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.

Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure

Abstract: We have criticized the amendments to the Federal Rules of Civil Procedure since the 1980s and the procedural changes made by United States Supreme Court decisions during the same period. These amendments and changes, even if subtle and incremental, launched a new era—the Fourth Era in the grand history of American civil procedure. In this era, tragically, litigation is often perceived as a nuisance, trials are a mistake, and judicial case management is a catholicon. In this Article, we turn our attention to state court procedure. States could follow their federal counterparts; indeed, the pursuit of uniformity can be instinctive. Yet this Article urges states to resist the siren song of uniformity in favor of more noble pursuits. The occasion for this Article is the most recent wave of amendments to the Federal Rules which included (i) the abrogation of Rule 84 and the forms; and (ii) the incorporation of proportionality into the scope of discovery. Although these amendments, like many that preceded them, restrict litigants’ access to court and also to evidence, it is not obvious that these amendments are especially consequential. Such is the nature of incremental reforms that are significant only when viewed cumulatively and retrospectively. But Chief Justice Roberts described the amendments as effecting a “significant change, for both lawyers and judges, in the future conduct of civil trials.” Accordingly, this seems like an appropriate time to consider the extent to which states do and should replicate federal procedure. The article conclusion ends with a question for state court judges. Simply put, what do you want your role as judges to be? The federal judiciary has become a huge bureaucracy (judges represent only a small percentage of the personnel) which has essentially given up on the major role of adjudication. They spend little time in the court room, and, on average, “preside over a civil trial approximately once every three months.” They, and in large measure the lawyers who appear before them, have had little experience with trials or with juries. They dispose of cases on dispositive motions and urge settlement or alternative modes of dispute resolution. The American jury is disappearing, and to have a trial is thought to be a judicial failure. This is not hyperbole. We hope that state judges avoid replicating this, and instead offer alternative models.

Judicial Power and Civil Rights Reconsidered

Abstract: Michael Klarman’s “From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality” is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did. Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court’s willingness and ability to protect minorities. However, he overstates his case. The Court’s views on the proper scope of African Americans’ rights periodically diverged from that of the political branches of government. The Justices’ relative insulation from political pressure; their membership in a different generational cohort than the median voter; the idiosyncrasies of presidential selection of Justices; and the Justices’ nationalist inclinations all help explain this result. Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites; (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole; and (3) when laws lowered the overall costs of maintaining Jim Crow. This Review supports these conclusions by closely examining relevant Supreme Court decisions, especially Progressive Era cases and Brown v. Board of Educa-

The Last Twenty-Five Years of Affirmative Action?

Abstract: In a pair of much-watched cases decided by the Supreme Court in 2003, affirmative action has been vindicated, if not declared alive and well. The decisions, at least for a time, put to rest a controversy that raged over the 1990s. Since the Court in 1978 placed its somewhat obtuse imprimatur on affirmative action in the famous case of Regents of the University of California v. Bakke, race-conscious affirmative action programs had risen and later, at least in some jurisdictions, fell. The latest pair of cases announced a truce of sorts in affirmative action hostilities. In so doing, however, the Court has virtually guaranteed that the debate over affirmative action will rage again in the not-too-distant future. The Court's decisions in the two University of Michigan cases (Gratz v. Bollinger and Grutter v. Bollinger) - one involving undergraduate admissions, the other law school admissions - raise fascinating questions, many of which undoubtedly will be addressed in this symposium. This essay considers one issue. In Grutter, Justice O'Connor, writing for a majority of the Court, bluntly stated the Court's expectation that, although lawfully permissible today, affirmative action programs like the one employed by the elite University of Michigan law school should not be necessary in 25 years. The 25-year time limit announced by Justice O'Connor grabbed immediate attention. At first blush, the Court's pronouncement seemed overly optimistic, if not woefully out of place in a judicial opinion. However, well-settled precedent requires time limits on affirmative action programs. Supreme Court decisions have repeatedly emphasized that affirmative action programs to remedy past discrimination are "temporary" measures and should be eliminated when no longer necessary. Indeed, in certain instances, the Court has expressly required that affirmative action programs have time limits. A limit ensures periodic review of a race-based program and that it is maintained only if needed or, if justified, modified to better achieve its goals. Despite the case law supporting durational limits on affirmative action programs, the 25 years announced by the Court, which came out of the blue in the opinion in Grutter, can be criticized. The instinctive reaction of many affirmative action advocates was that two-and-a-half decades will not be long enough to eliminate the need for affirmative action at elite public universities, most of which currently lack many minority students despite having had affirmative action programs for decades. Racism has existed for centuries in the United States and, although the most blatant forms of racial discrimination have been declared unlawful, its legacy has proven extremely difficult to remedy. Nor does the nation appear on the road to educational equity. A crisis exists in the public elementary and secondary schools, which are racially segregated with a disproportionate number of minority children attending poorly financed schools. No cure-all appears on the horizon, much less one that appears as if it can be implemented in time to benefit this generation of public school students. But there is a more fundamental flaw in the Court's expected 25-year sunset of affirmative action. The Supreme Court accepted the affirmative action plan of the University of Michigan law school as serving the compelling state interest of ensuring a diverse student body, not to remedy past discrimination. Race conscious programs designed to achieve a "critical mass" of minority students, and a diverse student body, would not seem to demand any expiration date, although periodic review might make policy sense in order to ensure scrutiny of the results of affirmative action programs and to evaluate whether the consideration of race remains necessary to ensure a diverse student body. Remedial-based affirmative action, in contrast, would not be necessary after the impacts of an institution's discrimination had been remedied. Put differently, universities could still want to strive for a racially diverse student body even if an institution's past discriminatory history had been fully addressed, or if the institution had never discriminated against racial minorities. Moreover, even if one is sympathetic to the notion of time limits, an objection to the institutional legitimacy of the Court's 25-year pronouncement exists. The Court arguably should not be in the business of establishing the precise limits on the duration of an affirmative action program. Political decision-makers, not the courts, ordinarily establish time limits, which by their nature appear arbitrary, such as limitations periods on claims for relief and sunset provisions in laws. Such periods reflect a wide variety of policy judgments best made by legislatures and policy-makers. The University of Michigan Law School, not the U.S. Supreme Court, arguably should have included a time for periodic review of its affirmative action programs - whether remedial or diversity-driven. Without a time limit to ensure regular review of the program, the argument goes, the Michigan Law School's affirmative action program was not "narrowly tailored" to further a compelling state interest, the test applied to racial classifications used by the state. Along these lines, the argument could be made that the Supreme Court lacked the institutional competence to arbitrarily create the time limit that is the legitimate province of the political branches. In this vein, Justice O'Connor, writing for the majority in Grutter, offered precious little justification or reasoning for the 25-year limit, but simply declared it to be. Some might speculate that this statement, which is technically dicta, was in the opinion as part of a political bargain to build a majority on the Court that would leave intact the University of Michigan law school's affirmative action program. That tends to lessen, not increase, the legitimacy of the Court's pronouncement that affirmative action should end in 25 years. This paper analyzes the Supreme Court's statement in Grutter about the expected end of affirmative action. Part I offers background on Grutter and Gratz, summarizes the decisions, and discusses the debate on the Court over the future of affirmative action. Part II analyzes the efficacy of the 25-year limit announced by Justice O'Connor and the Court's previous emphasis on the "temporary" nature of affirmative action.

