Showing papers on "Supreme Court Decisions published in 2008"

On the Role of Ideological Homogeneity in Generating Consequential Constitutional Decisions

Abstract: Assuming that Supreme Court justices in the majority can transform any constitutional dispute into a ruling with major (or minor) legal implications, what explains their choice? Several possibilities present themselves. But here we focus chiefly on the effect of ideological diversity on the nature of the decision the Justices render, and argue that the more homogeneous the majority, the higher the likelihood of a consequential decision. An analysis of Supreme Court decisions addressing state or federal constitutional matters (1953-2005 terms) lends support to our claim: Regardless of the size of the majority, a strong and positive association exists between ideological homogeneity and the production of a noteworthy decision.

Physicians and Execution

Abstract: This spring the U.S. Supreme Court in Baze v. Rees 1 will rule on the constitutionality of the three-drug regimen currently used for lethal injection in most state executions. The Eighth Amendment to the U.S. Constitution prohibits punishment that is “cruel and unusual.” The central question before the Court in Baze is whether the use of sodium thiopental, pancuronium bromide, and potassium chloride violates that constitutional prohibition. The heinous nature of the crimes committed by Ralph Baze and his coplaintiff, Thomas Bowling, is not in doubt. What the Court will decide is whether the current lethal-injection protocol does or does not . . .

Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court

Abstract: Today's Court has been criticized for eschewing important commercial issues in favor of high-profile questions of constitutional significance. It should hardly be surprising that a Court that devoted its attention to cases involving property rights would maintain a relatively stable body of precedent in comparison to a Court that now focuses more substantially on questions of constitutional law. These and other factors could explain the twentieth-century Court's increasing tendency to overrule its prior decisions, even if the prevailing doctrine of stare decisis had remained relatively constant.Without the baggage of an implication from statistics, the stage is set for an examination of the premise that the Supreme Court's principles of precedent have been significantly loosened in recent decades. This Article examines that heretofore unexplored premise by tracing the primary aspects of the Rehnquist Court's doctrine of stare decisis from founding-era commentary to their origins in decisions of the Supreme Court.After an initial summary of the Rehnquist Court's stare decisis standards in Part II, this Article traces three principal strands of the modern Court's overruling rhetoric from founding-era commentary to their initial applications in decisions of the Supreme Court. For the most part, this Article concludes that the modern muddle over stare decisis has been with us since the founding era. Thus, whereas the Rehnquist Court has often equivocated about its power to overturn precedent based on a current perception of error, Part III first establishes that similar doctrinal tensions trace their origins to early American commentary and to decisions of the Marshall Court. Second, although the Rehnquist Court's notion that stare decisis is most powerful in cases involving vested property rights is sometimes challenged as ahistorical, Part IV identifies founding-era commentary on this issue and traces its application in early Supreme Court decisions. Finally, Part V identifies one strand of the Rehnquist Court's overruling rhetoric that is a product of the twentieth century.

