Modern Supreme Court Research Articles

Judicial self fashioning: Rhetorical performance in Supreme Court opinions

Justices on the United States Supreme Court use rhetorical strategies to maintain institutional legitimacy. In the court opinion, a strategy called the monologic voice presents a flattering depiction of the Court. The monologic voice occurs through two tones, the individualistic and collective, which respectively maintain the Justices’ legitimacy through critique and the Court’s legitimacy through unification. We train large language models to identify these rhetorical features in 15,291 modern Supreme Court opinions, issued between 1946 and 2022. While the fraction of collective and individualistic tones has been relatively consistent between 1946 and 2022, the Rehnquist Court used the collective tone at a higher rate than any other Court. In recent terms, 2021 and 2022, we find suggestions of another rhetorical shift, as all Associate Justices of the Roberts Court, excluding Chief Justice Roberts, used the individualistic tone at a historically high rate.

The Highest Suggestion in the Land: Obiter Dicta and the Modern Supreme Court of Canada

The Highest Suggestion in the Land: Obiter Dicta and the Modern Supreme Court of Canada

American Public Opinion and the Modern Supreme Court, 1930–2020: A Representative Institution by Thomas R. Marshall

American Public Opinion and the Modern Supreme Court, 1930–2020: A Representative Institution <i>by Thomas R. Marshall</i>

The U.S. Supreme Court Is Not a Dahlian Court

AbstractRobert Dahl's “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker” has long enjoyed pride of place within American politics scholarship, especially among regime theorists. However, Dahl's views of the U.S. Supreme Court are no longer defensible. It is essential for our field to move beyond “Decision-Making in a Democracy” in order to better theorize and explain the modern Supreme Court.

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

AMERICA’S RACIAL STAIN The Taint Argument and the Limits of Constitutional Law and Rhetoric

Justice Frankfurter's Contextual Marketplace

Justice Frankfurter is not known for foundational First Amendment opinions, like his mentors, Justices Holmes and Brandeis. He also is not known for helping to lay the groundwork for the modern First Amendment, like his rivals and contemporaries on the Court, Justices Black and Douglas. His lengthy, complex, and nuanced free-expression opinions, however, provide an alternative theoretical framework for how the marketplace of ideas can be conceptualized in the networked era. Drawing from his opinions, this article examines the historical development of marketplace theory, contending the theory has never had a monolithic meaning, and analyzes Justice Frankfurter’s First Amendment opinions, ultimately constructing the contextual marketplace. The contextual approach provides a more inclusive, malleable, and protective foundation for the marketplace in the twenty-first century, finding substantial support from Justices Holmes’s and Brandeis’s writings, modern Supreme Court decisions, and legal scholarship.

Personal Jurisdiction and the Declaration of Independence

The Declaration of Independence accuses the King of having “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have displayed remarkably little interest in exploring its factual foundations. This Essay traces the colonists’ complaint to a somewhat surprising and unexpected source — a dispute about personal jurisdiction. During the late eighteenth century, the administrative officials responsible for overseeing Britain’s North American possessions adopted an increasingly restrictive view of judicial jurisdiction, seeking to stamp out the custom of foreign attachment of nonresidents’ property that had proliferated throughout the colonies. The elected officials of North Carolina pushed back against the Crown’s efforts to deprive them of their privilege of foreign attachment by refusing the Governor’s insistence that a provision authorizing the procedure be stricken from a bill renewing authorization for the colony’s court system. The resulting impasse effectively terminated judicial authority in North Carolina and left the residents of the Colony without a fully functioning court system for more than three years. The Declaration of Independence, drafted amidst the North Carolinians’ showdown over foreign attachment, incorporated their complaint as one of the twenty-eight charges of royal abuse that the colonists claimed justified their claim to independence. Ironically, the restrictive ethos that animated Britain’s late eighteenth-century hostility to foreign attachment and that provided the grounds for the colonists’ complaint finds echoes in the modern Supreme Court’s restrictive approach to personal jurisdiction. This Essay uses the experience of the Founding-era showdown over personal jurisdiction as a lens through which to examine modern efforts by the Court to cut back on the jurisdictional reach of state courts. Although this Essay does not propose a specific framework to replace the Court’s existing doctrine, it urges the Court to abandon its defendant-centric emphasis in favor of an approach that gives more meaningful credence to the sovereign interests of the respective states in determining the jurisdictional reach of their own courts.

