Justice Samuel Alito Research Articles

“Returning” Abortion to “the People and Their Elected Representatives”: Chaos, Conflict and Access in Wisconsin in the Aftermath of Dobbs v. Jackson Women’s Health Organization

On 24 June 2022, the United States Supreme Court overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), putting an end to nearly fifty years of constitutional protection for abortion rights. In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito, who authored the opinion for the Court, claimed that previous rulings on abortion had failed to “bring about the permanent resolution of a rancorous national controversy”, and that the “the authority to regulate abortion” was now “returned to the people and their elected representatives”. One of the central ideas of the ruling was thus that it would appease preexisting tensions and reduce confusion by allowing states and their people to better represent their values in their state laws. This paper will argue that it did no such thing and instead unleashed a wave of confusing cases involving competing and sometimes conflicting sources of power at different levels of government. To do so, it will focus on a specific state—Wisconsin—where abortions were unavailable for fifteen months because different sources of legal authority disagreed on which law should apply

INTRODUCTION: Securing Reproductive Justice After Dobbs.

When we conceptualized this symposium, Roe v. Wade1 was still the law of the land, albeit precariously. We aimed to commemorate its fiftieth anniversary by exploring historical, legal, medical, and related dimensions of access to abortion as well as the challenges ahead to secure reproductive justice. With the leak of the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization on May 2, 2022, we shifted to mark the dawn of a new era. In the nearly identical official opinion announced on June 24, 2022,2 Justice Samuel Alito, writing for the majority (6-3), overturned Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey.3.

"A Vigorous Campaign against Abortion": Views of American Leaders of Eugenics v. Supreme Court Distortions.

The Supreme Court decided Box v. Planned Parenthood of Indiana and Kentucky in 2019. Justice Clarence Thomas's opinion in the case claimed there was a direct connection between the legalization of abortion, in the late 20th Century, and the beginnings of the birth control movement a full three quarters of a century earlier. "Many eugenicists," Thomas argued, "supported legalizing abortion."Justice Samuel Alito highlighted similar claims in Dobbs v. Jackson Women's Health, citing a brief entitled "The Eugenic Era Lives on through the Abortion Movement." That brief was an echo of Justice Thomas' misguided attempt at history in the Box opinion. Similar claims reoccur in Judge Matthew Kacsmaryk's opinion in the Texas mifepristone case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration.These false claims are the focus of this article. There is no evidence that early leaders of the eugenics movement supported abortion as part of the movement for birth control. It is accurate to describe those leaders as anti-abortion, and their followers as people who condemned abortion for moral, legal, and medical reasons.

Voting Rights: Justice Alito’s False, Partisan Facts

In October 2022, during oral arguments in a US Supreme Court case concerning reapportionment, Justice Samuel Alito suggested from the bench that racial bloc voting in Alabama is a partisan, ideological difference, unrelated to race. Steve Suitts reviews this voting rights case and briefly explains how Alito ignores Alabama's long history of race-based voter suppression and why, if adopted in future cases, Alito's ahistorical assertion could devastate Black voters' chances to win voting rights challenges across the nation.

Bostock was Bogus: Textualism, Pluralism, and Title VII

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.

Covid‐19: Where We Are, What Got Us Here, and Where We Are Likely to Be Going—A Review Essay*

Covid‐19: Where We Are, What Got Us Here, and Where We Are Likely to Be Going—A Review Essay*

A More Perfect Pickering Test: Janus v. AFSCME Council 31 and the Problem of Public Employee Speech

n June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now be permitted. This Note proposes a test to allow courts to meaningfully respond to this influx of claims. By explicitly incorporating the “social value” of public employee speech into the Pickering balance test as a factor of equal weight alongside the existing factors—the individual employee’s right to speech and the employer’s interest in operating an effective workplace—courts can make meaningful sense of the doctrinal conflict Janus created while also respecting and promoting the unique role public employee speech plays in public discourse.

