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Articles 1 - 30 of 38
Full-Text Articles in Social and Behavioral Sciences
The Public’S Preferences In Supreme Court Rationale, William Svob
The Public’S Preferences In Supreme Court Rationale, William Svob
Honors Theses
Public approval of the Supreme Court has been decreasing in recent years. Given the literature’s consensus that Supreme Court rulings coincide with popular opinion more often than not, the decrease in popularity cannot be explained away by assuming the justices have made a series of widely despised rulings. This raises questions about what exactly the public wants the Supreme Court to do. There is an abundance of research covering the many factors that influence a justice to rule in a particular manner, but there is little written about what the average American believes should influence the Court. This study is …
Turning Back Time: Implications Of Originalist Legal Theory For Women's Rights, Emma Mays
Turning Back Time: Implications Of Originalist Legal Theory For Women's Rights, Emma Mays
Honors Theses
Since America’s foundation, women’s rights have expanded to lengths that would have been unimaginable to the Founding Fathers including the right to vote, the ability to work outside the home, and some aspects of bodily autonomy. These legal adaptations, along with a larger cultural shift towards liberation, have left many modern-day women with a false sense of security in the face of growing judicial sentiments that threaten the rights of women. The legal theory of originalism that has been growing in force significantly since the 1980s argues that in interpreting constitutional matters, judges should uncover and promote the meaning of …
Free To Hate: Hate Crimes' Intertwinement With The Evolution Of Free Speech In The United States, Lee F. Paulson
Free To Hate: Hate Crimes' Intertwinement With The Evolution Of Free Speech In The United States, Lee F. Paulson
Honors Theses
In response to the growing tension between civil liberties and civil rights, this research investigates the relationship between the relative expansiveness of free speech and a the nationwide propensity for hate crimes. I argue that government’s legal limitations of speech influence the development of linguistic and hierarchical norms in a national culture. Given structural inequality’s association to violence and crimes of intimidation, I hypothesize that as the government expands the legal bounds of free speech, the national propensity for hate crimes decreases. Text analyses of 50 influential freedom of expression rulings in the United States (U.S.) Supreme Court from 1919-2019 …
Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams
Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams
Honors Theses
Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.
The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …
Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag
Oral Argument In The Time Of Covid: The Chief Justice Plays Calvinball, Tonja Jacobi, Timothy R. Johnson, Eve M. Ringsmuth, Matthew Sag
Faculty Articles
In this Article, we empirically assess the Supreme Court’s experiment in hearing telephonic oral arguments. We compare the telephonic hearings to those heard in person by the current Court and examine whether the Justices followed norms of fairness and equality. We show that the telephonic forum changed the dynamics of oral argument in a way that gave the Chief Justice new power, and that Chief Justice Roberts, knowingly or unknowingly, used that new power to benefit his ideological allies. We also show that the Chief interrupted the female Justices disproportionately more than the male Justices and gave the male Justices …
The Consent Of The Governed, Carter A. Hanson
The Consent Of The Governed, Carter A. Hanson
Student Publications
The Consent of the Governed is a Kolbe Fellowship project investigating gerrymandering through the lens of mathematics, Supreme Court litigation, and the potential for redistricting reform. It was produced as a five-episode podcast during the summer of 2020; this paper is the transcription of the podcast script. The project begins with an analysis of the impact of gerrymandering on the composition of the current U.S. House of Representatives. It then investigates the arguments and stories of Supreme Court gerrymandering cases in the past twenty years within their political contexts, with a focus on the Court's reaction to different mathematical methods …
What Does It Take? The Informal Factors That Are Conducive To The Passage Of A Participatory Amendment, Connor Huydic
What Does It Take? The Informal Factors That Are Conducive To The Passage Of A Participatory Amendment, Connor Huydic
Honors Scholar Theses