The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965-2007

Abstract: Strange events and ironic conjunctions pervade the narrative of the renewal of provisions of the Voting Rights Act 2005-2006. Never has the radical, still-controversial Act been treated in such hushed, reverential tones, and never has its discussion been so blatantly manipulated for immediate partisan advantage. Never have there been so many proposals for comprehensive changes when the temporary parts of the Act have come up for renewal, and never has there been less serious debate about the Act in committees and on the floor of Congress. Never has support for the Act in Congress and the country seemed so universal, and never has its constitutional future before the Supreme Court seemed so tenuous. This Article shows that the strange, ironic nature of the recent consideration of the Voting Rights Act is not unusual, but rather that it is typical of the history of the most controversial provision of the Act, Section 5, which requires that all changes in election laws in "covered jurisdictions," chiefly in the Deep South, be submitted to the Justice Department or the District of Columbia District Court for "preclearance" before they are allowed to go into effect. In its early years, Section 5 was largely ignored by state and local governments, and the Justice Department was too disorganized to police it, anyway. After receiving a judicial blessing from the Supreme Court, Section 5 was for the first time vigorously enforced by the Nixon Administration, which had opposed its effective continuation, and the Carter Administration, the first administration headed by a president from the Deep South since before the Civil War. Two Supreme Court decisions in 1976 and 1980 that threatened to sap the Act's vigor instead stimulated civil rights activists to mount a campaign for amendments that overwhelmed the Reagan Administration and led to the largest increase in minority elected officials since the first years of the post-Civil War Reconstruction. But no sooner had the promise of the Act finally been fulfilled than the Supreme Court-through strained interpretations of the Act's intentions and, even more ironically, through the use of the Fourteenth and Fifteenth Amendments to hamper, instead of to protect, minority political rights-stripped the Act of much of its power. By 2006, the Act's iconic status insured its persistence, but the fears of its staunchest proponents and the barely hidden antipathy of many members of the dominant political party prevented amendments that might have increased its chances to pass muster with the Roberts Court. Eight days after President George W. Bush signed the law, Gregory Coleman, a Texas lawyer with strong ties to the Republican Party, filed a serious challenge to the constitutionality of Section 5. The strange career continues. Analyzing the complete history of Section 5 and emphasizing the story's ironic elements and shifting course yield lessons that may be useful in the continuing struggle to protect the political rights of minorities. I. The Tangled History of the Voting Rights Act A. Latest Twists On July 20, 2006, only one day after the Senate Judiciary Committee reported a bill reauthorizing key provisions of what conservative columnist George Will called "the 20th century's noblest and most transformative law,"1 the U.S. Senate briefly debated and unanimously passed the Voting Rights Act Reauthorization and Amendments Act (VRARA).2 The apparent impetus for the unusual haste3 by "the world's greatest deliberative body,"4 was the fact that President George W. Bush wished to cite the imminent passage of the Act as evidence of racial progress under his Administration in a speech, arranged at the last minute,5 marking his first appearance as president before a convention of the National Association for the Advancement of Colored People (NAACP).6 But the curtailment of even the appearance of deliberation7 in order to serve the most immediate of political purposes was not the only odd aspect of the 2005-2006 renewal saga. …

Citations of Foreign Decisions in Australian State Supreme Courts Over the Course of the Twentieth Century: An Empirical Analysis

Abstract: Following the United States Supreme Court decisions in Atkins v Virginia, 536 US 304 (2002), Lawrence v Texas, 539 US 558 (2003) and Roper v Simmons, 543 US 551 (2005) there has been much discussion about whether, and to what extent, courts in the United States should, and do, cite foreign law While there has also been some empirical research on this topic for United States courts using citation analysis, there has been little comparative perspective This study offers a comparative perspective by providing a citation analysis of foreign law cited by the six Australian State Supreme Courts at decade intervals over the period 1905 to 2005 The main findings are that over this period there has been a significant fall in the proportion of English cases cited; however, the proportion of citations of foreign precedent from countries other than England has remained consistently low The study examines which specific English courts have been cited and which countries other than England get cited The study also considers which State Supreme Courts cite the most foreign precedent and the areas of the law in which foreign precedent is most often cited The study concludes by briefly considering the implications of citing little foreign precedent for the role of the State courts in the development of the common law in Australia

“An Informal and Limited Alliance”: The President and the Supreme Court

Abstract: Presidential influence transcends some of the barriers imposed by the separation of powers to influence decision making by the Supreme Court. Specifically, we test Robert Scigliano's proposition that an informal and limited alliance exists between the president and the Court. The analysis utilizes Supreme Court decisions on civil rights and civil liberties cases from 1953 to 2000 to assess the effects of the presidency, Congress, judicial policy preferences, and legal factors on the Court. The findings demonstrate that presidential ideology influences Court decisions, while the effects of Congress are more conditional and limited. The results provide support for Scigliano's notion of an informal alliance.

Race, Education, and the Politics of Fear:

Abstract: This article explores the legacies of the 1954 Brown v. Board of Education Supreme Court decision within the historical context of race relations in the United States. The pursuit by African Americans to exercise their rights of citizenship is described as influenced by the changing face of fear. The Supreme Court decisions that determined the status of African Americans provide the framework for the description of the strategies (e.g. litigation, community protest, and electoral politics that were used in the past). The last section looks to the future, assessing the current changes in the social and economic status of African Americans. Can education still make a difference and keep the promise of social justice, equity, and equality—the fundamental values on which the nation was founded—alive? Will new fears emerge even as some progress is made toward a more integrated society?