Substantive Toleration and Viewpoint Discrimination

Under modern Supreme Court doctrine regarding the First Amendment freedom of speech, the court distinguishes between content-based regulations of free speech that involve viewpoint discrimination versus content-based regulations that only involve subject-matter or topic discrimination. Viewpoint discrimination occurs when government action is triggered depending on which side of a topic the individual supports. Subject-matter or topic discrimination occurs when government action is triggered whenever a topic/subject-matter is discussed without regard to the person’s views on that topic/subject-matter. While any form of content-based discrimination by government is troubling, viewpoint discrimination is a more troublesome form of content discrimination because it involves the government taking sides in a debate. Most of the time this distinction is clear, but occasionally categorizing a regulation has given the Court some problems. While the holdings in the cases may be defensible, one set of cases from 1988 – 2007 seem to involve strained reasoning: Boos v. Barry, Finley v. National Education for the Arts, and Morse v. Frederick. A second, more recent set of cases from 2017 – 2019 seem to adopt reasoning contrary to these three cases: Matel v. Tam and Iancu v. Brunetti. The 2015 case of Walker v. Texas Department of Transportation, which also includes viewpoint discrimination issues, also has problematic reasoning. One way to understand these cases is to note that in the earlier set of cases a majority of the Supreme Court had a predisposition, if possible, to uphold traditional moral values in society despite some impact on a pure marketplace of ideas rationale. The second set of cases involves a changed predisposition among the Court majority to adopt a purer marketplace of ideas methodology that government should tolerate all kinds of speech without regard to the problematic moral values embedded in that speech. Both these approaches have problems in practice. This can be seen by considering three kinds of moral philosophies: (1) a moral philosophy based on upholding traditional moral values; (2) a moral philosophy based on “procedural toleration” of tolerating all kinds of speech without regard to any problematic moral values embedded in that speech; and (3) a moral philosophy based on “substantive toleration.” Some persons hear the word “tolerance” and they think it means all values are relative and that every person’s views are equally entitled as a procedural matter to be viewed as legitimate from a moral perspective. In contrast, other persons understand that “tolerance” involves a substantive commitment to treating other persons with equal concern and respect, and that individuals who espouse non-tolerant “nativist” or “cultural supremacists” notions violate this substantive commitment to tolerance. Because “nativist” or “cultural supremacist” notions violate a substantive commitment to tolerance, from the perspective of “substantive tolerance” their views should not be entitled to equal concern and respect and their pleas for tolerance of their perspectives should be rejected. The thesis of this article is that persons should adopt “substantive toleration” as the moral philosophy to which to aspire. From this perspective, a tolerant person has no obligation to, and indeed should not, tolerate intolerant attitudes in others. Viewpoint discrimination law should take this insight into account in resolving the problematic case reasoning of the viewpoint discrimination cases of the last four decades.

The Bill of Rights before the Civil War: State Sovereignty, Strict Construction, and the Presumption of Constitutionality

Excerpt from introduction: Anti-establishment at issue in American Legion is one of several First Amendment principles. In other areas of First Amendment jurisprudence, Free Exercise and Free Speech cases, the modern Supreme Court asks whether the government regulation unnecessarily restricts religious liberty or free speech. In a common constitutional query for adjudication of these questions, the Court first asks whether the right at issue is fundamental. For “fundamental guarantees,” of which Free Exercise and Free Speech qualify, the Court applies a heightened level of strict scrutiny against the state or national regulation, permitting only those regulations or actions for which the government proves that a compelling state interest is at issue and that the regulation is narrowly tailored to meet that government interest. As discussed below, the Supreme Court’s First Amendment jurisprudence contrasts sharply with the Bill of Right’s design and early interpretation. Matters concerning religion, speech, and press were reserved for the states. Through generations of precedents, the modern Supreme Court has inverted the Bill’s purpose. Below, I discuss the framing of the Bill, state sovereignty, strict construction, and the presumption of constitutionality. In the process, I examine early case law on the Contract Clause and the controversial Alien and Sedition Acts — one of the first major constitutional challenges where these views were examined.

Revisiting the fraud exception: a critique of United City Merchants v Royal Bank of Canada 40 years on

AbstractMuch has changed in the four decades since United City Merchants v Royal Bank of Canada, in which Lord Diplock established the fraud exception in transactions financed by documentary credit. In particular, the introduction of the UCP 600, case law on nullity documents and amendment to the American fraud exception justify a reconsideration of both the policy arguments underpinning Lord Diplock's rule and the fate of documents known to be forged or null at the time of presentation. Accordingly, two arguments are made in this paper. First, a consideration of the broader exception in the US should prompt a modern Supreme Court to re-examine his Lordship's insistence that a narrow exception was required to preserve the efficiency of the credit mechanism. In addition, it further argues that banks should be entitled to reject known nullities and forgeries as non-complying. This argument would reinstate the doctrine of strict compliance, which was overlooked in United City Merchants, and is based on the clarified definitions in the UCP 600, more recent judicial consideration of nullities and the existence of the ICC's International Maritime Bureau.

