Court Appointments Research Articles

The ‘good chap’ and a ‘new type of judge’: the UK constitution under stress

This paper argues that the broader legal and extra-legal environment matter to understand the set of beliefs and attitudes which condition judicial activity and therefore influence the design of judicial appointments. Attitudes to the separation of powers are discussed and illustrated by the consideration of, in turn: the history of appointments to the higher courts, the recent accompanying changes to the role of the Lord Chancellor, the changing perception of the judiciary in the media and political circles, the present constitutional role played by the Supreme Court and the vulnerability of judges to politically motivated attacks. In the UK, the consideration of such factors points towards rejection of greater involvement of the Lord Chancellor in the UK Supreme Court appointments, at least for now or until a sense of basic constitutional propriety prevails among all political institutions.

Studying topic engagement and synergy among candidates for 2020 US Elections.

This article provides a comprehensive summary of how candidates running in the 2020 US Presidential Elections used Twitter to communicate with the public. More specifically, it aims to uncover elements linked to public engagement and internal cooperation (in terms of content and stance similarity among the candidates from the same political front, and with respect to the official Twitter accounts of their political parties). Our main subjects are the Presidential and Vice-Presidential candidates who contested for the 2020 US Elections from the two major political fronts—Republicans and Democrats. Their tweets were evaluated for social reach, content similarity and stance similarity on 22 topics. According to the findings, Joe Biden had the highest engagement and impact (user impact: 177.08k, normalized to 0.99), followed by Donald Trump (user impact: 164.19k, normalized to 0.92). The Democrats depicted a clearer understanding of their audience, portraying an essential link between public participation, internal cooperation and the electoral campaign. The results also demonstrate that specific topics (like US Elections, and Inauguration Ceremony) were more engaging than others (Trump Healthcare Plan, and The Supreme Court Appointments). This study adds to the existing work on using social media platforms for electoral campaigns and can be effectively utilized by contesting candidates.

Judging Biden

It would have been easy for President Joe Biden to approach judicial appointments (and, particularly, circuit court appointments) the same way as the Administration he served as Vice President. Like President Obama, President Biden inherited a country in turmoil. A deadly pandemic had killed nearly 400,000 Americans. Necessary quarantine orders shuttered schools and businesses, and ground the economy to a halt. Partisan tensions were still raging, culminating in the violent storming of the Capitol by right-wing insurrectionists. People needed the vaccine, economic relief, and a return to some semblance of normalcy. Also, like President Obama (and thanks to President Trump), President Biden inherited relatively few judicial vacancies—only forty-six, the fewest since President George H.W. Bush inherited thirty-seven in 1989. So, like President Obama, you could understand if President Biden felt the need to focus his efforts elsewhere. But after watching President Trump appoint young, deeply conservative appellate judges and justices for four years, the Biden Administration realized it could not repeat the same well-meaning mistakes Democratic administrations had been making for decades. Instead, it has recognized that—at least for the time being—it has an opportunity to make an impact on the federal judiciary and seems poised to do what it can to maximize it.

An American Notwithstanding Clause? Between Potestas and Potentia

Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts.

Estimating the Need for Additional Bankruptcy Judges in Light of the COVID-19 Pandemic