Hundreds of Constitutional revisions are proposed in our national legislature every year, yet only twenty-seven have been ratified as amendments in the 243-year history of the United States. The Constitution outlines the formal factors required to ratify an amendment, but this paper will focus on the informal factors that are integral to the eventual passage of a participatory amendment. Through case studies of the Nineteenth and Twenty-Sixth Amendments, this thesis examines the factors that contributed to the ratification of these amendments to find similarities in the circumstances that helped propel these bills to eventual adoption as amendments. Non-radical social movements, …
Dimensions Of Delegation, Cary Coglianese
Dimensions Of Delegation, Cary Coglianese
All Faculty Scholarship
How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …
How To Turn Down Political Heat On Supreme Court And Federal Judges: Stop Signing Opinions, Scott S. Boddery
How To Turn Down Political Heat On Supreme Court And Federal Judges: Stop Signing Opinions, Scott S. Boddery
Political Science Faculty Publications
Chief Justice John Roberts rightly — albeit in an uncharacteristically direct manner — defended the integrity of the federal judiciary and its members from a direct affront from the president of the United States. Roberts’s defense sent President Donald Trump atwitter in a series of messages that doubled down on his previous ridicule of an “Obama Judge” from the “total disaster” Ninth Circuit Court of Appeals. [except]
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …
What Senators Should Ask Brett Kavanaugh, Scott S. Boddery
What Senators Should Ask Brett Kavanaugh, Scott S. Boddery
Political Science Faculty Publications
At today’s confirmation hearing of Supreme Court nominee Brett Kavanaugh, senators are attempting to decipher how Kavanaugh will rule on certain issue areas should he be confirmed to the high court. Senators will undoubtedly demand answers to their questions that ask whether Judge Kavanaugh will vote to uphold certain past cases, such as Roe v. Wade or Citizens United, and they’ll want a “simple yes or no” answer. While this line of questioning will primarily originate from the left side of the aisle this time around, this tactic is routinely used by both parties when vetting Supreme Court nominees. …
Kennedy Retirement Plunges Supreme Court Into Politics. Here's How To Turn Down The Heat., Scott S. Boddery
Kennedy Retirement Plunges Supreme Court Into Politics. Here's How To Turn Down The Heat., Scott S. Boddery
Political Science Faculty Publications
Justice Anthony Kennedy’s decision to retire from the Supreme Court could create a sea change in the court’s jurisprudence for years to come. The debate about his successor will once again underscore the fierce partisan politics that surround the court.
It’s worth recalling that the constitutional framers originally envisioned a Supreme Court that was insulated from such politics. In fact, Alexander Hamilton argued quite famously, in Federalist No. 78, that the court must be protected from the electorate in order to serve as a check against the political branches of government without fear of reprisals at the ballot box. [ …
Citizens United V. Federal Election Commission, And The Inherent Unfairness To The “Un-United” American Citizen, Christopher J. Kantor
Citizens United V. Federal Election Commission, And The Inherent Unfairness To The “Un-United” American Citizen, Christopher J. Kantor
Writing Across the Curriculum
Among contemporary United States Supreme Court rulings that have impacted the structure of our nation, the 2010 case Citizens United v. Federal Election Commission resulted in significant political campaign finance reform that gave rise to an election system influenced by money, corporations, and powerful individuals. The ruling of Citizens United allows for the unlimited spending of corporations and labor unions on political expenditures and the limited disclosures of these campaign donors. This overturned precedent established in the 1990 case Austin v. Michigan Chamber of Commerce and the 2003 case McConnell v. Federal Election Commission, the respective rulings of which …
Courts And Executives, Jeffrey L. Yates, Scott S. Boddery
Courts And Executives, Jeffrey L. Yates, Scott S. Boddery
Political Science Faculty Publications
William Howard Taft was both our twenty-seventh president and the tenth Chief Justice of the U.S. Supreme Court -- the only person to have ever held both high positions in our country. He once famously commented that "presidents may come and go, but the Supreme Court goes on forever" (Pringle 1998). His remark reminds us that presidents serve only four-year terms (and are now limited to two of them), but justices of the Supreme court are appointed for life and leave a legacy of precedent-setting cases after departing the High Court. Of course, presidents also leave a legacy of important …
Supreme Court Term In Review: Ot 2016, Donald Roth
Supreme Court Term In Review: Ot 2016, Donald Roth
Faculty Work Comprehensive List
"Even though the Court is expected to be apolitical, there are many who assume that the judges are beholden to party politics."