Establishment and Endorsement

The Constitution’s Establishment Clause prohibits government from adopting any official policy “respecting an establishment of religion.” The modern Supreme Court has interpreted this provision as, in some circumstances, forbidding government from making even hortatory endorsements of religion that are not, in any legal sense, coercive. The Court’s holdings to this effect have provoked dissenting opinions from some of its members, most notably Justice Scalia, who generally took the position that the Establishment Clause prohibits only official acts backed by threat of penalty, such as using public funds for the support of religious institutions. Yet the Court has never fully embraced Justice Scalia’s view, and academics, too, have overwhelmingly sided against him. Nevertheless, this Article argues that Scalia’s interpretation of the Establishment Clause is substantially correct, save for a minor concession the Justice made to the opposing camp that seems to have little historical basis. I begin by presenting a thorough historical account of the Establishment Clause’s meaning. I contribute to existing literature by considering not only Framing-era, but also Reconstruction-era, historical evidence—including some sources that, so far as I am aware, have been overlooked in prior scholarship on this issue; as well as by attempting to respond more thoroughly than have other commentators to Akhil Amar’s especially forceful critique of Scalia’s view. Next, I consider whether the existing Establishment Clause precedent that is inconsistent with original meaning deserves stare decisis treatment, and then suggest some changes to existing Establishment-Clause doctrine that I think would bring the law closer to the original meaning of the relevant constitutional language. Finally, I conclude with some reflections on my arguments’ practical implications.

Statutory Interpretation, Judicial Discretion, and Equitable Defenses

Equitable defenses were given up for dead after eBay v. MercExchange. But they have been resurrected. The Supreme Court is raising the dead in recent decisions. It is integrating these judge-made doctrines into federal law despite their omission from the language of the legislation. The fusion of equitable defenses into federal statutes is important because it allows judges discretion to vary statutory outcomes on a case-by-case basis. As a result, an assortment of indeterminate defenses may stand in the way of remedying statutory violations.The Supreme Court’s approach to equity exerts a decisive influence on legislative developments. There is considerable controversy surrounding the judicial use of equitable principles to deny statutory relief. Of equal concern is that courts engage in interest balancing or policy-making that may appear inconsistent with the federal judicial role. Also questionable is whether these elusive concepts can be adequately contained and comprehensible. Scholars have trained a precise lens on the issues of judicial authority and institutional competence involving statutory remedies. A corollary concern—one so intuitive we lose sight of it—is equitable defenses. The Court has yet to account for the recognition of equitable defenses that forfeit congressionally-created causes of action.This Article begins to outline an approach to the interaction between written statutes and unwritten equitable defenses. Concentrating on Supreme Court cases, it examines the decisional law of eight defenses across almost as many statutory subjects over the last two centuries. The Article exposes an equity-protective principle of interpretation that favors these ancient doctrines in modern Supreme Court practice. It also identifies possible bases for this assumption. It additionally responds to potential objections to this default rule that approves equitable defenses in legislation that does not directly provide for them. Taken as a whole, the Article explains and defends the recognition of equitable defenses in statutory law.

The Making of the Supreme Court Bar: How Business Created a Solicitor General for the Private Sector

This Essay tells a simple but important story about power and the law: that of the rise of the modern Supreme Court bar. Since 1985, a small cadre of private attorneys has come to dominate Court advocacy. While the share of lawyers making their first arguments before the justices fell from 76% to 43% between 1980 and 2007, the fraction with ten or more arguments under their belt rose from 2% to 28%. Similarly, while litigators with five or more previous arguments were responsible for 5.8% of the case petitions granted in October Term 1980, that quotient soared to 55.5% by 2008. This elite bar disproportionately influences the Court's activity. Of the 17,000 lawyers who petitioned the Court from 2004 to 2012, the top sixty-six succeeded in getting their cases heard six times more often than their competitors. Interviews with former Supreme Court clerks, who read and summarize cert petitions for the justices, confirm that they place outsized weight on briefs filed by prominent advocates. Statistical analysis further shows that these lawyers significantly raise a party's chance of success on the merits. The bar's success on behalf of business has induced a form of "docket capture." As legal scholar Richard Lazarus has observed, the bar has forced a surge in antitrust cases that has softened anti-monoppolistic doctrine and cleared the way for aggressive mergers. It has similarly managed to persuade the justices to limit punitive damages in mass tort litigation. The bar has therefore played a crucial role in making today's Court one of the most business friendly in the nation's history.