This Essay (the “Essay”) estimates the U.S. bankruptcy system’s ability to absorb an anticipated surge of financial distress among American consumers, businesses, and municipalities as a result of COVID-19.An increase in the unemployment rate has historically been a leading indicator of the volume of bankruptcy filings that occur months later. If prior trends repeat this time, the May 2020 unemployment rate of 13.3 percent will lead to a substantial increase in all types of bankruptcy filings. Mitigation, governmental assistance, the unique features of the COVID-19 pandemic, and judicial triage should reduce the potential volume of bankruptcies to some extent, or make it less difficult to handle, and it is plausible that the predictive power of the recent unemployment spike will be smaller than history would otherwise predict. We hope this will be so. Yet, even assuming that the worst-case scenario could be averted, our analysis suggests substantial, temporary investments in the bankruptcy system may be needed.Our model assumes that Congress would like to have enough bankruptcy judges to maintain the average bankruptcy judge’s caseload at no more than it was during the last bankruptcy peak in 2010, when the bankruptcy system was pressured and the public caseload figures indicate that judges worked 50 hour weeks on average.To keep the judiciary’s workload at 2010 levels, we project that, in the worst-case scenario, the bankruptcy system could need as many as 246 temporary judges—a very large number. But even in our most optimistic model, the bankruptcy system will still need 50 additional temporary bankruptcy judgeships, as well as the continuation of all current temporary judgeships.The optimistic model begins with the observation that an unusually large number of the unemployed believe that they are only temporarily furloughed and will be back at work soon. Accordingly, we (optimistically) removed the excess-from-baseline number of unemployed who believe they will be back at work shortly—as if they will be back at work shortly with no adverse impact on the economy’s channel to bankruptcies. That reduction yielded a projected need of between 50 and 69 fewer judges to maintain a judicial workload no greater than the one bankruptcy courts faced in the 2009 financial crisis.In other circumstances, the enormous uncertainty of what the bankruptcy caseload will be would warrant waiting to see what develops. And strong action probably will not occur until we see a major across-the-board rise in filings. (Large business filings are rising sharply now, but consumer filings are not rising.) The downside of a wait-and-see strategy is that full-scale bankruptcy court appointments need about a year to complete. The dilemma in what action to take now is that if bankruptcies do in fact rise by several-fold---a plausible but uncertain prospect, then waiting for the rise will lead to a large gap that will put the system one year behind where it ought to be if the filings had been anticipated as certain and acted upon. Hence, we recommend that the relevant players act on the optimistic estimation and re-assess bankruptcy needs as the economy evolves and more information develops.Judicial appointments need not be for the full term of a bankruptcy judge. Capacity can be added via temporary judges (of which there already are some in the bankruptcy court system) and by recalling recent retirees who are willing to serve.

Effects of Probation Stipulations on Perceptions of Employability Among People on Probation in Rhode Island

Roughly one-third of the people under the purview of the Rhode Island Department of Corrections are on active probation. People on probation are typically mandated to a variety of stipulations, such as meetings with their probation officer, court appointments, drug and/or mental health counseling, and crime-specific stipulations, such as anger management groups. Evidence suggesting that mandating these stipulations reduces a person’s likelihood to be rearrested is minimal. In contrast, there is a wealth of evidence suggesting that stable employment decreases recidivism. A person’s perceptions of their employability have been demonstrated as a key component to both pursuing and maintaining employment opportunities. Drawing on Labeling Theory, this study surveyed 170 persons on active probation to explore the correlation between probation stipulations and employability perceptions. Results suggest there is a negative association between stipulations and perceptions of employability. Social work practitioners working with people on probation or people who are incarcerated should work to increase their clients’ perceptions of employability.

Unrepresented Adults Face Adverse Healthcare Consequences: The Role of Guardians, Public Guardianship Reform, and Alternative Policy Solutions

ABSTRACT Persons without family or friends to serve as healthcare agents may become “unrepresented” in healthcare, with no one to serve as healthcare agents when decisional support is needed. Surveys of clinicians (N = 81) and attorneys/guardians (N = 23) in Massachusetts reveal that unrepresented adults experience prolonged hospital stays (66%), delays in receiving palliative care (52%), delays in treatment (49%), and other negative consequences. Clinicians say guardianship is most helpful in resolving issues related to care transitions, medical treatment, quality of life, housing, finances, and safety. However, experiences with guardianship are varied, with delays often/always in court appointments (43%) and actions after appointments (24%). Policy solutions include legal reform, education, and alternate models.

The Legacy of Trump’s Judicial Appointments

It is too early to know if the judicial appointments of President Donald J. Trump will be an enduring legacy of his presidency because the Biden-Harris administration may have several opportunities to roll back his achievements. Still, Trump’s election in 2016 stymied the Left’s hope of a progressive Supreme Court. Trump has remodeled the Supreme Court into an originalist court. His Supreme Court appointments – Gorsuch, Kavanaugh, and Barrett – have defended religious liberty claims repeatedly. Thus, if the Democrats are not able to pack the Court, Trump’s one-term presidency may have produced the most important cohort of judges in a generation.

