Category: Supreme Court

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The Senate’s Influence over Supreme Court Appointments

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.

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The Passive Virtues

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.

 

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The Humble Justice Scalia

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.

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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

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.

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Epstein, Landes, & Posner Find SCOTUS Very Pro-Business

Adam Liptak’s story on the Supreme Court offers a nice empirical validation of Jeffrey Rosen’s observation in Supreme Court, Inc.: this is a very pro-business SCOTUS.

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.

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UCLA Law Review Vol. 60, Discourse

Volume 60, Discourse
Discourse

Reflections on Sexual Liberty and Equality: “Through Seneca Falls and Selma and Stonewall” Nan D. Hunter 172
Framing (In)Equality for Same-Sex Couples Douglas NeJaime 184
The Uncertain Relationship Between Open Data and Accountability: A Response to Yu and Robinson’s The New Ambiguity of “Open Government” Tiago Peixoto 200
Self-Congratulation and Scholarship Paul Campos 214
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Can We Lean Anything from Brazil about Remediating the Lingering Consequences of Racial Discrimination?

This post marks the end of my guest appearance on Concurring Opinions, and as usual, I’ve enjoyed my run.

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 More

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Stand-ins for Justice?

The original title for this post was The People’s Supreme Court? because it was triggered by an article in last week’s New York Times about the increased use by law firms of place-holders (paid stand-ins) for seats at the United States Supreme Court.  According to the article, “place holding is common at Congressional hearings and is on the rise at the Supreme Court, where seats for last month’s arguments went for as much as $6,000.”  An earlier piece, published around the time the same-sex marriage cases were argued, noted that the practice has its detractors, including former Congressman Barney Frank, whose proffered remedy is televised Supreme Court arguments.

I changed the title of this post after an incident on Friday.  While returning to my law school midday I passed a scraggly group picketing in front of a neighboring Marriott Hotel.  The signs said that the protesters were picketing because the Carpenters Union had a beef with the management.  As my very general description suggestions, I did not look at the signs too closely.  I was distracted because many of the protests were so drunk or drugged that they could not walk in a circle.  A colleague with whom I was walking informed me that some labor unions now hire homeless people to walk picket lines for them.  Surely the Union did not think that the picketing would be effective.  I was astonished that actual Union members were shirking their membership responsibilities, but did I have a right to be appalled?

Hiring stand-ins for pay is a very American institution.  Read More