Posting about recent major cases before the U.S. Supreme Court from In All Things - an online journal for critical reflection on faith, culture, art, and every ordinary-yet-graced square inch of God’s creation.
http://inallthings.org/supreme-court-term-in-review-ot-2016/
Commentary: Will The Courts Make Trump's Presidency Less Imperial?, Allen C. Guelzo, James H. Hulme
Commentary: Will The Courts Make Trump's Presidency Less Imperial?, Allen C. Guelzo, James H. Hulme
Civil War Era Studies Faculty Publications
Nearly three months ago, Donald Trump assumed a presidency that, for more than a century, had grown seemingly endless discretionary powers. And he did so in company with Republican majorities in Congress and in 32 state legislatures -- all of which should have made his decisions unassailable.
Instead, he has been stymied and embarrassed by resistance from a federal judiciary that has twice halted executive orders on the most prominent issue of his presidential campaign. So, will the federal judiciary become the wall against which Trump bleeds away the power not just of his own presidency but of the “imperial …
Tester Sided With 75% Of Montanans On Gorsuch Vote, Evan Barrett
Tester Sided With 75% Of Montanans On Gorsuch Vote, Evan Barrett
Highlands College
A newspaper column by Evan Barrett.
Published newspaper columns written by Evan Barrett on this topic, which vary somewhat in content from this commentary, appeared in the following publications:
Montana Public Radio, April 5, 2017
Montana Standard, April 9, 2017
Helena Independent Record, April 10, 2017
Havre Daily News, April 12, 2017
Counting Down On The Gop Senate’S Days Of Shame, Evan Barrett
Counting Down On The Gop Senate’S Days Of Shame, Evan Barrett
Highlands College
A newspaper column by Evan Barrett.
Published newspaper columns written by Evan Barrett on this topic, which vary somewhat in content from this commentary, appeared in the following publications:
Montana Standard, August 1, 2016
Last Best News, August 4, 2016
What Did The Supreme Court Decide About The Contraception Mandate?, Donald Roth
What Did The Supreme Court Decide About The Contraception Mandate?, Donald Roth
Faculty Work Comprehensive List
"The main thrust of the Court’s opinion, then, is that it believes compromise might be possible."
Posting about a recent Supreme Court decision from In All Things - an online hub committed to the claim that the life, death, and resurrection of Jesus Christ has implications for the entire world.
http://inallthings.org/what-did-the-supreme-court-decide-about-the-contraception-mandate/
Strategic Behavior And Variation In The Supreme Court’S Caseload Over Time, Kenneth W. Moffett, Forrest Maltzman, Karen Miranda, Charles R. Shipan
Strategic Behavior And Variation In The Supreme Court’S Caseload Over Time, Kenneth W. Moffett, Forrest Maltzman, Karen Miranda, Charles R. Shipan
SIUE Faculty Research, Scholarship, and Creative Activity
Over the past sixty years, the size of the Supreme Court’s docket has varied tremendously, growing at some points in time and shrinking at others. What accounts for this variation in the size of the docket? We focus on two key strategic factors – the predictability of outcomes within the Court, and whether justices consider the potential actions of other political institutions – and assess whether these factors help to explain the variation in docket size over time. We discover that uncertainty and institutional constraints prevent the Court from choosing cases with complete freedom, even after accounting for other potential …
Judicial Activism’S Effect On Judicial Elections, Nick Fernandes
Judicial Activism’S Effect On Judicial Elections, Nick Fernandes
Student Scholar Symposium Abstracts and Posters
High profile Supreme Court cases have become increasingly commonplace, particularly with the Citizens United court decision granting unprecedented rights to corporations. Many in the media have decried these as examples of increasing “judicial activism”. This trend has trickled down to the state supreme courts as justices have increasingly played a more active role in developing policy. Gay marriage has become legalized in numerous states due to this trend. While public sentiment is unlikely to affect the appointed Supreme Court, it could have a substantial impact on state judicial elections.
