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.

Patterns in the politics of drugs and tobacco: The Supreme Court and issue attention by policymakers and the press:

Abstract: Past research has demonstrated lasting effects of important Supreme Court decisions on issue attention in the national media. In this light, the Court has served as an important agenda setter. We significantly expand on these findings by arguing that these salient Court decisions can raise the perceived importance of political issues and induce heightened, short-term policy attention in the broader political system. Using measures of media attention, congressional policy actions, and presidential policy actions, we utilize dynamic vector autoregressive modelling to examine the Court’s impact on issue attention in the macro policy system regarding tobacco and drug policy. Overall, this study suggests that the Supreme Court’s most important decisions might significantly affect broader issue attention in the American political system.

The New(Clear?) Electricity Federalism: Federal Preemption of States’ “Zero Emissions Credit” Programs

Abstract: This Article proposes and applies a “conscious disregard” test for resolving the upcoming appellate litigation that involves the conflict between federal authority over the electric grid and state laws providing subsidies to nuclear power plants in the form of “zero emissions credits” (ZECs). This test draws upon principles of conflict preemption, as elaborated in three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid under the Federal Power Act. It provides that if a state law explicitly aims to directly affect wholesale electricity market prices, terms or conditions, its subsidy program is impermissible as conflicting with the regulatory jurisdiction of the Federal Energy Regulatory Commission (FERC). Applying this “conscious disregard” test, the Article concludes that federal law preempts the state laws and that lower courts’ decisions to the contrary were in error. The Article explains that the Court has ushered in a new era of jurisprudence under the Federal Power Act in which the states and FERC have significant and concurrent responsibilities for regulating the electric grid. It then contends that this dynamic, concurrent federalism environment of policy innovation is an essential backdrop to decision-making in the nuclear subsidies cases, as there is considerable unease about the interaction between state energy policies and the wholesale electricity markets overseen by FERC. Many commentators have called into question how the two can coexist going forward, and as a result, the Article explains how states’ “around-market” policies such as the nuclear subsidies involve overlaps between state and federal laws. The Article’s conscious disregard test for addressing these overlaps brings together three distinct concepts. A state cannot “aim” its subsidy law at the wholesale markets, as the Court held in ONEOK v. Learjet. FERC, not the states, has authority over the terms, conditions, and results on wholesale markets, under FERC v. EPSA’s “directness” standard. Hughes v. Talen Energy Marketing found unlawful state programs that disregard wholesale rates or are closely linked (or “tethered”) to the wholesale markets. The Article contends that the ZEC programs violated this test. Finally, the Article contends that only a test that is based on conscious disregard for wholesale market results can harmonize the three recent Supreme Court decisions, preserve valuable state policy experimentation, and set a narrowly defined preemption standard that avoids unintended consequences in future litigation.

Is the Second Amendment Finally Becoming Recognized as Part of the Constitution? Voices from the Courts

Abstract: Sanford Levinson* As every constitutional lawyer knows, the "working matter" of constitutional law scarcely embraces the entirety even of the notably short United States Constitution. No contemporary lawyers concern themselves with letters of marque and reprisal1 or the quartering of troops in private homes.2 To a significant extent, what counts as "working matter" is a function of Supreme Court decisions. For example, litigation based on the "privileges or immunities" clause of the Fourteenth Amendment3 basically came to an end following the evisceration of that Clause in the aptly named Slaughterhouse Cases.4 For most practicing lawyers, the Second Amendment5 is similarly absent from their professional radar screens, not least because the Supreme Court has basically ignored, at least since its 1939 decision in United States v. Miller,6 the fact that it exists as part of the text of the Constitution that is presumably authoritative for the Court. As I have written elsewhere, "[t]he Supreme Court has almost shamelessly [and shamefully] refused to discuss" the meaning of the Second Amendment.7 Although, no doubt, this judicial silence triggers most dismay among those who view themselves as "pro-gun," the most prominent of which are members of the National Rifle Association (NRA), the dismay should also be felt even by thoughtful proponents of gun control. The NRA, of course, is dismayed by the standard interpretation of Miller, that Congress has plenary power to regulate guns,8 which it views as a profoundly wrong reading of the Constitution (and perhaps of Miller itself) that ought to be corrected as soon as possible. It is, presumably, similarly upset by the fact that the Second Amendment is one of the very few parts of the Bill of Rights that the Court has most definitely not been treated as "incorporated" against the States, even though the last full consideration of the application of the amendment to the States took place in 1875, long before the Court incorporated any part of the Bill of Rights against the States.9 But even proponents of gun regulation ought to recognize that our polity has been poisoned by blithe dismissal by members of the legal elite-or at least that portion represented in most law schools and on the federal judiciary-of arguments made by pro-gun citizens, who might justifiably feel that they are treated as marginalized figures whose arguments are almost literally beneath notice. Not to put too fine a point on it, it is insulting to treat Miller as the "last word" in interpreting a part of the Bill of Rights, given the conceptual revolutions that have occurred relative to almost all other parts of the Bill of Rights since 1939.10 I dare say that no other 1939 case (or, even more certainly, no other case written by the egregious Justice McReynolds), is relied on so often by political liberals as providing a definitive statement about an important constitutional norm. The point of my own Essay, The Embarrassing Second Amendment, as I have tried on occasion to explain to journalists who want me to take a strong substantive position, is that this wooden reliance on Miller, coupled with a refusal to confront seriously the arguments made by such thoughtful opponents of federal regulation of guns as Senator Orrin Hatch, is fundamentally disrespectful.11 Part of what "due process" involves is a genuine dialogue with the citizenry, by which courts evidence a willingness to listen to, even if they do not necessarily agree with, arguments about issues that go to the heart of our constitutional polity. One should not be naive enough to believe that the Court would really be able to settle the issue of guns in American society were it to take a case and render a decision, any more than it has stilled the debate about abortion, affirmative action, or any other major issue that divides our polity. But at least with full ventilation of the various arguments, the losers might feel that they were finally being taken seriously. …

Rennie v. Klein.

Abstract: KIE: Re-examining its earlier decision in this case in light of the U.S. Supreme Court's opinion in Youngberg v. Romeo, the appeals court re-affirmed that mentally ill patients who have been involuntarily committed to a state psychiatric institution possess the constitutional right to refuse administration of antipsychotic drugs. Such medication can be used forcibly only when professional judgment has been exercised. New Jersey regulations which provide, e.g., for a meeting between the physician and patient regarding the use of medication, do satisfy the professional judgment standard and the constitutional due process requirement.