The Penalty Clause & the Fourteenth Amendment’s Consistency on Universal Representation

Many judges and scholars have read Section Two of the Fourteenth Amendment as evidence of the Constitution’s commitment to universal representation — the idea that representation should be afforded to everyone in the political community regardless of whether they happen to be eligible to vote. Typically, this analysis starts and stops with Section Two’s first clause, the Apportionment Clause, which provides that congressional seats are to be apportioned among the states on the basis of “the whole number of persons in each State.” Partly on this basis, the lead opinion in Evenwel v. Abbott rejected the argument that “One Person, One Vote” requires states to equalize the number of adult citizens when drawing legislative districts, affirming that states can draw districts with equal numbers of persons. But skeptics of the universal representation theory of the Fourteenth Amendment, most notably Justice Samuel Alito, have complained that this analysis is flawed because it ignores Section Two’s less-known and never-enforced second clause: the Penalty Clause. Under the Penalty Clause, states that deny or abridge the right to vote of otherwise qualified citizens are penalized with a reduction of their congressional representation. Any theory of representation from the Fourteenth Amendment, the skeptics argue, must grapple with all of Section Two. This Essay takes up that call and explains how the Penalty Clause is not only consistent with but reinforces the Fourteenth Amendment’s broader commitment to universal representation. Contrary to common misconceptions about the Penalty Clause, the Clause is structured so that the state as a whole loses representation in Congress, but no individual within the state is denied representation. In other words, the Penalty Clause does nothing to upend Section Two’s advancement of universal representation. If anything, the Penalty Clause actually reinforces Section Two’s commitment. By reducing a state’s representation proportionally, it contemplates the representational interests of nonvoters, a key feature of the universal representation theory. The Evenwel majority’s reading of Section Two is correct. Section Two counts and represents everyone — and the Penalty Clause does nothing to change that.

Double Duty across the Magisterial Branches

Double Duty across the Magisterial Branches SAIKRISHNA BANGALORE PRAKASH Supreme Court Justices have full-time day jobs. Justices have duties as federal judges on the apex court and many reason­ ably regard these responsibilities as requiring their complete and undivided attention. But Justices can do so much more, and they can be so much more. The Constitution does not bar them from serving their country in other ways. From our nation’s inception, several Justices also have occupied other high offices and taken on other vital responsibil­ ities. This article considers early examples of double duty and the constitutionality of these off-the-bench pastimes. The article makes two assertions. First, although the Constitution established three branches, each vested with a particular sort of power and thereby created what we call the separation of powers, it never demanded an absolute separation of personnel. To be sure, members of Congress cannot simulta­ neously serve in either of the other two branches because the Constitution specifi­ cally so proclaims.1 Yet there is nothing in the Constitution that prevents someone from being both a judge and an executive.2 Second, the founding generation did not read the Constitution as barring this parti­ cular practice. In fact, early Justices (and judges) simultaneously served their nation in other capacities. If that understanding and practice is still valid, as I believe it is, nothing today prevents Justice Samuel Alito from simultaneously negotiating with Kim Jong Un. Similarly, nothing bars modern executives from wearing two hats, hearing court cases in the morning and performing executive functions in the afternoon. Secre­ tary of State Mike Pompeo could be a judge on the Court of Appeals for the D.C. Circuit in his spare time. Doubly Dutiful Chief Justices Before diving into the legal questions about cross-branch service, some comments about John Jay and John Marshall are appropriate, as these are our earliest multi­ taskers, Justices who ably spanned two branches. Our story begins with John Jay. DOUBLE DUTY 27 Jay was a scion of a patrician New York family. He attended King’s College, now Columbia.3 He took up lawyering in 1768. A little less than a decade later, he became involved in the disputes with Great Britain, eventually favoring a complete break from that nation.4 In 1774 and 1775, he served as a New York delegate to the first and second Continental Congresses.5 In 1777, at the ripe age of thirty-two, he helped draft the first New York Constitution and was selected as the first chief justice of the New York Supreme Court.6 In 1778, New York re­ turned him to the Continental Congress, where his fellow delegates elected him to serve as their presiding officer, the president of the Continental Congress.7 This office was quite unlike our presidency, for its duties primarily consisted of chairing Con­ gress’s deliberations and proceedings. Jay simultaneously served as Congress’s presi­ dent and as New York Chief Justice until 1779, when he resigned the latter position.8 After a little less than a year as president, Congress sent Jay to convince Spain to recognize America’s independence and to procure a loan. He secured the latter, but not the former.9 From there, Congress dispatched him to Paris in 1782 to negotiate a peace treaty with the British.10 Although Benjamin Franklin and John Adams also served as treaty commissioners, Jay was the principal American interlocutor. The envoys secured the 1783 Treaty of Paris, with the British belatedly recognizing America’s independence.11 Of course, the diplomats received a strong assist from George Washington and the 1781 Battle of Yorktown. Jay returned to the United States in 1784 and discovered that the Continental Congress in 1784 had appointed him as its second Secretary of Foreign Affairs.12 Under the Articles of Confederation, there was no separate, independent executive. Rather, the Continental Congress exercised a few legis­ lative authorities and the executive power over foreign affairs, wielding war powers and directing diplomacy. While serving as Congress’s Secretary of Foreign Affairs through 1789, Jay wrestled with difficult matters related to piracy in the Mediterra­ nean, Spanish control of the Mississippi, and the...