Preemption and Institutional Choice

Abstract: INTRODUCTION Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law-that is, to "deciding who decides.'" Implicit in this turn is the understanding that public law-including broadly not just constitutional law, but also administrative law and statutory interpretation-consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?"2 The answer traditionally given by American legal academics-the federal courts, and especially the Supreme Court-may or may not be the best choice in any given context. Other possible agents of norm articulation-the constitutional amendment process, Congress, the President, administrative agencies, state governments, world organizations, markets-also need to be considered and evaluated on a comparative basis. The law of preemption is ripe for reconsideration in light of this kind of comparative institutional analysis.3 At least two broad trends support this inference. First, a number of Supreme Court decisions have suggested, at least implicitly, that preemption questions should be redirected from the courts to Congress. In Cipollone v. Liggett Group, Inc.* for example, Justice Stevens's opinion for the Court stated that when Congress has enacted an express preemption clause, this should provide the exclusive basis for decision, rather than any doctrine of implied preemption.5 This proposition, if consistently applied, would promote the view that preemption should be primarily a matter of legislative determination. Other decisions have applied a presumption against preemption unless a "clear and manifest purpose of Congress" to preempt can be discerned.6 This presumption, if consistently applied, would also shift authority for making preemption decisions from the courts to Congress. A second trend suggesting the need for an institutional choice analysis is a growing controversy about whether courts should defer to the views of administrative agencies on the preemptive effect of statutes and regulations.7 The Supreme Court dodged the issue in Waiters v. Wachovia Bank, N.A.8 which presented the question whether a preemptive regulation issued by the Office of the Comptroller of the Currency (OCC) was entitled to Chevron deference by reviewing courts.9 Five Justices, speaking through Justice Ginsburg, concluded that it was unnecessary to reach this question because the statute itself compelled preemption.10 Three dissenting Justices-Justice Stevens joined by Chief Justice Roberts and Justice Scalia-would have decided the question and held that agencies are not entitled to Chevron deference for preemption determinations.11 Controversy has also been stirred by the practice of federal agencies offering advisory opinions about the preemptive effect of federal statutes and regulations.12 Products liability defendants have urged courts to defer to these views. The Supreme Court again recently avoideded determining how much weight courts should give such views as advanced by the Food and Drug Administration (FDA), but has granted review in yet another case which now may require that it revisit the issue in the FDA context.13 Obviously, a general practice of deferring to administrative agencies on questions of preemption would shift authority for resolving preemption controversies away from courts toward agencies. We can perceive in these two developments a broader set of questions about preemption and institutional choice. Although preemption controversies have traditionally been decided by courts in accordance with judge-made preemption doctrine, at least two other institutional actors-Congress and federal administrative agencies-might also be enlisted to make or participate in these decisions. To be sure, no one is suggesting the wholesale displacement of courts in resolving preemption controversies. …

Ethical Implications of Modifying Lethal Injection Protocols

Abstract: Teresa Zimmers and colleagues argue that it is difficult to conceive how lethal injection research activities could be carried out in a fashion consistent with ethical norms.

Gender Justice through Public Interest Litigation: Case Studies from India

Abstract: This Article examines the application of the Supreme Court of India’s enterprising Public Interest Litigation (PIL) mechanism to a subject of compelling global concern: violations of women’s rights. India is currently receiving much international attention for its dynamism and innovation on various fronts, yet the country also remains steeped in centuriesold norms and conventions. This tension is reflected in the decisions of the Supreme Court, which has assumed an active role in enforcing women’s rights through PIL but is sometimes limited in this regard by the complex cultural context in which it operates. Based on an analysis of Indian constitutional law, case studies of landmark Supreme Court decisions, and extensive interviews with stakeholders in India, the Author argues that the PIL vehicle has great potential for advancing gender justice. However, the success of this endeavor in a society that is rapidly evolving—yet still deeply patriarchal— * Portions of this Article are adapted from LITIGATING REPRODUCTIVE RIGHTS: USING PUBLIC INTEREST LITIGATION AND INTERNATIONAL LAW TO PROMOTE GENDER JUSTICE IN INDIA (2006), a report the Author wrote during a Robert L. Bernstein Fellowship in International Human Rights at the Center for Reproductive Rights. The views presented in this Article belong only to the Author, the individuals cited, or both. ∗∗ J.D., Yale Law School (2003); B.A., Princeton University (1999). The Author is currently pursuing a Ph.D. in Social Psychology at Princeton University. She thanks Jayanth Krishnan, Katherine Franke, Elizabeth Brundidge, Anil Kalhan, C. Raj Kumar, Vishnu Vardhan Shankar, Nick Robinson, and Monica Hakimi for their helpful comments on drafts of the Article. The Author is also grateful to the Bernstein Fellowship and the Center for Reproductive Rights, and to all the interviewees in India for generously sharing their time, knowledge, and experiences. Correspondence should be directed to avani@aya.yale.edu. 834 VANDERBILT JOURNAL OF TRANSNATIONAL LAW [Vol. 41:833 will depend upon strategic mobilization by women’s rights advocates and committed efforts by the Court to enforce the rights of women, independent of mainstream opinion and within the boundaries of the separation-of-powers doctrine. If India can assume a leading role in advancing gender justice through its judiciary, its PIL mechanism could serve as an inspiring model for other constitutional courts and international human rights bodies.