Good for the Goose but Not for the Gander: Applying Title VII Principles to Supreme Court Appointments

During the 2020 Democratic primaries, Joe Biden pledged to nominate a black woman to the Supreme Court. This was likely a wise strategic move, as the pledge prompted the loudest cheers of the night at the Democratic debate where it was announced. Regardless of the practicality of Biden’s pledge, refusing to consider people for a job based solely on their race and gender typically implicates Title VII employment discrimination protections. However, Title VII protections do not apply to Supreme Court Justices due to their classification in the excepted service and not the competitive service. This Article looks beyond that fatal determination to analyze what the result of Title VII principles would be if applicable. Topics considered include the historical context of Supreme Court nominations, worker classification, employment agency liability, standing, gender as a BFOQ, case law establishing an expansive interpretation of Title VII protections, and unintended consequences of Biden’s position. This analysis provides valuable insight into the purpose of Title VII protections and the significance of discrimination in high-profile government positions.

Reform Through Resignation: Why Chief Justice Roberts Should Resign (in 2023)

On September 29, 2023, Chief Justice Roberts will have served exactly eighteen years on the Supreme Court. He should mark this occasion by doing something extraordinary: resigning. By doing so, the Chief Justice could create a new norm whereby Supreme Court Justices agree to serve staggered eighteen-year terms on the Court. The resulting de facto term limit would rectify the structural problems caused by life tenure and would strengthen an institution facing an unprecedented legitimacy crisis in the wake of three exceptionally controversial Supreme Court appointments by President Trump. This paper contains three parts. In Part I, I provide an overview of the institutional problems associated with life tenure, including the randomness of Supreme Court vacancies, the increased length of time the Justices spend on the bench, and the politicization of the Court. Part II introduces the system of eighteen-year staggered term-limits that is supported by a wide range of scholars and other Court observers. I then respond to several criticisms of this term-limit reform, ultimately agreeing with the critique that implementing term limits via constitutional amendment is highly unlikely and implementing them via statute is likely unconstitutional. This conclusion leads me, in Part III, to argue that the most plausible way to establish Supreme Court term limits is through changed norms. Much as George Washington’s decision to not seek a third term as President led to a de facto Presidential term limit, I contend that Chief Justice Roberts is uniquely positioned to establish a new norm of serving eighteen-year terms on the Court. I then detail how Chief Justice Roberts’ well-timed resignation could lead to this de facto term limit system.

Unseen Costs: The Direct and Indirect Impact of U.S. Immigration Policies on Child and Adolescent Health and Well-Being.

Shifts in migration and border control policies may increase the likelihood of trauma exposure related to child–parent separation and result in costs to the health system and society. In the present study, we estimated direct and indirect costs per child as well as overall cohort costs of border control policies on migrant children and adolescents who were separated from their parents, detained, and placed in the custody of the United States following the implementation of the 2018 Zero Tolerance Policy. Economic modeling techniques, including a Markov process and Monte Carlo simulation, based on data from the National Child Traumatic Stress Network's Core Data Set (N = 458 migrant youth) and published studies were used to estimate economic costs associated with three immigration policies: No Detention, Family Detention, and Zero Tolerance. Clinical evaluation data on mental health symptoms and disorders were used to estimate the initial health state and risks associated with additional trauma exposure for each scenario. The total direct and indirect costs per child were conservatively estimated at $33,008, $33,790, and $34,544 after 5 years for No Detention, Family Detention, and Zero Tolerance, respectively. From a health system perspective, annual estimated spending increases ranged from $1.5 million to $14.9 million for Family Detention and $2.8 million to $29.3 million for Zero Tolerance compared to baseline spending under the No Detention scenario. Border control policies that increase the likelihood of child and adolescent trauma exposure are not only morally troubling but may also create additional economic concerns in the form of direct health care costs and indirect societal costs.

Barriers to High Court appointments in Northern Ireland

This article reports on research carried out on why the Northern Ireland Judicial Appointments Commission is finding it difficult to attract applicants of the appropriate quality for vacant High Court appointments. It makes recommendations for how the appointments system might be changed.