The Jurisprudence of Justice Samuel Alito

Justice Samuel Alito has sat on the judicial bench for nearly 30 years and has authored more than 250 Supreme Court opinions, nearly 40% of those for a majority of the Court. But his jurisprudence has yet to be systematically described. Although superficial accounts have been offered, they diverge widely. To some commentators, for example, Justice Alito is a methodological pluralist or “newer textualist,” though to others he is an originalist of the same or similar stripe as Justice Antonin Scalia. Yet Justice Alito’s jurisprudence cannot so neatly be identified with these or other competing descriptions. This Article is the first systematic account in any legal publication of Justice Alito’s jurisprudence. It analyzes nearly three dozen of Justice Alito’s opinions to demonstrate that three themes characterize his jurisprudence: (1) a fact-oriented approach in which fact is distinct from doctrine; (2) an implementation of “inclusive originalism,” under which a judge may evaluate precedent, policy, or practice, but only if the original meaning of the constitutional text incorporates such modalities; and (3) a strong presumption in favor of precedent and historical practice. Justice Alito’s jurisprudence is largely consistent with Burkean Conservatism. The three themes of Justice Alito’s jurisprudence follow the two features of Edmund Burke’s philosophical method of approaching political questions. First, Justice Alito’s distinction between fact and doctrine acknowledges both the Burkean rejection of abstract theory and the necessity of placing factual circumstances before principle and theory. Second, Justice Alito’s deference to precedent and historical practice squares with the Burkean tradition of relying on tradition and prescriptive wisdom.

Both Sides of the Rock: Justice Gorsuch and the Seminole Rock Deference Doctrine

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case. Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the months leading up to his confirmation hearing, legal scholars pored over his opinions while he was a judge on the U.S. Court of Appeals for the Tenth Circuit, and they had already unearthed his discomfort with the Chevron doctrine. Similarly, through an analysis of his originalism ideology and textualist approach to judicial decision-making, they have attempted to predict how Justice Gorsuch will decide future cases in other important areas of the law. To date, however, Justice Gorsuch’s view on the Seminole Rock deference doctrine has gone unexamined by scholars. Known as Chevron’s “doctrinal cousin,” the Seminole Rock doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” Especially given the profound practical importance of the doctrine in our administrative state and the Court’s recent interest in it, an assessment of Justice Gorsuch’s view is not merely academic. This essay provides that assessment. First, the essay examines the Seminole Rock deference doctrine and explores the Court’s recent interest in the doctrine. Part II analyzes Justice Gorsuch’s likely view on the Seminole Rock doctrine by examining key Tenth Circuit opinions that will influence his view on Seminole Rock while on the Supreme Court. The essay concludes that although Justice Gorsusch would likely be very skeptical of Seminole Rock, he should ultimately choose to retain the doctrine provided that the Court continues to provide safeguards that would mitigate or even mute any perceived over-reach that the application of Seminole Rock allows in our administrative state.