State Taxation of Interstate Sales: Enforcement Problems and Prospects

Abstract: In their search for additional revenues, state governments in recent years have turned greater attention to collection of use taxes. Growth in interstate mail order sales has vastly increased the potential yield from use taxes, but Supreme Court decisions have limited the ability of states to effectively collect the tax. States have attempted to overcome enforcement barriers by joining in interstate use tax compliance compacts, and promoting congressional legislation to overcome constitutional prohibitions.

The "Supremes" decide on assisted suicide: What should a doctor do?

Abstract: On June 26, 1997, the US Supreme Court ruled in 2 unanimous decisions that there is no constitutionally protected right to assisted suicide. Overturning 2 1996 Federal Appeals Court rulings that had struck down Washington and New York state laws prohibiting assisted suicide, the Supreme Court rejected 2 key arguments. First, the Supreme Court rejected the argument that the right to liberty guaranteed by the US Constitution includes the right to seek the assistance of a physician to commit suicide. The court has previously assumed that the right to liberty includes decisions to forgo life-sustaining treatment. However, it drew a clear distinction between forgoing life-sustaining treatment, which was consistent with “the common-law rule that forced medication was a battery and the long legal tradition protecting the decision to refuse unwanted medical treatment,” and assisted suicide, which “may be just as personal and profound as the decision to refuse unwanted medical treatment . . . [but] has never enjoyed similar legal protection.” The court found that “[t]he distinction between letting a patient die and making that patient die is important, logical, rational, and well established” and is “widely recognized and endorsed in the medical profession, the state courts, and the overwhelming majority of state legislatures.” Second, the Supreme Court rejected the argument that laws prohibiting assisted suicide violate the right to equal protection of the laws guaranteed by the US Constitution — that states must treat like cases alike. In the rejected argument, decisions to forgo treatment (which are legally permissible) were said to be the same thing as assisted suicide and so should be legally permissible, too. However, the court opined that permitting decisions to forgo treatment (but prohibiting assisted suicide) does not “[treat] anyone differently from anyone else, or [draw] distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted life-saving medical treatment; no one is permitted to assist a suicide.” The Supreme Court’s decisions do not resolve the ethical or legal debate about euthanasia and assisted suicide. Instead, the court has returned these issues to the state legislatures, reflecting the reluctance of the Supreme Court Justices to substitute their views for the democratic will of the people. The court said simply that 2 state laws prohibiting assisted suicide withstood constitutional challenge, not that assisted suicide itself is or should be illegal. Therefore, these Supreme Court decisions would not necessarily prevent a state legislature from legalizing euthanasia or assisted suicide. In November 1997, residents of Oregon will vote for a second time on that state’s controversial Death With Dignity Act, which was passed by a 51%-to-49% margin in a 1994 referendum but never implemented because of legal challenges. (In Canada the criminal law is a federal responsibility.) In 1993 the Supreme Court of Canada also upheld the Criminal Code prohibition against assisted suicide, although by a narrow 5-to-4 margin, in the Sue Rodriguez case. Like the US Supreme Court, the Supreme Court of Canada held that the Canadian Charter of Rights and Freedoms’ guarantee of security of Editorial