Supreme Court Appointments in Presidential Election Years: The Case of John Hessin Clarke

Supreme Court Appointments in Presidential Election YearsThe Case of John Hessin Clarke Jonathan L. Entin (bio) When Supreme Court Justice Antonin Scalia died unexpectedly on February 13, 2016, Republicans in the US Senate immediately made clear that they would not consider any nominee proposed by President Barack Obama. Because 2016 was a presidential election year, Majority Leader Mitch McConnell declared within hours of Scalia’s passing: “The American people should have a voice in the selection of their next Supreme Court justice.”1 True to their word, the GOP-controlled Senate refused to take any action on Obama’s nomination of Chief Judge Merrick B. Garland of the US Court of Appeals for the District of Columbia Circuit as Justice Scalia’s successor. This inaction provoked widespread debate, but the vacancy remained open for President Donald J. Trump to appoint Judge Neil M. Gorsuch, of the US Court of Appeals for the Tenth Circuit, to Scalia’s seat.2 The refusal to act on Judge Garland’s nomination marked the first time in 150 years that the Senate had completely stonewalled a Supreme Court [End Page 30] nominee.3 But this does not mean that the confirmation process used to be genteel or straightforward. Since World War II, the only two Supreme Court appointments that had occurred during a presidential election cycle illustrated the fraught nature of such matters. In October 1956, shortly after the opening of the Court’s new term, President Dwight D. Eisenhower nominated New Jersey Supreme Court Justice William J. Brennan Jr. to succeed Justice Sherman Minton, who had retired for health reasons. Eisenhower chose Brennan in an effort to appeal to Catholic voters who traditionally supported Democrats.4 The president acted quickly to put Brennan on the Court, giving him a recess appointment that meant that he was able to hear cases before the Senate got a chance to vote on his confirmation. This posed two potential problems. First, because the recess appointment came before the election, Brennan might not have received a permanent appointment had Eisenhower lost.5 Second, even if Eisenhower won (as he of course did), the recess appointment could undermine Brennan’s independence on the bench because the Senate might retaliate against him for controversial decisions, or, more subtly, Brennan might at least subconsciously decide cases with that possibility in mind.6 In June 1968, Chief Justice Earl Warren announced his retirement. The timing of the announcement was seen as a thinly veiled attempt to prevent the presumptive Republican presidential nominee, Richard M. Nixon, from [End Page 31] appointing his successor. Warren and Nixon disliked each other from their days in Republican politics in their home state of California, and Nixon had strongly criticized the Warren Court’s liberal rulings on criminal law and procedure.7 President Lyndon B. Johnson, who was not seeking reelection, nominated Justice Abe Fortas as the new chief justice, but Republicans and southern Democrats in the Senate filibustered the nomination, and Fortas eventually withdrew.8 Despite the small number of postwar Supreme Court appointments in presidential election years, the prospect of such appointments fueled interbranch tensions. The Brennan appointment played a significant role in the Senate’s adoption of a resolution opposing recess appointments except in “unusual circumstances” to avoid “a demonstrable breakdown in the administration of the Court’s business.”9 Although the resolution expressed only the sense of the Senate, the timing of this move was hardly coincidental: the vote occurred on August 29, 1960, just two days before Congress adjourned to concentrate on the general election, so it served as at least a symbolic warning against any last-minute recess appointments.10 Similarly, as Republicans often pointed out during the Garland stalemate, Vice President Joseph R. Biden, while chairing the Senate Judiciary Committee, had advised President George H. W. Bush not to try to push through a nominee while he was running for reelection in 1992.11 This warning also seemed like no idle threat, coming only a few years after the controversy over the failed nomination of Judge Robert H. Bork and the tumultuous confirmation process for Justice Clarence Thomas. It was not always thus. In 1932, a politically vulnerable President...