Our Proudest Boast

It took 88 years to return to an old but proud principle of free speech law, one that was first announced in a little remembered dissent by Justice Oliver Wendell Holmes. That principle recently found noteworthy expression in Justice Samuel Alito’s opinion in Matal v. Tam (2017). For it was in that case that the Court harkened back to Justice Holmes’s dissent in United States v. Schwimmer (1929). This was Holmes's last free speech opinion. Notably, it was not a constitutional case, but rather a case involving an immigrant. Yet Holmes took the occasion to announce a broad new principle that would, in time, blossom into a major tenet of our free-speech jurisprudence – the need to protect the speech we hate. According to Holmes, this principle is not limited to citizens but applies to all those living in the United States. Holmes managed to do all this in 634 scant words. There is evidence that Brandeis played a role in spurring Holmes to write this dissent. But the circumstances of Holmes's life – the loss of his wife, the realization that his long career and life were coming to an end – also helped shape an opinion that is the antithesis of the values Holmes championed as a Justice: judicial restraint, a value-neutral jurisprudence and personal detachment from the facts of his cases and the people whose lives they affected. Schwimmer was the one case where Holmes showed a touch of humanity that was otherwise absent from his judicial work. As applied to the narrow facts of Schwimmer, the Supreme Court eventually adopted Holmes's view in Girouard v. United States (1946). But there is much more, namely, the evolution of an idea, magnificently expressed, that nine decades later is hailed by the Supreme Court as “the proudest boast of our free speech jurisprudence.”

U.S. Supreme Court gives pharma a win

The U.S. Supreme Court has handed a victory to the pharmaceutical industry and other businesses that want to prevent plaintiffs from shopping for friendly courts to hear product liability cases. In an 8-1 ruling, the justices on June 19 overturned a California Supreme Court decision that had allowed a nationwide lawsuit against Bristol-Myers Squibb to proceed in a state court. Nearly 600 out-of-state residents had joined 86 Californians in claiming the New York-based manufacturer had misrepresented the risks of taking its blood-thinning drug Plavix. California is widely viewed as a plaintiff-friendly state. But Bristol-Myers Squibb “did not develop Plavix in California, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California,” Justice Samuel Alito wrote in the majority opinion. “The nonresidents’ claims involve no harm in California and no harm to California residents,”

When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?

Those disappointed with the ruling by the Supreme Court of the United States in Burwell v. Hobby Lobby Stores, Inc.1 are seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to exempt a religious claimant's beliefs or practices from general legislation there must be no detrimental effect on third parties who do not share those beliefs.2 She was referring to those employees and their families as “third parties” who, because of RFRA, would not have available the full complement of contraceptive devices in their employer-provided health insurance plan. Although it is unclear whether Justice Ginsburg continues to rely on the Establishment Clause as imposing this categorical restraint on the authority of Congress to craft religious exemptions,3 some academicians argue that her thinking necessarily rests on the clause.4 It is of some importance whether these commentators are correct about the third-party harm rule being dependent on the Establishment Clause. Justice Samuel Alito, writing for the court in Hobby Lobby, squarely rejected the argument that third-party harms categorically defeat requests for accommodations under RFRA.5 He did not, however, consider the Establishment Clause. That was because the solicitor general never argued the clause. So these academicians are able to maintain that nothing in Hobby Lobby contradicts their reliance on the clause. They would, of course, like to have Justice Ginsburg on their side. In her recent concurrence in Holt v. Hobbs,6 Justice Ginsburg reiterated her view that substantial third-party harms are a categorical restraint on statutory religious accommodations, but she did not clarify whether her novel rule is derived from the Establishment Clause or is solely a limitation implicit in the underlying statutory claim.7

