Archive for the ‘Supreme Court’ Category
posted by UCLA Law Review
Volume 61, Issue 1 (August 2013)
|Against Endowment Theory: Experimental Economics and Legal Scholarship||Gregory Klass & Kathryn Zeiler||2|
|Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case||Mark D. Rosen & Christopher W. Schmidt||66|
December 6, 2013 at 6:59 pm Tags: 4th amendment, article iii, broccoli, Constitutional Law, critical race theory, Current Events, endowment effect, endowment theory, Fourth Amendment, health care, portable electronic devices, search, united states v. cotterman Posted in: Civil Rights, Constitutional Law, Economic Analysis of Law, Health Law, Law Rev (UCLA), Legal Theory, Race, Supreme Court Print This Post No Comments
posted by Gerard Magliocca
I realized that I’ve never posted about the fun story of Justice Peter Daniel, who was confirmed to the Court in 1841 under strange circumstances. (It’s was part of my Andrew Jackson research, and now it is part of my research on the Constitution and political parties).
In 1840, the Whigs won a sweeping victory (“Tippecanoe and Tyler Too”) ending twelve years of Democratic control of the White House. They also won control of Congress for the first time. In February 1841, Justice Philip Barbour (a Democrat named to the Court by Jackson) died. President Martin Van Buren decided to act immediately and nominate Daniel (another Democrat) to the Court. He was confirmed shortly before Inauguration Day.
It is hard to imagine something like this being tolerated today. A lame-duck President (just beaten at the polls) choosing a new Justice confirmed by a lame-duck Senate (also repudiated at the polls). Whigs in the Senate boycotted the vote and protested that Van Buren was repeating the precedent of John Adams and his “Midnight Judges.” Since we got Chief Justice John Marshall as part of that bargain, describing the effort as illegitimate does pose problems, but anyway . . .
What did the Whigs do about Justice Daniel after Inauguration Day? They could not impeach and convict him, but they could make his life difficult. So they passed a circuit reorganization bill that gave Daniel circuit riding duties in Arkansas and Mississippi–as far from Washington as possible. Given that he was from Virginia, this assignment was especially burdensome and unusual in the sense that circuit riding was normally tied to where you lived and had practiced. Congress may have hoped that Daniel would resign as a result, but he did not. He stayed on the Court long enough to join the majority in Dred Scott.
posted by Gerard Magliocca
One thought that keeps crossing my mind as I research Justice Sutherland is whether this should be a book about the Four Horsemen. This sort of project would have several advantages. First, we think of these Justices as a group. Second, telling four stories may be better than one–there’s lots of personal detail in four stories that may be lacking otherwise.
What are the conceptual problems? One is that Justice McReynolds was a total jackass. Having to spend 25% of your book talking about a racist anti-semite is not much fun. (Sutherland, by contrast, was a gentle person who was well liked.) Another is that Justice Van Devanter wrote no significant opinions due to his writer’s block. No matter how important he was behind the scenes (and he was very important), that’s hard to illuminate. (I don’t know enough about Justice Butler to say whether he’s a good subject.)
Incidentally, Barry Cushman has a paper on SSRN talking about the law clerks of the Four Horsemen, if you’re interested.
posted by Dave Hoffman
From Daniel McCarthy:
“As a guideline, originalism clearly has merits: it leaves most politics to the political branches, even if it might not succeed in leaving all politics to them; and it may encourage, at least up to the point, a degree of modesty on the part of the judge—relative, that is, to theories that loudly assert the scope that judges actually have in rendering opinions. In some ways, originalism and the broader backlash against the activism of the pre-Rehnquist court may have disguised just how bad the alternatives could be: the Supreme Court has been less adventurous in the last 30 years, and conservatives who remember how adventurous it was earlier in the 20th century may be frustrated that the danger they perceive isn’t felt as strongly by someone like me.