The Chief Justiceship of William Howard Taft, 1921–1930 by Jonathan Lurie

Reviewed by: The Chief Justiceship of William Howard Taft, 1921–1930 by Jonathan Lurie John Thomas McGuire The Chief Justiceship of William Howard Taft, 1921–1930. By Jonathan Lurie. Chief Justiceships of the United States Supreme Court. (Columbia: University of South Carolina Press, 2019. Pp. xiv, 255. $49.99, ISBN 978-1-61117-987-3.) It is easy to remember the legal groundbreakers who served as chief justice of the United States Supreme Court, such as John Marshall and Earl Warren. More difficult is considering chief justices who made substantial, if not Newtonian-like, contributions to U.S. legal history. In 1970 constitutional scholars and legal historians ranked William Howard Taft, holder of the office from 1921 through 1930, as “near great,” according to Henry J. Abraham (Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II [Lanham, Md., [End Page 510] 2008], p. 374). Even so, scholars still tend to see Taft more as the reluctant United States president, not as the surprisingly crafty chief justice. This new book by Jonathan Lurie demonstrates why Taft deserves his judicial reputation, and it strikes an admirable balance between an individual assessment and an explanation of historical context. The two major strengths of The Chief Justiceship of William Howard Taft, 1921–1930 lie in its persuasive demonstration of both Taft’s political shrewdness and his collegial stewardship of his eight fellow justices. Taft not only lobbied his fellow Ohioan and recently elected president Warren G. Harding to appoint him chief justice in 1921, but Taft also influenced Harding’s subsequent Supreme Court appointments, particularly that of Taft’s old friend (and the more legally influential justice) George A. Sutherland. In addition, Lurie shows how Taft crafted a successful strategy for the passage of the Judiciary Act of 1925, or Judges’ Bill, which granted the nation’s highest court its right to determine cases by writ of certiorari. While the bill presented no controversy, Taft carefully relied on a coalition of justices to testify before Congress how the new method could preserve principles of efficiency and equity. Moreover, despite his increasing ill health after the mid-1920s, Taft still played a considerable part in garnering federal appropriations for the current Supreme Court building. Lurie also demonstrates how Taft preserved substantial majorities for Supreme Court decisions through a mixture of outward affability and well-placed pressures. The chief justice tolerated Oliver Wendell Holmes Jr.’s penchant for dissent, in return for his colleague’s eagerness to write majority opinions, and Louis Brandeis’s legally scrupulous, if sometimes lengthily written, objections. Taft’s successful relationship with Brandeis becomes more remarkable when one considers Taft’s vociferous opposition to Brandeis’s confirmation in 1916. Taft even maintained civility with the notoriously disagreeable and inept James C. McReynolds. As Lurie shows, Taft’s great administrative successes as chief justice lay partially in his pleasure in serving as a federal judge and partially in a diverse career of legal administrative expertise, including service as the solicitor general of the United States and on a federal appellate court. Despite the overall positive assessment of Taft’s chief justiceship, Lurie also shows how Taft adopted a King Lear–like persona in his later years on the Court, as he sensed future difficulties with his beloved conservative legal classicism. Taft privately denounced Holmes, Brandeis, and new colleague Harlan Fiske Stone in 1929 as “‘Bolsheviki,’” a sad reminder of how personal difficulties can trump professional considerations (p. 208). This reviewer must note two caveats. Epigrammatic Holmes certainly was, but the constant use of the word becomes a bit wearying. Additionally, while the explanations of the Taft Court’s jurisprudential breakthroughs are enlightening, one sometimes feels lost in the sea of details. Still, The Chief Justiceship of William Howard Taft is an exemplary effort that demonstrates how Taft made his mark as an excellent, if not great, chief justice of the United States. [End Page 511] John Thomas McGuire Siena College Copyright © 2020 The Southern Historical Association

Barriers to High Court Appointments in Northern Ireland

This article reports on research carried out on why the Northern Ireland Judicial Appointments Commission is finding it difficult to attract applicants of the appropriate quality for vacant High Court appointments. It makes recommendations for how the appointments system might be changed.

Instrumentalists and Renaissance Culture, 1420–1600: Players of Function and Fantasy by Victor Coelho and Keith Polk