"What, Another Female Husband?": The Prehistory of Same-Sex Marriage in America

In the fall of 1835 Hiram Hurlburt, a young boy growing up in Vermont, paid a visit to the local tailor shop to order a coat. Waiting his turn for service, Hurlburt observed the unusual couple who owned the business. Charity Bryant, a woman in her late fi fties and the shorter of the two, took the orders and wielded the scissors to cut the cloth. Sylvia Drake, some years younger, stayed quiet as she plied her needle in working her way through a stack of garments. After placing his order and leaving the shop, Hurlburt “heard it mentioned as if Miss Bryant and Miss Drake were married to each other.” He found the marriage so unusual that he recalled it sixty-two years later, when writing his memoir; however strange the arrangement, though, Hurlburt seemed to approve. When he deduced during later visits to the shop that “Miss Bryant was the man” in the marriage, he judged her role to be “perfectly proper.” Hurlburt recalled the women as church stalwarts who “got along pleasantly together” and earned the approbation of the community.1 Hurlburt’s recollections challenge the popular assumption of same-sex marriage as a modern innovation. During the March 2013 hearings of United States v. Windsor, for example, Supreme Court justice Samuel Alito pronounced same-sex marriage “newer than cell phones.” Fellow conservatives have argued that for “3,000 years of recorded history,” or at the very least “since America’s founding,” marriage has been “an institution between a man and a woman.” Progressives disagree with conservatives’ declensionist criticisms, but they concur that such unions represent a radical break from the past. To its supporters, same-sex marriage signifi es the high point of a narrative of progress from capital sodomy laws to present-day court decisions in favor of gay rights.2

Always Eyes Watching You: United States v. Jones and Congress's Attempts to Stop Warrantless Government Surveillance

In recent years, technology has advanced to new levels. Technology that was exclusively used by government officials is now available to the general public. Unfortunately, law enforcement officials have taken advantage of technology's availability to prey on unsuspecting citizens and invade privacy protected by the Fourth Amendment. Governmental use of Global Positioning System (GPS) tracking devices has invaded the privacy of unsuspecting citizens, and in the absence of precedent, officials have continued to invade privacy. In United States v. Jones, the United States Supreme Court got its opportunity to halt governmental abuse of technology; however, the Court only addressed the physical element of Fourth Amendment searches instead of its presence through the use of GPS tracking devices without a physical trespass. As Associate Justice Samuel Alito suggests, Congress is an appropriate body to address the issue. Currently, the Senate Judiciary Committee is considering the Geolocational Privacy and Surveillance Act (GPS) Act. In 2011, Senator Ron Wyden (D-OR) and Representative Jason Chaffetz (R-UT) introduced the bill to require officials to show probable cause before obtaining a GPS tracking device. This article will explore the jurisprudence leading up to the Court's decision in Jones while emphasizing the Court's failure to fully address an expectation of privacy concerning abuse of GPS tracking devices. This article will also discuss the GPS Act and government officials' response to the Act. The article will analyze the strength and weaknesses of the Act and how Congress can address the Act's weaknesses before enactment. The author concludes by suggesting that Congress must act now to enact a law that not only strikes a balance between effective law enforcement investigations and privacy expectations, but also provides guidance for future cases involving governmental abuse of advancing technology.

