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.

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Abstract: We examine whether the level of deference shown by the Israeli Supreme Court to military decisions has changed over time by empirically analyzing the entire body of Supreme Court decisions in petitions against the military commander between 1990 and 2005. Setting forth a number of different factors that might generally affect the degree of deference to state agencies, we hypothesized that there would be a decrease in deference in the relationship between the Court and the military commander during the examined period. Our findings show that deference to the military commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely, the routinization and increase in the number of petitions by the civilian population) and also—to some extent—by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights. lsi_1209 919..956

The Role of State Supreme Courts in Judicial Policy Making: Escobedo, Miranda and the Use of Judicial Impact Analysis:

Abstract: SHE RECOGNITION that we need to look beyond the Supreme Court in order to obtain a realistic understanding of the American judicial system is not new. In the 1950s Jack Peltason' and Walter Murphy2 conceptualized this system in terms of a bureaucratic structure in which the Supreme Court, much like any high level decision-maker, faces a problem of achieving acceptance of and compliance with its decisions by lower level officials under its jurisdiction. While this approach has been utilized in research on the lower federal courts,3 it has not been generally applied to state courts. Rather the work on state courts has been limited to individual courts or comparisons of a small number of state courts without regard for their relationship to the Supreme Court.4 Paralleling this development, there has been a growing concern with the analysis of the impact of Supreme Court decisions, a concern with the effect of these decisions on the institutions and the problems to which they are directed. Despite the large number of impact studies that have been produced to date, however, state supreme courts have been largely ignored.5 This omission is particularly unfortunate in the field of criminal procedure, an area in which the Supreme Court has been attempting to institute fundamental changes at the trial court level. State supreme courts are of vital significance in this area for they interpret Supreme Court decisions and apply them within their own states. In this capacity the state supreme courts serve as a mediating force between the Supreme Court and its decisions at the national level and the trial courts, which are subject to local pressures that often run counter to the decisions of the Supreme Court. If changes in criminal procedure are to be meaningful at

Muddle or Muddle Through? Taking Jurisprudence Meets the Endangered Species Act

Abstract: TABLE OF CONTENTS I. INTRODUCTION A. Two Sides to a Controversy B. Slippery Slopes C. The Thesis of This Article II. INTRUSIVE, COUNTERPRODUCTIVE, AND INEQUITABLE A. A Nation of Zoo-Keepers B. Politics as Usual C. Do Supreme Court Decisions Matter in Environment Policy III. THE POINTLESSNESS OF THEORY A. The Search for a Theoretical Fix B. Is Law Deducible C. A Collision of Views, Not a Conflict of Interests IV. THE END OF THE ECOSYSTEM A. What is Bad for the Marsh Is Bad for Mankind B. Ecology as a Comprehensive View C. The Historization of Nature D. The Problem of Classification E. The Problem of the Baseline F. The redundancy of Species V. LOGOS AND TELOS IN THE NATURAL ENVIRONMENT A. Everything Is Connected to Everything Else B. Ecology as a Normative Science C. The Non-Equilibrium Paradigm D. The Keystone Species E. Does Nature Know Best? F. Theory in Ecology G. Theory Against History H. Everything Can Connect with Everything Else I. Design in Ecology J. The "Rivet-Popping" Analogy VI. THE WARS OF RELIGION A. The Gospel of Efficiency B. Preference Satisfaction as the True and Only Heaven C. Why Protect Species? VII. CONCLUSION "When landowners find an endangered animal on their property, Chuck Cushman says, the best solution under current law is to `shoot, shovel and shut up'."(1) So the Arizona Republic newspaper reported the response of one landowner to the decision of the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon.(2) At issue in Sweet Home was section 9 of the Endangered Species Act (ESA), which makes it a crime to "take" an endangered or threatened species.(3) The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."(4) Interior Department regulations extended the definition of "harm" to include "significant habitat modification or degradation [that] actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering."(5) In Sweet Home, the Supreme Court by a six to three majority upheld this extension of the meaning of "harm" in section 9 of the ESA.(6) Cushman, executive director of the American Land Rights Association, based in Battle Ground, Washington, identified civil disobedience as a rational response to the Court's decision. He explained, "[a] private-property owner is thinking to himself, `I find a spotted owl on my property, I'm going to lose everything I've worked for all my life.'"(7) A property owner may find immediate recourse in shooting and burying the bird before federal agents discover it.(8) A more general political remedy, Cushman observed, must be sought from Congress.(9) "I think you're going to see an eruption in Congress. It's obvious to everyone now that the Endangered Species Act is broke [sic] and it's gotta be fixed."(10) Newspaper editorials condemned the Sweet Home decision as a confiscation of property rights. "The U.S. Supreme Court in a 6-3 decision yesterday trampled property rights in granting federal regulators broad control of private land to protect endangered species," declared the Detroit News.(11) "No worse environmental decision has come from the high court in two decades. The harm can only be undone by Congress, which must overhaul the Endangered Species Act."(12) In a syndicated editorial, James J. Kilpatrick wrote that the small landowners who brought suit in Sweet Home rely on logging for their livelihoods, which is the only economically viable way that they can use their land.(13) "Now comes the government saying that timber may not be cut in forests supporting the owl and the woodpecker--not if the cutting involves significant habitat modification that actually kills or injures wildlife. …

Originalism as Faith

Abstract: This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

Physician-Assisted Suicide — Oregon and Beyond

Abstract: In February, the U.S. Supreme Court agreed to consider the legality of the Bush administration's effort to outlaw physician-assisted suicide in Oregon. With recent events focusing national attention on end-of-life decisions, the Court's acceptance of Oregon v. Gonzales is likely to heat up the public debate on assisted suicide. Dr. Susan Okie reports.