Reviewed by: Instrumentalists and Renaissance Culture, 1420–1600: Players of Function and Fantasy by Victor Coelho and Keith Polk Michael Eisenberg Instrumentalists and Renaissance Culture, 1420–1600: Players of Function and Fantasy. By Victor Coelho and Keith Polk. Cambridge: Cambridge University Press, 2016. [xiv, 331 p. ISBN 9781107145801 (hardback), $99.99; ISBN 9781316573105 (e-book), varies.] Illustrations, bibliography, index of primary sources, general index. In this broad treatment of Renaissance instrumental culture, Victor Coelho and Keith Polk provide a rich and variegated picture of how instrumentalists created, functioned, and lived. Specific case studies of individual Renaissance instrumentalists and events serve to illustrate trends in instrumental practice during the long Renaissance. By focusing on the agency and lives of actual musicians and events, the authors provide an immediate context for interpreting the role instrumental music played in Renaissance musical life. This study considers discrete aspects of instrumental music making, including the impact of individual patrons and the protocols of patronage at large, instrumental music's role in courtly and civic festivities, normative pedagogical and notational practices, and, in the last chapter, a survey of diverse organological categories that furnishes data about a range of instruments, accompanied by a compendium of iconographical images. Throughout the work, socio-economic topics, such as the constitution of guilds, procedural practices with apprenticeships, general pedagogical norms, and theoretical training (pp. 199–204 passim) bolster the description of players' education, pedagogical methodologies, and general work behavior as collective institutionalized communities. These discussions even extend to offering some specific figures—numbers culled from an array of secondary sources—regarding wages, benefits, apprenticeship enrollment, instrument building, and courtly and private acquisition of these instruments. The authors synthesize archival and primary-source work from Howard Mayer Brown, David Fallows, Joshua Rifkin, Reinhard Strohm, and others, in order to plot out general stylistic, repertorial, and socio-economic paths and overall development for instrumental practice. Utilizing this disparate data, Coelho and Polk also track the role of the instrumentalist through the Renaissance, which evolved from the status of mere piffaro to the esteemed rank of "musician." The first chapter opens with an examination of patronage networks, commissions, and sources of compensation as divided between courtly, ecclesiastical, civic, and private spheres. Within this frame, the authors foreground the Burgundian court of Philip the Good with its "imperative of 'image'" (p. 19) and prestige, the Ferrarese court of Ercole d'Este, the court of Henry VIII, and the Habsburg courts of Maximilian I and Charles V. Numbers citing overall instrumental forces and instrumental compositions as well as musicians documented in the orbit of a given court [End Page 609] draft a picture of courtly musical life that collates the respective courts' predilections and compositional tastes and reveals a strategy of competitive courtly magnificence. Beginning with fifteenth-century codices containing music composed or arranged for instruments per se, including the earliest survival of written keyboard music in Faenza, the Buxheimer Orgelbuch, and the Casanatense canzoniere (possibly owned by Isabella d'Este), the second chapter embarks on an exhaustive comparison of available sources for Renaissance instrumental music. The discussion also includes a range of printed sources such as the 1507 Ottaviano Petrucci print of Francesco Spinacino's lute tablature and Claudio Merulo's Ricercari d'intavolatura d'organo (1567). The third chapter deals with professional and amateur players' lives, education, and work conditions. During the ensuing discussion of musical training through the apprenticeship ranks, Coelho and Polk point out the disjunction between master players with and without court appointments, and the resultant dilemma for aspiring students who wished to engage teachers who might offer lucrative placements for work but in addition would be sufficiently accessible (or even present). The following chapter looks at music's function within festivals, ritual, and the theater. This treatment of instrumental music in the context of celebration and ceremony collates inscriptional accounts from events like the renowned Medici wedding festivities, Maximilian I of Habsburg's triumphal if compulsory entry ceremony into Bruges, and various other seasonal civic and ecclesiastical processions. This frame serves as an opportunity for assessing how instrumental and repertorial choices reflected status and purpose and how these events constructed the politics and tone of civic and courtly life...

The (Uncertain) 'Withering Away' of the Death Penalty Due to Decreasing Popularity and Super-Regulatory Costs

This concept paper examines three new books on the death penalty, published from 2016-2018 for differing theses regarding possible abolition. Scholars during this period have interpreted the decreasing popularity of capital punishment and a super-regulatory costly legal environment as “the withering away” of the death penalty. The themes of the books center both on the slow demise of the death penalty due to expensive, time consuming legal regulation and racial inequality and on the expectations and upset results of the 2016 presidential race related to prospective Supreme Court appointments and the death penalty’s judicial abolition. The end result is not certain.

