Brandeis: An Interdisciplinary Retrospective. More than thirty judges, lawyers, and scholars, across a broad range of disciplines and hailing from across the United States, explored a variety of themes that included, among others: Brandeis’s groundbreaking work as a lawyer and a scholar; his commitment to his Jewish heritage; his historic appointment to the United States Supreme Court; and his jurisprudence on the Court. In addition to the timeless quality of these themes, the timing of the conference was significant, taking place …

Justice Brandeis And Railroad Accidents: Fairness, Uniformity And Consistency, Larry Zacharias

Touro Law Review

No abstract provided.