Supreme Court Decisions

About: Supreme Court Decisions is a research topic. Over the lifetime, 1804 publications have been published within this topic receiving 17066 citations.

Reply to Fisher's Mathematical Analysis of Supreme Court Decisions.

Abstract: We have had many reminders of the limits and risks of statistical predictions about human behavior. When I ventured last year to offer a formula describing Supreme Court action in the state "right to counsel" cases over a period of years, I was mainly concerned to show that, contrary to accepted judicial doctrine about decisions in unique cases, consistencies in the Court's collective judgments could be demonstrated in this area, and stated in quantitative terms. I did not suppose that the formula was more than a method of approximation. I did not offer it as the perfect formula, or the only one; and in particular I did not claim that it was capable of indefinite extension to other areas of constitutional law. An exploratory effort begins with what is available. But I did take into account, so far as the available data permitted, not only the Court's decisions, but also the votes of individual justices on each of the pivotal factors on which their positions could be identified or imputed. I did not claim more for the product than that, so far, it works. With this general statement, let me turn to Fisher's article. A basic requirement of any valid criticism is an accurate description of its subject. Even a highly analytical and incisive critique becomes irrelevant if it attributes to its subject characteristics which are not actually there. To a large extent, Fisher's analysis of my study must be seen in this light. However, since his attack goes beyond the framework of a mistaken identity, this rebuttal cannot be correspondingly confined. Accordingly, my comments will deal with the following points: (1) Fisher's hyperplane analysis as compared with my approach to the problem; (2) his particular criticisms of the different steps I used in computing the weights of the pivotal factor; and (3) the evaluation of my method in comparison with other possible methods, including "discriminant analysis."

Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court

Abstract: "Merely Judgment" uses affirmative action in government contracting, legislative vetoes, flag burning, hate speech, and school prayer as windows for understanding how Supreme Court decisions send signals regarding the Court's policy preferences to institutions and actors (such as lower courts, legislatures, executive branches, and interest groups), and then traces the responses of these same institutions and actors to Court decisions. The lower courts nearly always abide by Supreme Court precedent, but, to a surprising degree, elected branches and other institutions avoid complying with Supreme Court decisions. To explain the persistence of unconstitutional policies and legislation, Sweet isolates the ability of institutions to derail the litigation process. Merely Judgment explores the mechanisms by which litigants and their peers have escaped from the clutches of litigation and thus effectively ignored, evaded, and trumped the Supreme Court.

Defacing Democracy?: The Changing Nature and Rising Importance of As-Applied Challenges in the Supreme Court's Recent Election Law Decisions

Abstract: This article examines the evolution of the doctrine concerning facial and as-applied challenges to election laws. Recent Supreme Court decisions have indicated a refinement of the doctrine in a direction that makes certain voting rights lawsuits less likely to be brought and more difficult to win. However, the Court's decisions in Crawford v. Marion County, Washington State Grange v. Washington State Republican Party, and FEC v. Wisconsin Right to Life suggest less of a systematic preference for as-applied over facial challenges, than a redefinition of when facial and as-applied challenges are appropriate. Moreover, the debate over the propriety of one or the other type of challenge represents a proxy war of sorts concerning the merits of arguments challenging campaign finance, voter identification, or party regulations. The article ends with an epilogue suggesting the potential implications of this shift for the Court's consideration of the constitutionality of section 5 of the Voting Rights Act.

Takings on the Ground: How the Supreme Court's Takings Jurisprudence Affects Local Land Use Decisions

Abstract: In this Article, we present extensive empirical evidence about the experience California planners have had responding to U.S. Supreme Court takings decisions handed down over the past decade and a half. Based on a survey of all California cities and counties and six in-depth case studies, we reached some surprising and counterintuitive conclusions. Most notably, we found that some types of communities - growth areas with large amounts of developable land - have used the decisions to reassess their policies of imposing exactions for land or fees on developers in exchange for development permission and, as a result, are now levying higher impact fees on developers. We also found that the requirements of Nollan and Dolan seem to have nudged developing communities into more systematic, comprehensive planning through the preparation of reports and studies documenting the rationale for exacting money and land from developers. Perhaps surprisingly, a large majority of California planners view the Supreme Court decisions as establishing "good planning practices." We also found, however, that the Court decisions more negatively constrain the land use practices of highly built out communities with little available vacant land. As a result of the decisions, such communities may lose the ability to exact land or higher fees from developers in order to pay for unfunded infrastructure needs. This distinction between developing communities and older urban areas, if widespread and persistent, may exacerbate pre-existing divisions over traffic woes, substandard school conditions, the provision of affordable housing and other pressing local government concerns.

Litigating EPA Rules: A Fifty-Year Retrospective of Environmental Rulemaking in the Courts

Abstract: Over the last fifty years, the U.S. Environmental Protection Agency (EPA) has found itself repeatedly defending its regulations before federal judges. The agency’s engagement with the federal judiciary has resulted in prominent Supreme Court decisions, such as Chevron v. NRDC and Massachusetts v. EPA, which have left a lasting imprint on federal administrative law. Such prominent litigation has also fostered, for many observers, a longstanding impression of an agency besieged by litigation. In particular, many lawyers and scholars have long believed that unhappy businesses or environmental groups challenge nearly every EPA rule in court. Although some empirical studies have questioned this prevailing belief, no one has yet provided a comprehensive account of litigation challenging EPA rules throughout the agency’s entire history. In this article, we first synthesize the existing disparate empirical studies, each drawn from different time periods, to show how collectively this research creates a picture in stark contrast with prevailing impressions of an EPA besieged by litigation. We also bring new data to bear, providing the first comprehensive empirical effort to track, across the last half-century, both levels of EPA rulemakings and court decisions involving the agency. What we find confirms previous studies in challenging conventional wisdom. EPA has incurred a fairly modest rate of judicial review and invalidation of its rules. Moreover, the variation we do observe over time occurs within a relatively small band, suggesting more continuity than change in litigation patterns over time. The agency appears, from its earliest days, to have quickly achieved a kind of equilibrium in its relationship with the courts. We conclude by suggesting that this outcome would be expected from professional staff efforts within EPA to adapt to changes in the legal environment so as to manage litigation risk and insulate the agency from much judicial scrutiny.