Pro Se Competence in the Aftermath of Indiana v. Edwards

Abstract: The right to represent oneself at trial is well-established, but not absolute. Recently, in Indiana v. Edwards, the United States Supreme Court considered whether states may demand a higher standard of competence for criminal defendants seeking to represent themselves at trial than that necessary for standing trial with attorney representation. Ultimately, the Court ruled that the Constitution allows states to employ a higher competency standard for pro se defendants. In this analysis of the Court's decision, the authors describe the facts of this case, the legal precedents framing the issues facing the Court, and the Court's rationale for its opinion. The ruling is considered in light of available research involving pro se defendants and whether this ruling is consistent with professional guidelines related to forensic psychiatric practice. Implications of the decision for forensic clinicians and limitations of the decision are discussed.

LabCorp v. Metabolite Laboratories: The Supreme Court Listens, but Declines to Speak

Abstract: In the United States, a longstanding legal rule exists against patenting natural phenomena. The Supreme Court recently had an opportunity to help define the boundaries and clarify the implications of this "natural phenomenon doctrine" in Laboratory Corporation of America v. Metabolite Labs., dismissed as improvidently granted. This article argues that the natural phenomenon doctrine renders both the patent claim at issue in LabCorp, and the patents that directly or indirectly claim biological correlations between genotypes and medical phenotypes, invalid or unenforceable under U.S. patent law.

Civil Rights Implications of the Allocation of Funds between Bus and Rail

Abstract: This report examines complaints filed under Title VI of the Civil Rights Act of 1964 with the Federal Transit Administration. The report also explores the number of Title VI challenges, the nature of transit agencies' responses to these challenges, U.S. Supreme Court decisions associated with Section 602 disparate impact violations, intentional discrimination claims, immunity, and more. This digest should be useful to transit officials, administrators, attorneys, financial personnel, minority groups, civil rights advocates, and members of communities affected by transit agencies' allocation of resources.

Lincoln and the Court

Abstract: In a meticulously researched and engagingly written narrative, Brian McGinty rescues the story of Abraham Lincoln and the Supreme Court from long and undeserved neglect, recounting the compelling history of the Civil War president's relations with the nation's highest tribunal and the role it played in resolving the agonizing issues raised by the conflict.Lincoln was, more than any other president in the nation's history, a "lawyerly" president, the veteran of thousands of courtroom battles, where victories were won, not by raw strength or superior numbers, but by appeals to reason, citations of precedent, and invocations of justice. He brought his nearly twenty-five years of experience as a practicing lawyer to bear on his presidential duties to nominate Supreme Court justices, preside over a major reorganization of the federal court system, and respond to Supreme Court decisions - some of which gravely threatened the Union cause.The Civil War was, on one level, a struggle between competing visions of constitutional law, represented on the one side by Lincoln's insistence that the United States was a permanent Union of one people united by a "supreme law," and on the other by Jefferson Davis' argument that the United States was a compact of sovereign states whose legal ties could be dissolved at any time and for any reason, subject only to the judgment of the dissolving states that the cause for dissolution was sufficient. Alternately opposed and supported by the justices of the Supreme Court, Lincoln steered the war-torn nation on a sometimes uncertain, but ultimately triumphant, path to victory, saving the Union, freeing the slaves, and preserving the Constitution for future generations.

Criminal Justice Federalism and National Sex Offender Policy

Abstract: “[A]ll crime,” Justice Potter Stewart once observed, “is a national problem.” To the extent this assessment is accurate, it poses special difficulty for a federalist system such as ours, which reposes main police power authority in the states, not the national government, and has traditionally favored a decentralized approach to governance. In recent decades, however, nationalism has largely trumped federalism concerns, as Congress and the President have federalized a broad range of criminal misconduct previously the exclusive province of states. The effort, as students of the field are well aware, has inspired extensive critical commentary and two recent Supreme Court decisions overturning federal laws. The proliferation of federal criminal laws, however, is only part of the federalization story; indeed, in practical terms, only a small part. Because the U.S. can prosecute and punish only a small fraction of the nation’s criminal offenders, recent federalization efforts have had largely symbolic importance. Moreover, while the unfairness to defendants disadvantaged when their cases “go federal” is

The FDA, preemption, and the Supreme Court.