But I remain skeptical. Jurisprudence is an area where I find very little conservative self-examination as searching as that on display in various schools of economics and foreign policy. Indeed, traditionalists and libertarians who reject conservative-movement talking points on economics or foreign policy sometimes sound like just like Rush Limbaugh or Bill Kristol when it comes to the courts. This consensus may exist for a good reason—because it’s formed around a correct doctrine—but it may just mean that the best minds of the right have yet to turn sufficient attention to this area.”
McCarthy doesn’t add the more cynical supposition that criticism of originalism on the right is a sure way off the greased (federalist) career path that the last thirty years has carved out. But the buried argument in this paragraph is worth excavating: the success of the counterrevolution has blinded those who came after to how adventurous – and wrong – the original Warren-court’s premises about judicial and national power and competency turned out to be. A version of this argument is now the CW, at least in some circles. And so I wonder…how many lawyers born after 1970 would actually want to live in a world governed by Earl Warren and his band again? Could it possibly be more than 20%?
posted by Kaimipono D. Wenger
The recent Citizens United decision has spawned a wave of really awful political critique, mostly from progressive writers and activists. A news story from earlier this year highlights one of the wackier critiques, in which a man drove in the carpool lane along with a copy of Articles of Incorporation. When pulled over, he turned it into a media event:
Your honor, according to the vehicle code definition and legal sources, I did have a ‘person’ in my car.But Officer ‘so-and-so’ believes I did NOT have another person in my car. If you rule in his favor, you are saying that corporations are not persons.
The carpool-lane stunt is probably the most over-the-top of responses, but many other critics have weighed in. For instance, the Occupy movement passed a resolution against corporate personhood, while an internet petition to “end corporate personhood” has garnered hundreds of thousands of signatures. Clearly, many people are deeply upset about the idea of corporate personhood.
They’re also, as a general matter, deeply misguided. Read the rest of this post »
posted by Gerard Magliocca
From time to time I’m going to post about Justice Sutherland’s significant opinions, as I conduct research to see if I want to write his biography. My first example is United States v. Bhagat Singh Thind, a 1923 case that presented the issue of whether a Sikh born in India could be naturalized under the prevailing statute, which said that you had to be “white” or of “African descent.” Thind argued that he was a Caucasian (in other words, Aryan) and thus was white pursuant to the statute.
Sutherland began by explaining that the term “caucasian” was unknown in 1790 when the first naturalization statute was written. He also argued that “[i]n 1790 the Adamite theory of creation—which gave a common ancestor to all mankind—was generally accepted, and it is not at all probable that it was intended by the legislators of that day to submit the question of the application of the words ‘white persons’ to the mere test of an indefinitely remote common ancestry, without regard to the extent of the subsequent divergence of the various branches from such common ancestry or from one another.” Sutherland therefore concluded that the stature was intended “to include only the type of man whom they knew as white [in 1790]. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to ‘any alien being a free white person’ it was these immigrants—bone of their bone and flesh of their flesh—and their kind whom they must have had affirmatively in mind.”
He concluded with this lucid (though unfortunate) passage on the state of race relations in the 1920s:
“What we now hold is that the words ‘free white persons’ are words of common speech, to be interpreted in accordance with the understanding of the common man, synonymous with the word ‘Caucasian’ only as that word is popularly understood. As so understood and used, whatever may be the speculations of the ethnologist, it does not include the body of people to whom the appellee belongs. It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage, quickly merge into the mass of our population and lose the distincitive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry. It is very far from our thought to suggest the slightest question of racial superiority or inferiority. What we suggest is merely racial difference, and it is of such character and extent that the great body of our people instinctively recognize it and reject the thought of assimilation.”
This was a unanimous opinion. Congress revised the naturalization statute to include South Asians in 1946, though large-scale immigration on the score did not begin until the 1965 Act ended the national quota system.
posted by Ronald K.L. Collins
McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees. This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976). The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.
Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.
Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny. That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act. Here again, the Court was badly divided.
In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.
* * * * *
The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975:
Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”
“The disclosure provisions are the heart of the whole thing for me. I think these provisions are constitutional and highly desirable.
Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”
Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”
“The expenditure limitations are wholly unconstitutional.”
“I see no First Amendment problems in political committees.”
posted by Gerard Magliocca
I’ve started reading this book, which I’d heard about for years but never picked up. For those of you who don’t know, John Knox was Justice James McReynolds’ law clerk during the 1936-37 Term. I would highly recommend this for many reasons. First, the book is a window into a world that no longer exists. The Supreme Court functioned in a different way (McReynolds worked at home). The social world of Washington DC was also radically different (people still left calling cards). And race relations were troubled (the relationship between the clerk and the African-American staff stands in sharp contrast to the Justice’s treatment of them). Second, Knox provides some excellent anecdotes about his encounters with Brandeis, Cardozo, Van Devanter, and the other Justices. Third, the memoir was written in the midst of the Court-packing fight, and there are great insights about that as well.
Finally, the book is often laugh-out-loud funny. Part of that is because Justice McReynolds had such a bizarre personality. (For example, he took a bath every day and would swish around in the tub and flood the room.) Part of it is because Knox was often clueless (the part where he answers the phone and mistakes the Justice’s girlfriend for another girlfriend is priceless.) And then there’s the fact that the McReynolds’ staff called him “Pussywillow” behind his back. All good fun for law nerds.
The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)
posted by Zvi Triger
In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation. The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation. Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.
How can we distinguish law’s homophobia from law’s heterophilia? To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic. However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic. Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.
Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.
While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System. Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.
August 12, 2013 at 4:06 am Tags: discrimination, homophobia, same sex marriage, sexuality, United States v. Windsor Posted in: Constitutional Law, Culture, Current Events, Family Law, Feminism and Gender, Supreme Court, Uncategorized Print This Post One Comment
posted by Gerard Magliocca
I’m going to explain in some future posts why I’ve decided to research Justice George Sutherland for a biography, but let me start with this story. Sutherland was by all accounts a charming man who loved conversation (not surprising given that he was a successful politician who reached the Senate), and when the Justices got together for their weekly conference, Justice Holmes would often bow when Sutherland entered the room and say “Sutherland, J. Tell me a story.” And he invariably did tell one that left everyone laughing.
posted by Christine Chabot
While in recent decades the Court has become more diverse in some areas, such as gender and race, presidents have also appointed Justices with increasingly uniform educational and professional backgrounds. This lack of professional and educational diversity may be sub-optimal. Adrian Vermeule, for example, offers a carefully-reasoned argument for having at least one Justice with training in another discipline (he suggests appointing a Justice with a PhD in economics). At its most extreme, Vermeule’s argument insists that the professionally-diverse Justice have no training in law, to correct for correlated biases held by lawyer Justices.
My research suggests, however, that the extreme step of eliminating formal legal training will introduce a particular bias which some will find objectionable. In the past, Justices who did not attend law school were significantly more politically predictable than Justices who shared the benefit of formal legal education. Today, of course, a president choosing a Justice who did not attend law school would likely select a person who also has expertise in another field. But it is not clear a Justice with an advanced degree in economics or another discipline would exhibit the same political restraint as a Justice who went to law school. It seems more likely that Justices who attend law school will be either better-equipped or more inclined than others to vote independently of their personal political views. This may be reflected in greater levels of judicial restraint, incremental decision-making, and application of doctrines such as stare decisis.
July 23, 2013 at 11:47 am Tags: diversity, Legal Education, Supreme Court appointments Posted in: Constitutional Law, Courts, Law School, Politics, Supreme Court, Uncategorized Print This Post One Comment
posted by Christine Chabot
Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.
History is rife with examples of Justices who disappointed their appointing presidents. As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.” My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.
My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.
July 10, 2013 at 11:22 am Tags: appointments, presidents, Supreme Court Posted in: Constitutional Law, Courts, Empirical Analysis of Law, Law Rev (Hastings), Politics, Supreme Court, Uncategorized Print This Post 5 Comments
posted by Christine Chabot
Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.
With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.
Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.
Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.