High Court Bars Mandatory Life Terms for Juveniles

Back to table of contents Previous article Next article Legal NewsFull AccessHigh Court Bars Mandatory Life Terms for JuvenilesJonathan WolfeJonathan WolfeSearch for more papers by this authorPublished Online:3 Aug 2012https://doi.org/10.1176/pn.47.15.psychnews_47_15_10-aAbstractMandating the lifelong imprisonment of juvenile offenders, even for the most heinous of crimes, is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Fisun Ivan/ShutterstockThis is the primary reasoning behind the Supreme Court’s June 25 ruling in a pair of cases in which two men were sentenced to life without parole for their involvement in separate murders as juveniles.Evan Miller of Alabama was convicted in the 2003 murder of a neighbor, while Kuntrell Jackson of Arkansas was found guilty as the accomplice in a botched 1999 armed robbery that led to the killing of a video-store clerk.According to Justice Elena Kagan, who wrote the majority opinion in the court’s 5-4 ruling, mandatory life sentencing for young people convicted of homicide disregards ample evidence that juvenile offenders are both more mutable and capable of rehabilitation than adults, since like most youth under age 18, their brains are still developing and their decision-making capacity is not equivalent to that of adults.Kagan specifically cited an amicus brief co-signed by APA in January indicating that “an ever-growing body of research in developmental psychology and neuroscience” bolsters conclusions reached by the court in two earlier decisions about the concept of age-related differences in brain makeup (Psychiatric News, May 4).But while 2005’s Roper v. Simmons and 2010’s Graham v. Florida, respectively, outlawed capital punishment for all juvenile offenders and life sentences without parole for nonhomicide crimes, the court’s June decision prohibits the meting out of life-without-parole sentences in homicide cases without first considering mitigating circumstances.Kagan noted that Miller, who had been in and out of foster care as the victim of parental neglect from a drug-addicted mother and physical abuse from his stepfather, attempted suicide four times in his short life, beginning when he was in kindergarten.Similarly, Jackson was raised in a violent and chaotic atmosphere, with both his mother and grandmother having previously shot other people.“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Kagan wrote. “It prevents taking into account the family and home environment that surrounds him—no matter how brutal or dysfunctional.”In a concurring opinion, Justice Stephen Breyer further contended that Jackson’s status as an accomplice to murder should preclude him from receiving a life sentence without parole under Eighth Amendment protections, unless the state can determine his direct involvement in killing or intending to kill the murder victim.Chief Justice John Roberts, who wrote one of three dissenting opinions, countered that life without parole for juveniles convicted of murder does not represent “unusual” punishment, since both the federal government and the majority of states currently impose such sentences. He also accused the court of conflating decency with leniency.“Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again,” Roberts wrote. “But that is not our decision to make.”Justice Clarence Thomas also voiced strong objection to the majority’s interpretation of the Eighth Amendment, while Justice Samuel Alito asserted that, unlike in the cases of Miller and Jackson, the majority of juvenile homicides are committed by “young men who are fast approaching the legal age of adulthood.”Still, APA and other mental health organizations applauded the court’s ruling as a victory for recognition of the vulnerability, immaturity, and changeability that characterize the adolescent mind.“Once again, the Supreme Court has acknowledged that kids are not just little adults,” said child psychiatrist David Fassler, M.D., a clinical professor of psychiatry at the University of vermont and APA treasurer. “The court’s action… reflects the emerging public consensus that punishment that may be appropriate for adult offenders should not automatically apply in cases involving juveniles.”Ultimately, the court’s decision holds the potential for leading to an across-the-board prohibition of life-without-parole sentencing for juveniles convicted of murder, according to Paul Appelbaum, M.D., the Dollard Professor of Psychiatry, Medicine, and law at Columbia University, chair of the APA Committee on Judicial Action, and a past APA president.“In requiring individualized determinations before life without parole can be imposed, the court has taken an incremental step toward more rational sentencing for juveniles,” said Appelbaum. “Should it turn out that such sentences are being used arbitrarily, rather than being reserved for the most heinous offenses, the door is open for the court to reconsider whether they are constitutionally permissible in juvenile cases under any circumstances.” The Supreme Court ruling in Miller v. Alabama, which is linked with Jackson v. Hobbs, is posted at www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf. ISSUES NewArchived