Abstract: Next fall, the Court will hear a case about preemption and FDA-approved drugs. The pharmaceutical industry is arguing that once the FDA approves a drug, the preemption doctrine implicitly deprives injured persons of the opportunity to prove it was inadequately labeled. Leonard Glantz and George Annas discuss the issue.

Doctrine Formulation and Distrust

Abstract: Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal doctrines that both shape a trial court’s initial decision and increase the efficacy of appellate monitoring. After identifying numerous strategies for increasing lower court control, this Article argues that appreciating the links between them helps illuminate recent developments in three areas of public law: the constitutional law of punitive damages; the rules governing “officer suits” brought under 42 U.S.C. § 1983; and the concept of “reasonable” searches and seizures under the Fourth Amendment.

Post-Kelo Reform: Is the Glass Half Full or Half Empty?

Abstract: This paper examines the legislative and judicial response to the controversial Supreme Court decision in Kelo v. City of New London, which sustained the exercise of eminent domain for economic development purposes by private parties. It maintains that Kelo amounted to an expansive reading of the "public use" requirement that moved beyond existing doctrine. The paper finds little prospect for action at the national level to curb economic development takings. Much of the paper is devoted to an analysis of events at the state level. It takes a close look at the outpouring of state legislation and constitutional amendments adopted in reaction to Kelo, concluding that the efficacy of such measures varies widely from jurisdiction to jurisdiction. A common problem is an open-ended exception for "blight" takings. State courts have provided a more promising avenue to limit the free-wheeling exercise of eminent domain. Even before Kelo several state supreme courts barred economic development takings. Moreover, two state supreme courts have expressly rejected the reasoning in Kelo. Others have demonstrated greater skepticism about condemnations for economic development or to combat "blight." To date most post-Kelo reform efforts have not totally shut the door on economic development takings. But Supreme Court decisions sometimes highlight long-ignored issues. One result of Kelo has been heightened public awareness of the need to reign in eminent domain and safeguard the rights of property owners.

A Critical Analysis of the University of Georgia's Response to the United States Supreme Court Decisions in Grutter v. Bollinger and Gratz v. Bollinger

Abstract: A critical analysis of the University of Georgia’s response to the United States Supreme Court decisions in Grutter v. Bollinger (2003) and Gratz et al. v. Bollinger (2003). by Rodney S. Lyn Minority enrollments at selective colleges and universities have historically been low. Affirmative action programs have been a primary driver for increasing enrollments. These programs were called into question in the Grutter and Gratz US Supreme Court cases (2003). The Court’s opinions in these cases provide direction for institutions in setting admissions policy. Using a qualitative methodology, this study examined the University of Georgia’s response to the Grutter and Gratz Supreme Court decisions. The study utilized data from interviews with UGA officials, as well as documentary evidence, to chronologically reconstruct the actions that UGA initiated following the Grutter and Gratz decisions. The study utilized a narrative analytic approach to analyze UGA rationale for its action. It assessed officials’ statements to identify dominant narratives related to the use of race in admissions at UGA. This study positioned the dominant narratives of officials’ relative to competing understandings of admissions, race and the law extracted from the scholarly literature. A metanarrative was developed to highlight commonly held assumptions in the debate around the use of race in higher education admissions. The metanarrative was found to be a useful tool for managing competing perspectives in efforts to develop viable policy approaches for admissions in the future. The study is important in at least two ways: 1) it explains sources of conflict in the affirmative action debate and 2) it suggests the usefulness of narrative policy analysis for policy making related to race, diversity, and admissions in higher education. A CRITICAL ANALYSIS OF THE UNIVERSITY OF GEORGIA’S RESPONSE TO THE US SUPREME COURT DECISIONS IN GRUTTER v. BOLLINGER (2003) and GRATZ et al. v. BOLLINGER (2003) by Rodney S. Lyn

Looking for Law in All the Wrong Places? Foreign Law and Support for the U.S. Supreme Court

Abstract: References to foreign legal judgments in several recent Supreme Court decisions have given rise to substantial legal and political controversy. While those debates have largely focused on normative matters, we utilize an experimental design that presents media portrayals of Court decisions to assess the possible implications of this issue for the Court and its legitimacy with the public. Our results suggest that, should the Court continue to utilize this practice, it could result in some erosion of public support for the Court as an institution. Further, we find that this effect has the potential to be particularly powerful in structuring the opinions of citizens who are less knowledgeable about government and the Court.