July 3, 2013 at 12:19 pm Tags: appointments, judicial selection, Senate confirmation process, Supreme Court Posted in: Constitutional Law, Courts, Current Events, Empirical Analysis of Law, Law Rev (Hastings), Politics, Supreme Court Print This Post 5 Comments
posted by Gerard Magliocca
One question that I have after last week is why the Court did not dismiss Perry as improvidently granted. I understand that some of the Justices did not want to rule on the merits of Proposition 8 for different strategic reasons, but their method of avoidance was flawed. The holding on standing will eventually return to cause mischief when another state government (or perhaps California under a Republican Governor) decides that it does not want to defend the constitutionality of a referendum or initiative that they do not agree with. Hard cases make bad law indeed.
posted by Gerard Magliocca
I’m amazed that the Court managed to reach a consensus.
UPDATE: A skim of the opinions shows that (aside from Justice Thomas’s concurrence) there’s nothing terribly interesting here. Punt and fair catch.
posted by Dave Hoffman
Justice Scalia isn’t often justly lauded for his humility. Today’s opinion in Molecular Pathology v. Myriad (the gene patenting case) provides an opportunity. His concurrence reads, in its entirety:
“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am un-able to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”
There’s something heart-warming about this short opinion — a bit like Justice Steven’s ode to jalopies and country roads in Scott. It’s also a useful model of rhetorical humility in the face of pretty complex science. Justice Scalia is ordinarily celebrated for his caustic wit & slashing attacks: we should be happy when he takes a different approach.
posted by David Schwartz
While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.
posted by Frank Pasquale
Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.
Published last month in the Minnesota Law Review, [a study by Lee Epstein, William Landes, & Richard Posner] ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.
The ideological shift on the Court is also affecting the academy. If a scholar aims to influence the Court, he or she would be smart to find some new interpretation of an old right that dramatically expands corporate power. To the extent influence on the Court is taken as a bellwether of the quality of one’s legal scholarship, perhaps that ostensibly neutral evaluative mechanism is promoting the political commitments of a durable conservative majority.
posted by UCLA Law Review
Volume 60, Discourse
Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?
posted by Taunya Banks
I sometimes show the 2007 documentary Brazil in Black and White in my Law in Film seminar to give my students some exposure to how other racialized countries handle the difficult business of mediating the lingering consequences of slavery and de jure race discrimination. I also have them read Tanya K. Hernandez, 2005 article To Be Brown in Brazil: Education & Segregation Latin American Style. Her recent book, Racial Subordination in Latin America: The Role of the State, Customary Law and the New Civil Rights Response (Cambridge Univ. Press, Oct. 2012), contains an even more nuanced discussion.
Like the United States, affirmative action in Brazil is a controversial issue. I remember having a deja vu like experience when I visited the country in 2007 and heard some of the discussions. Opponents’ arguments sounded very much like the arguments I had heard in the U.S. years earlier. But there are important differences between the two countries. Notions of race are far more complex and confusing in Brazil as the documentary and a recent article in The Economist explain. Further, unlike the United States public universities in Brazil are more prestigious than private schools. In addition, “Brazil’s racial preferences differ from America’s in that they are narrowly aimed at preventing a tiny elite from scooping a grossly disproportionate share of taxpayer-funded university places. Privately-educated (ie, well-off) blacks do not get a leg-up in university admissions.”
The notion of racial quotas never went over well in the United States, and most observers believe that our current weak form of affirmative action, most apparent in university admissions, is on its last leg. As we anxiously waited this term to see what the Supremes will do with the latest case, Fisher v. University of Texas at Austin, the Court agreed last month to hear another higher education affirmative action case, Schuette v. Coalition to Defend Affirmative Action. The issue in that case is “whether Michigan voters in 2006 had the legal right to bar the state’s public colleges and universities from considering race or ethnicity in admissions.” Briefs in the case can be found on SCOTUSblog. Whatever the outcome in Fisher, it seems clear that the ongoing controversy over affirmative action in higher education will not be resolved this term. Read the rest of this post »