This paper will specifically be looking at judicial elections in Kentucky. …
Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul
Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul
Political Science Honors Projects
The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.
A Functional Theory Of Congressional Standing, Jonathan R. Nash
A Functional Theory Of Congressional Standing, Jonathan R. Nash
Faculty Articles
The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors.
Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote …
Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn
Litigating State Interests: Attorneys General As Amici, Margaret H. Lemos, Kevin M. Quinn
Faculty Articles
An important strain of federalism scholarship locates the primary value of federalism in how it carves up the political landscape, allowing groups that are out of power at the national level to flourish—and, significantly, to govern—in the states. On that account, partisanship, rather than a commitment to state authority as such, motivates state actors to act as checks on federal power. Our study examines partisan motivation in one area where state actors can, and do, advocate on behalf of state power: the Supreme Court. We compiled data on state amicus filings in Supreme Court cases from the 1979–2013 Terms and …
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson
Faculty Articles
The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "
Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …
The Highly Political Supreme Court, Riley Lane Munks
The Highly Political Supreme Court, Riley Lane Munks
Student Scholar Symposium Abstracts and Posters
This paper investigates whether Republicans or Democrats support a strong Supreme Court and why. Furthermore, by analyzing data from the 2012 American National Election Survey, I will study support of the court based on gender, age, and race. Since the early 1980’s the court has taken a strong conservative direction, to the dismay of many liberals. Republicans feel comfortable sending a congressional dispute to the courts while Democrats may feel disenfranchised with the judicial process. I also believe that younger people believe the court is an outdated method of making laws and interpreting the constitution. Originally the Supreme Court was …
America’S Newest Citizen - John Q. Corporation, Evan Barrett
America’S Newest Citizen - John Q. Corporation, Evan Barrett
Highlands College
A Montana Public Radio Commentary by Evan Barrett.
Published newspaper columns written by Evan Barrett on this topic, which vary somewhat in content from this commentary, appeared in the following publications:
Ravali Republic, July 19, 2014
Independent Record, July 16, 2014
Flathead Beacon, July 17, 2014
Baker Center Journal Of Applied Public Policy - Vol. Iv, No.Ii, Theodore Brown Jr., J Lee Annis Jr., Steven V. Roberts, Wendy J. Schiller, Jeffrey Rosen, James Hamilton, Rick Perlstein, David B. Cohen, Charles E. Walcott, Keith Whittington
Baker Center Journal Of Applied Public Policy - Vol. Iv, No.Ii, Theodore Brown Jr., J Lee Annis Jr., Steven V. Roberts, Wendy J. Schiller, Jeffrey Rosen, James Hamilton, Rick Perlstein, David B. Cohen, Charles E. Walcott, Keith Whittington
Baker Center: Publications and Other Works
This special edition includes articles from speakers at a 2010 conference - "Howard H. Baker, Jr: A Life in Public Service" and a special addendum including photographs and cartoons from Sen. Baker's career.
Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee
Open Secret: Why The Supreme Court Has Nothing To Fear From The Internet, Keith J. Bybee
Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University
The United States 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 the internet age of fluid information and openness 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 …
Supreme Court Responsiveness: An Analysis Of Individual Justice Voting Behavior And The Role Of Public Opinion, Michael Browning
Supreme Court Responsiveness: An Analysis Of Individual Justice Voting Behavior And The Role Of Public Opinion, Michael Browning
Honors Projects
This study aims to explain why the Supreme Court responds to public mood by analyzing individual justice liberalism and comparing it to public liberalism between the years of 1953 and 2005. Three theories suggesting why the Court may respond to public opinion are discussed, including the replacement, political adjustment, and the attitude change hypotheses. The argument of using Court reversals to determine the ideology of the Court is presented and implemented. Public reaction to Court decisions is analyzed along with the Court’s institutional legitimacy as means to determine the Court’s strategic behavior. Ideology, public mood, the parties controlling the House, …