Washington v. Glucksberg was tragically wrong.

Abstract: Properly focused, there were two questions before the Supreme Court in Washington v Glucksberg First, in light of all of the other non-textual rights protected by the Supreme Court under the "liberty" of the Due Process Clause, is the right to assisted death a fundamental right? Second, if so, is the prohibition of assisted death necessary to achieve a compelling interest? Presented in this way, it is clear that the Court erred in Washington v Glucksberg The right of a terminally ill person to end his or her life is an essential aspect of autonomy, comparable to aspects of autonomy that the Court has protected in decisions concerning family autonomy, reproductive autonomy, and autonomy to engage in sexual activity Moreover, the government's general interest in protecting life and preventing suicide has far less force when applied to a terminally ill patient The tragedy of Washington v Glucksberg is that every day across the country, terminally ill patients are being forced to suffer longer and being denied an essential aspect of their autonomy and personhood

"The Threes": Re-Imagining Supreme Court Decisionmaking

Abstract: Article III authorizes "one Supreme Court," but it says virtually nothing about the Court's institutional design Consistent with this Constitutional silence, the Court's size, docket, and courtroom practices have changed dramatically For example, the Court has had as many as ten and as few as six members, and for nearly four decades, the Court delegated decisionmaking in the summer to one Justice! In this Essay, the first in a series of essays designed to re-imagine the Supreme Court, we argue that the Court should alter its decisionmaking processes in what might seem to be a radical way but, in fact, is not We argue that the Court, like the United States Courts of Appeals and several foreign high courts, should adopt panel decisionmaking Based on a theoretical and empirical analysis of the costs and benefits of a panel system, we contend that if the Court were to embrace panel decisionmaking, it would be better able to fulfill its Constitutional role as the leader of an ostensibly "coequal" branch of government INTRODUCTION Article III is odd In contrast to Articles I2 and II,3 which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court4 Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances5 For example, the Court's membership has changed substantially6 Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven Only in 1869 did it settle at nine7 Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and then shifting8 The Court's caseload, which is now almost entirely discretionary, was once almost entirely mandatory9 And the Court has altered its courtroom practices in a variety of ways; for instance, the Court once allowed advocates, who rarely submitted briefs, to present oral arguments that lasted for days!10 These examples tell us something important about the past, present, and future of the Supreme Court The current Court may consist of nine members who decide a small number of discretionary appeals en banc, but this was not always so, nor need it be so in the future So, in light of the many important roles the Court plays in our constitutional democracy, how should it conduct its affairs? In this Essay-the first in a series of essays designed to reimagine the Supreme Court-we argue that Congress should authorize the Court to adopt, in whole or part, panel decisionmaking11 We recognize, of course, that this proposal is likely to elicit a visceral reaction If your politics skew left, you might tremble at the thought of Justices Scalia, Kennedy, and Thomas deciding Grutter,12 or Justices White and Rehnquist deciding for a divided panel that a woman does not have the right to choose13 If your politics skew right, you might fear a world in which the "inconvenient truth" is not an Academy Award-winning documentary,14 but rather a decision by Justices Stevens, Souter, and Ginsburg to send Al Gore to the White House15 Whatever counterfactual you find troubling, your visceral reaction probably reflects two presumed costs associated with a move to a panel system: the prospect of different outcomes and the prospect of lower-quality decisions With respect to the prospect of different Court outcomes, we demonstrate empirically in this Essay that the vast majority of cases decided during the late twentieth and early twenty-first centuries-including Grutter, Roe, and Bush v Gore16-would have come out the same way if the Court had decided them in panels rather than as a full Court17 Indeed, if the Supreme Court had implemented threeJustice panels plus an en banc procedure similar to the one used by the United States Courts of Appeals,18 we think you could count on one, two, or maybe a few hands the number of cases that would have come out differently …

Surveys in America's Classrooms: How Much Do Parents Really Know?