The Supreme Court and Juvenile Justice

The Supreme Court and Juvenile Justice JUDITH S. KAYE* For so many things I thank the Historical Society profoundly, but place right at the top of my list the delightful opportunity your invitation has given me to read the prior Annual Lectures—interesting, exciting, thoroughly intimidating—touching on the Court’s history, its cases, its people, even its wives (the subject of Justice Ginsburg’s 1999 lecture). Wholly apart from the Society’s many initiatives to preserve the Court’s history and increase public awareness of its contributions to our nation, the now nearly three dozen Annual Lectures alone offer an amazing insight into this great institution. Justice Samuel Alito opened his 2008 lecture by explaining that he chose his subject—the origin of the baseball antitrust exemption—on a dark, cold December day, when thoughts of spring brought to mind thoughts of baseball. Hence he treated us to a session with our Great American Pastime, centered on the Court’s 1922 decision, Fed­ eral Baseball Club of Baltimore v. National League ofProfessional Baseball Clubs.1 I too made my choice ofsubject on a dark, cold December day, contemplating this mag­ nificent spring afternoon, when my favorite sport—ice hockey—would soon be packing its bags for the season. (And wouldn’t you know, the New York Rangers were out of it again!) My thoughts thus turned to other are­ nas and, not surprisingly, settled on the subject ofchildren, a subject that dominated my many sleepless nights as ChiefJudge ofthe State of New York, where—like state courts through­ out the country—we have a staggeringly high docket of Family Court cases, touching ev­ ery aspect of children’s lives. Just now in New York (the subject of several scathing re­ ports on our juvenile detention facilities) and in Pennsylvania (the site of a juvenile judge corruption scandal)—indeed, throughout the nation—attention is riveted on juveniles, chil­ dren accused ofwhat for adults mightbe crimi­ nal conduct. How do we balance today’s vexing crime and incarceration statistics with mod­ ern developmental science regarding troubled young people? After considerable reflection, my initial plan to address children generally thus narrowed a bit to juveniles, due process, THE SUPREME COURT AND JUVENILE JUSTICE 63 and the Supreme Court’s watershed decision ofMay 15, 1967, In re Gault.1 Most Americans know what “Miranda” stands for, even if they’re not sure about the origin of custodial warnings. Every law stu­ dent recognizes Dollree Mapp, John Terry, and Clarence Earl Gideon as important figures in the Supreme Court’s criminal procedure cases ofthe 1960s. Outside thejuvenile-justice com­ munity, however, how many Americans know the name Gerald Gault? Few, I suspect, are aware that the appeal on young Gerald’s be­ half struck at the heart of the assumed benev­ olence of our juvenile courts, agencies, and institutions, and in so doing shook the roots of thejuvenile-justice system nationwide. Who is Gerald Gault, and what circumstances led him to the Supreme Court ofthe United States? I. The Facts On June 8, 1964, at about 10 a.m., Gerald Francis Gault and a friend, Ronald Lewis, were taken into custody by the Sheriffof Gila County, Arizona. At the time of his arrest, Gerald Gault was fifteen years old and serv­ ing six months’ probation for being in the company of a boy who stole a wallet from a woman’s purse. Three years later, in his opin­ ion for a divided Court, Justice Abe Fortas described the events that followed. In reciting the facts and holding, I barely resist the temp­ tation to read his words verbatim—the story as told is fascinating. The June 8th arrest resulted from a tele­ phone complaint by a neighbor of the boys, Mrs. Cook, following her receipt of a lewd or indecent phone call. In Justice Fortas’s words, “the remarks or questions put to [Mrs. Cook] were of the irritatingly offensive, adolescent, sex variety.” When the sheriff picked up Gerald Gault at home and took him to the local Children’s Detention Home, his mother and father were both at work. The sheriff left no notice that their son had been arrested and took no...

George W. Bush, the Supreme Court, and the Pursuit of “Big Government Conservatism” in Federal Personnel Management

Ironically, by the end of the first year of the Obama administration, President George W. Bush appears to have gained an indirect impact on public personnel policy through his appointments of Chief Justice John Roberts and Justice Samuel Alito. In cases involving public personnel issues, both jurists have supported Bush’s preferences with respect to strict construction, executive power, and the use of racial and ethnic preferences. With one Obama appointee on the Supreme Court and another nominated, the prospects for the durability of that legacy in pursuit of “big government conservatism” are unclear. Nevertheless, this article’s analysis of Bush’s appointment “power in use” comports with findings regarding judicial appointee loyalty to presidential agendas that have emerged in recent years. It also suggests that further research on presidential appointments of federal judges and justices is needed and may demonstrate that the appointment power is an important determinant of public sector personnel policy in the United States.

An Open Letter from Heaven to Justice Samuel Alito

An open letter that reflects on the sentiments and advice of Judge A. Leon Higginbotham, Jr. to Supreme Court Justice Samuel Alito is presented. Concerns were raised on Alito's previous judgments on biased trials and his disregard for civil rights. Higginbotham asked Alito to be fair and prevent racial discrimination. He suggests Alito to speak out more decisively on important political and equality issues in the same manner of his predecessor, Justice Sandra Day O'Connor.