Supreme Court of the United States Commons^™

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu

Faculty Works

A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.

This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Good Faith Discrimination, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The Supreme Court's current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court's racial jurisprudence stem from the Court's willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to remedy the lingering effects of past discrimination.

Petition For Writ Of Certiorari, Kosilek V. O'Brien, Jennifer Levi, Joseph L. Sulman, Abigail K. Hemani, Michele E. Connolly, James P. Devendorf, Jamie A. Santos, Christine Dieter

Faculty Scholarship

Jennifer Levi, on behalf of Gay & Lesbian Advocates & Defenders, was one of the Authors of the Petition for Writ of Certiorari, filed in the Supreme Court of the United States on behalf of the Petitioner, Michelle Kosilek, in Kosilek v. O'Brien. Questions presented to the Court by the Petitioner were 1.) whether appellate courts must parse “ques­tions that present elements both factual and legal” into their factual and legal components, so that all factual findings can be reviewed for clear error, or whether, as the First Circuit ruled, they may review such questions as a whole along …

No Execution If Four Justices Object, Eric M. Freedman

Hofstra Law Review

Under longstanding Supreme Court practice, a certiorari petition is granted if four Justices vote to do so. But such success may be of little value if the petitioner is a capital prisoner whose litigation adversary, the government, has chosen to set an execution date. Five votes are needed to stay an execution. In capital cases under warrant, then, a prisoner may be executed notwithstanding the decision of the Court to review his or her case.

This sometimes-fatal anomaly has for more than 30 years been the subject of frictions among the Justices, critical commentary by the profession, and visible and …

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

Articles

According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

No College, No Prior Clerkship: How Jim Marsh Became Justice Jackson’S Law Clerk, John Q. Barrett

Faculty Publications

(Excerpt)

In his first four years on the Supreme Court, Justice Robert H. Jackson employed, in sequence, three young attorneys as his law clerks. The first, John F. Costelloe, was a Harvard Law School graduate and former Harvard Law Review editor who until summer 1941 was, like then attorney general Jackson, working at the U.S. Department of Justice. Costelloe became Justice Jackson’s first law clerk shortly after his July 1941 appointment to the Court and stayed for a little over two years. Jackson’s next law clerk, Phil C. Neal, came to Jackson in 1943 after graduating from Harvard Law School, …

Frenemies Of The Court: The Many Faces Of Amicus Curiae, Helen A. Anderson

University of Richmond Law Review

No abstract provided.

Implementing Marriage Equality In America, Carl W. Tobias

Law Faculty Publications

In June, the Supreme Court held that state proscriptions on same-sex marriage violate the Fourteenth Amendment. Obergefell v. Hodges declared that same-sex couples possess a fundamental right to marry but left implementation’s daily particulars to federal, state, and local officials. Because formal recognition of marriage equality is a valuable first step but realizing actual marriage equality will necessitate careful implementation of the Justices’ mandate, this effectuation deserves analysis.

Part I principally reviews Obergefell’s rationale for formal marriage equality. Part II assesses implementation of the Court’s mandate. Detecting that a few states and numerous localities have yet to provide comprehensive marriage …

5th Circuit Likely To Strike Down Gay Marriage Bans: An Analysis Of The Hearing, Ari Ezra Waldman

Other Publications

No abstract provided.

Halliburton Ii: A Loser's History, Adam C. Pritchard

Articles

The Supreme Court was presented with an opportunity to bring fundamental reform to securities class actions last term in Halliburton Co. v. Erica P John Fund, Inc.. The Court ducked that opportunity, passing the buck to Congress to undo the mess that the Court had created a quarter century prior in Basic Inc. v. Levinson. Congress's history in dealing with securities class actions suggests that reform is unlikely to come from the legislature anytime soon. The Securities and Exchange Commission appears to be satisfied with the status quo as well. With these institutional actors resisting reform, corporations and …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

Active Avoidance: The Modern Supreme Court And Legal Change, Neal Kumar Katyal, Thomas P. Schmidt

Faculty Scholarship

The Supreme Court in the last few years has resolved some of the most divisive and consequential cases before it by employing the same maneuver: construing statutes to avoid constitutional difficulty. Although the Court generally justifies the avoidance canon as a form of judicial restraint, these recent decisions have used the canon to camouflage acts of judicial aggression in both the statutory and constitutional spheres. In particular, the Court has adopted dubious readings of federal statutes that would have been unthinkable in the canon’s absence. We call this move the “rewriting power.” The canon has also been used to articulate …

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Faculty Scholarship

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding …

God, Civic Virtue, And The American Way: Reconstructing Engel, Corinna Barrett Lain

Law Faculty Publications

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel …

The Law's Clock, Frederic Bloom

Publications

Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type--the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our …