Abstract: I. INTRODUCTION One could hardly argue that when parents drop their children off for football practice, day care, or summer camp they are surrendering all of their parental rights to the coach, the babysitter, or the camp counselor. When a parent leaves a child with the babysitter, generally the parent provides instructions as to what the child can and cannot do, eat, watch, and so forth. A parent is temporarily yielding authority over the child to the babysitter while maintaining the ability to give instructions regarding the care of the child. This is the doctrine of in loco parentis.' Schools often confuse this doctrine with that of parens patriae, a doctrine involving the permanent relinquishment of parental authority to the government, often against the parent's wishes.2 In an opinion that resoundingly favored a school board's rights over parental rights, the Ninth Circuit applied the doctrine of parens patriae in the school setting. The effect of the Ninth Circuit's decision in Fields v. Palmdale3 was a virtual relinquishment of a parent's ability to have a voice in what his or her child would be exposed to during the course of the school day, regardless of whether the information was a part of the curriculum. Historically, minor intrusions on a parents' control over their children's education were not an issue because of the greater respect shown by our legal culture towards the rights of parents and families. Today, by contrast, courts have seemingly ignored the rights of parents and families. The courts inappropriately apply the doctrine of parens patriae and invest the schools with the right to dictate how the lives of children should be directed. This article will discuss parental rights within the context of education and how several recent cases have interpreted those rights. Specifically, this article will address the rights of parents to control non-curriculum related material distributed within the public schools. It will examine measures that have been taken in various states and in the United States Congress to strengthen parental rights in the context of non-curriculum related materials such as surveys. Finally, the article will address how a recent Supreme Court case and several federal circuit court cases may have stifled Congress' attempt to strengthen parental rights. In Part II, the article will address the history of parental rights. Parental rights have been recognized for several centuries throughout English common law and stoutly affirmed for almost a century in American case law. Parents clearly have the primary duty to raise their children and care for them. However, the state, in some instances, has a secondary duty to provide services to children that are necessary to their development and health. This section will review several key Supreme Court decisions generally recognized for their discussion of parental rights and will address whether a parent's right to control the education and upbringing of his or her child is fundamental. Part III will provide a detailed explanation of Fields v. Palmdale4 and C.N. v. Ridgewood Board of Education.5 These two cases discuss the administration of surveys to public school students that led to constitutional challenges by several of the students' parents. Part IV will describe measures taken by Congress to protect parental rights and consider whether those attempts have been successful. This section will also explain how the measures taken by Congress to protect parents' rights may have been rendered moot by more recent Supreme Court decisions. Finally, Part V will discuss the implications of the Fields decision and potential ways the parties could have avoided or remedied the situation. This section will also address a variety of legal theories that the parties could have raised at trial and will explain what the Ninth Circuit Court of Appeals and the district court should have done in Fields. Finally, the article will express the significant differences between the Fields and Ridgewood decisions and the resulting implications. …

The U.S. Supreme Court and the Model of Contingent Discretion

Abstract: An inherent tension exists between the legislative and judicial branches - Congress initially passes statutes defining particular areas of the law, but the Supreme Court (as the highest judicial authority) has the opportunity to interpret those statutes. This tension caused by the constitutional invitation to struggle over the meaning of the rule of law has profound implications for democratic theory and the separation of powers. Though scholars have examined whether the Supreme Court issues decisions against the preferences of Congress, there has been little focus on whether legislators can constrain the Court. Our paper fills this scholarly gap by employing a measure of statutory constraint that examines how much discretion Congress provides in the statutes it enacts into law. Our basic argument is that ideological decision making by Supreme Court justices is contingent upon the level of discretion afforded by the law. The greater the level of discretion incorporated into a statute by Congress, the less constraint federal judges (and Supreme Court justices) will encounter when they decide cases; consequently the more likely those judges will be to vote according to their individual ideologies. Conversely, more detailed statutes will reduce the level of discretion afforded to judges, and consequently they will be constrained from voting attitudinally. Using data on Supreme Court decisions from 1953-1996, our analysis provides empirical evidence to support our theoretical conceptualization of judicial behavior. If everything else is held equal, the justices will render decisions according to their ideological preferences. Yet, all things are not equal and the presence of legal factors, such as statutory constraint, limits the ability of some justices to rule ideologically. Our findings demonstrate that the presence of detailed statutory language can also facilitate the expression of ideological voting among other justices.

Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements

Abstract: The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, the Roberts Court granted a petition for certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the case, but petitions for certiorari regularly arise in similar Medicaid enforcement cases. Thus, Gonzaga is likely to be revisited in the context of enforcement of Medicaid statutory entitlements. Medicaid does not contain an enforcement mechanism, but the Supreme Court facilitated enforcement of federal statutory rights against state officers through section 1983. However, this paper highlights recent events that increase the fragility of Medicaid. The first part of this paper explores the structure of Medicaid and key provisions of the Deficit Reduction Act of 2005 that change Medicaid from a program of promised care and benefits into one of no enforceable promises. The second part of this paper discusses Supreme Court decisions that reveal hostility to enforcement of conditions on spending legislation by beneficiaries under section 1983. This part also explores how changes in the Court's composition may allow this view to become the prevailing rule. Additionally, this section demonstrates the narrowing ability of individuals to enforce Medicaid entitlements through section 1983 due to two distinct but related splits in the circuit courts. The final part of this paper analyzes the Court's hostility to enforcing conditions on spending by section 1983 and proposes legislative responses to the impending demise of the Medicaid entitlement.