The Judicial Bookshelf

The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. I. “The Supreme Court,” insisted Alpheus Thomas Mason and William M. Beaney nearly four decades ago, “has always con­ sisted largely of politicians, appointed by politicians, confirmed by politicians, all in furtherance of controversial political objec­ tives. [Since] John Marshall the Court has been the guardian of some particular interest and the promoter of preferred values.”1 This first sentence in the introduction to the sixth edition of the authors’ text and casebook on American constitutional law, however, did not go unchallenged. As Professor Mason explained to the author of this review essay some months after Prentice Hall published the new edition in January 1978, Justice Lewis F. Powell, Jr., had taken issue with the claim, letting the book’s senior author know that the Justice considered himself a judge, not a politician. Justice Powell’s mild admonishment may have said as much about the general public’s regard for politics and politicians as it did about the Justice. Mason and Beaney’s assessment joined the long-running conversation among stu­ dents of the Court as to whether or to what degree the Supreme Court is or should be a majoritarian or countermajoritarian institu­ tion, that is, whether the Court should bend with or againstthe tides ofpublic opinion. And in that calculation, certainly the President’s role in appointing Justices must figure prominently. However, to the degree that the opportunities for nominations are sporadic or reduced, so is the opportunity for different faces, interpretative approaches and values to be added to the Bench, a reality compounded by infrequent and irregular vacancies on the High Bench. Within those confines, recent Supreme Court appointments suggest a clear career path in that most recent Presidents have overwhelmingly preferred nominees who are themselves sitting judges or who at least have had experience as a judge, a practice which seems to discount Justice Felix Frankfurter’s unequivocal, if self-approving, assertion over a half-century ago that “the correlation between prior judicial experience and fitness for the Supreme Court is zero,”2 a statement he made as a rejoinder to those who—at a time ofheightenedjudicial activism —had insisted that judicial experience be a qualification for nominees to the Court. 184 JOURNAL OF SUPREME COURT HISTORY A Justice’s pre-Court experience figured prominently on an occasion shortly after Solicitor General Elena Kagan joined the Court in 2010. In a classroom of thirty undergraduates, this essay’s author distrib­ uted a table that listed the name ofeach ofthe sitting members of the Court, along with the date ofthe appointment ofeach, age at the time ofnomination, the appointing President, name ofthe Justice each had replaced, and the position held at the time ofnomination. I then asked my students for comment about anything on the table that struck them as noteworthy. Reactions varied considerably. Several noted the presence of three women. A few remarked that the Court of 2010 was the handiwork of five Presidents. Two thought some of the Justices seemed very old. Only one found it significant that all but Elena Kagan reached the High Bench from one of the U.S. Courts of Appeals. Their assumption —in a baseball analogy—was that if one wants to pitch and bat at Wrigley Field, the player must first pitch and bat in the minor leagues. Indeed, in the judicial context, that assumption seems to have been held by most recent Presidents. Moreover, had the table been constructed to reflect the Court before Justice John Paul Stevens’s departure and Justice Kagan’s arrival, it would have depicted a Bench where every Justice stepped to the top from one of the courts of appeals. Furthermore, Justice Sandra Day O’Connor’s retirement—she had come to the Supreme Court from the Arizona Court of Appeals— and Justice Samuel A. Alito’s arrival created an unprecedented situation: for the first time since the federal courts of appeals were created in 1891, every Justice had seen prior judicial service at that level, most often on the Court ofAppeals for the District ofColumbia Circuit. Moreover, even the failed presidential selections of recent decades overwhelmingly involved sitting judges: Judge John Parker, Justice Abe Fortas...

The commercialisation of equity

This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the ‘commercialisation’ of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that flexibility is a lack of doctrinal coherence and the development of equitable principles that will apply in, and beyond, the commercial context. We also argue that this trend has important implications for the coming rounds of Supreme Court appointments.

National Judicial Commission In India: The New Challenge

Art. 50 of our constitution provide - separation of powers and independent judiciary (under directive principles) and Art. 13 of the Indian constitution provide vital power to amend any new statute and empowered to Supreme Court to check the constitutional validity of particular act/statute. For much of its history the Indian judiciary has been regarded as largely fair and incorruptible. No action was taken on the bill but the system of Supreme Court appointments that it envisaged was mandated three years later by the Supreme Court itself. In Supreme Court Advocates-on-Record Association vs. Union of India (1993 (4) SCC. 441) the Court ruled that the Constitution’s provision that the President appoint Supreme Court judges in ‘‘consultation with such Judges of the Supreme Courts...as the President may deem necessary” (Article 124(2)) meant that the advice of the Supreme Court judges was binding upon the President. It also resolved that the judges involved in this ‘consultation’ would be the Chief Justice of India and the two judges next in seniority. This decision was upheld in 1998 in the Third Judges case, only slightly modified to involve the Chief Justice of India and the four judges – rather than two – next in seniority as well as all Supreme Court judges from the candidate’s High Court. The Supreme Court of India and the High Court’s set the standard for judicial conduct and competence in the country. It is vital that we create a National Judicial Commission, combining input from the elected branches of government and the judiciary, to appoint and over see the judges of the Supreme Court and High Court.