Text vs. Precedent in Constitutional Law

Abstract: Conservative constitutional law scholarship is divided into two camps. First, there are the originalists and textualists like myself, Randy Barnett, John Harrison, Gary Lawson, Judge Michael McConnell, Michael Stokes Paulsen, Saikrishna Prakash, and, at times, Akhil Amar. This camp believes that the text of the Constitution, as it was originally understood, is controlling in most constitutional cases. Second, there are the followers of Supreme Court precedent, who sometimes argue incorrectly that they are Burkeans. (1) The latter group includes Charles Fried, Thomas Merrill, Ernie Young, and, in some respects, Richard Fallon. These scholars all follow the doctrine over the document and believe in a fairly robust theory of stare decisis in constitutional law. (2) The key case in recent times about which the textualists and the doctrinalists have dashed is Planned Parenthood of Southeastern Pennsylvania v. Casey. (3) The argument in this Essay is that the doctrinalists are wrong in arguing for a strong theory of stare decisis for three reasons. First, there is nothing in the text, history, or original meaning of the Constitution that supports the doctrinalists' strong theory of stare decisis. Second, the actual practice of the U.S. Supreme Court is to not follow precedent, especially in important cases. In other words, precedent itself counsels against following precedent. And, third, a strong theory of stare decisis is a bad idea for policy reasons. Each of these three arguments is taken up in turn below. I. TEXTUALIST AND ORIGINALIST ARGUMENTS Both textualism and originalism supply arguments as to why following precedent is wrong. As for the text, it is striking that there is not a word in the Constitution that says in any way that precedent trumps the text. Article V specifically sets forth a procedure by which the constitutional text can be changed through the amendment process. (4) Amendment is the only process the constitutional text provides for making changes in the document. Five-to-four or even nine-to-zero Supreme Court decisions do not trump the text. Moreover, in the Supremacy Clause, the document says that the Constitution, laws, and treaties shall be the "supreme Law of the Land," (5) but makes no mention of Supreme Court decisions. It is clear that under the text of the Constitution the Supreme Court has no power to follow its own decisions when they conflict with the text. Moreover, the Supremacy Clause makes this Constitution the supreme law of the land, and this Constitution is the one that we know was submitted for ratification under Article VII. The text, then, simply does not support a strong theory of stare decisis. The original history of the Constitution leads to the same conclusion. Records from the Philadelphia Convention and of the ratification debates do not mention anywhere a power of the Supreme Court to follow precedent over constitutional text. (6) Had such a power been contemplated, surely it would have been discussed and debated during the heated and close fight over ratification of the Constitution. Alexander Hamilton does mention in Federalist No. 78 that the courts might sometimes be bound by precedents, but he does not assert a power to follow precedent where it plainly conflicts with the text. (7) At most, Hamilton's comment and a few other early comments like it suggest a power to follow past interpretations of the constitutional text which are plausible and not in contradiction to the text. (8) No one in the Framing generation, not even the most committed Anti-Federalists, imagined a doctrine of stare decisis trumping the constitutional text of the kind the Justices found in Casey. (9) Moreover, early practice under the Constitution shows that the Framers themselves did not follow a strict theory of stare decisis on the most significant constitutional issue of their day--the constitutionality of the Bank of the United States. It is worth rehearsing quickly the history of the debate over the constitutionality of the Bank during the first forty years of the Republic. …

Recent Legal Developments Scott v. Harris: Seeing Is Believing

Abstract: This article provides an assessment of the U.S. Supreme Court's decision in Scott v. Harris (2007). The assessment provides students, criminal justice scholars, and practitioners with an overview o...

Does the Solicitor General Advantage Thwart the Rule of Law in the Administrative State

Abstract: Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some of this bias towards circuit court decisions in defining the rule of law in administrative law practice and scholarship. However, this Comment argues that what Cohen and Spitzer's empirical finding of "government litigant advantage" means more generally for the rule of law in the regulatory context requires further elaboration.