Unchained Succubus: A Queer New Institutional Analysis of U.S. Supreme Court Nomination Hearings

Modern Supreme Court nomination hearings are contentious political events, as evidenced by the four held during the 109th and 111th Congresses to confirm John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Senators appear to raise suspicion of nominees purposefully through their questioning during Judiciary Committee hearings, connecting the label of “judicial restraint” with candidates who are male, white, straight, and prone to “reason.” Appointees thought to embody the feminine, nonwhite, queer, and emotional practices of “judicial activism” to offer a contrast. This dichotomous construction has made debates during the nomination process destructively reductive. A paradox thus emerges: by ignoring the importance of descriptive representation, the identity of potential justices to the Supreme Court becomes one of the most salient issues during the hearings; subsequently, this has resulted in senators using cues to create a caricature or “straw man” of nominees belonging to one or more minority groups in order to weaken and discredit otherwise qualified jurists and achieve a party “win” against the White House.

Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'

Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'

Pace Scalia, Thomas, and Gorsuch, a True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution, Not a Static or Fixed Constitution

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers and ratifiers’ intent or action. Among originalists, there is a debate whether the framers and ratifiers’ actual “original subjective intent” should govern (intent) or whether one should instead look to the “original meaning” of the words adopted by the framers and ratifiers (action). In most cases, the result would be the same under either approach. For this reason, as Justice Scalia once acknowledged, “[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather between original meaning (whether derived from Framers’ intent or not) and current meaning.” This is the issue on whether to adopt a “static” or “living” model for constitutional interpretation. What is often unappreciated in addressing this question is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living Constitution. Under such a model, later legislative, executive, or social practice, or judicial precedents, can change the meaning of a constitutional provision. Thus, while it has been noted that standard “originalist” supporters share the premise that the original meaning of constitutional text is fixed at the time each provision is framed and ratified, interpretation according to any version of “originalism” actually does not commit the interpreter to a “static” or “fixed” interpretation of the Constitution. Instead, a “true originalist” form of interpretation can incorporate the principle that the provision was capable of evolution over time. Part II of this article summarizes the four main judicial decisionmaking styles which exist regarding constitutional interpretation. Part III then summarizes the argument that the overwhelming historical evidence is the framers and ratifiers believed in a living Constitution model of interpretation. Without historical support for the standard version of originalism, which adopts a “fixed” or “static” model of interpretation, that leaves supporters of the standard version with only the argument that such an approach is a better approach to interpretation, even if it was not shared by the framers and ratifiers. Part IV of this article discusses the arguments why such standard originalism should not be preferred on normative grounds. Part V of this article provides a brief conclusion. That conclusion notes that the proper approach to constitutional interpretation on both original intent and normative grounds is to interpret the Constitution in the manner that the framers and ratifiers would expect it to be interpreted today. That approach is best reflected on the modern Supreme Court in the interpretation approach of Justice Kennedy, and former Justices O’Connor and Souter. Such an approach represents “True Originalist” interpretation.

Judging the Judiciary as Federalism’s Umpire - Conflicting Visions of Canadian Federalism and the Ideal Role of the Judiciary Surrounding Bennett’s New Deal

When an attempt to shift the responsibility for unemployment insurance from the provinces to the federal government in response to the Great Depression was halted in 1937 after having been deemed unconstitutional by the judicial committee of the Privy Council, it provoked angry responses from contemporary legal scholars. Some questioned the wisdom of British Judges making rulings of social importance over Canadian affairs. However, newer analysis of the Court's decision, as well as a breakdown of some of the criticisms of the past shows that many of the arguments levied against the JCPC were misguided and that the JCPC, like the modern Supreme Court that replaced it, effectively played the role of an umpire in setting disputes between the two levels of government in a democratic fashion, as well as in a manner that conforms to Canada’s multinational character.

Statutory Interpretation, Judicial Discretion, and Equitable Defenses

The Supreme Court’s approach to equity exerts a decisive influence on legislative developments. There is considerable controversy surrounding the judicial use of equitable principles to deny statutory relief. Of equal concern is that courts engage in interest balancing, or policy-making, that may appear inconsistent with the federal judicial role. Also questionable is whether these elusive concepts can be adequately contained and comprehensible. Scholars have trained a precise lens on the issues of judicial authority and institutional competence involving statutory remedies. A corollary concern – one so intuitive we lose sight of it - is equitable defenses. The Court has yet to account for the recognition of equitable defenses that forfeit Congressionally-created causes of action.This Article begins to outline an approach to the interaction between written statutes and unwritten equitable defenses. Concentrating on Supreme Court cases, it examines the decisional law of eight defenses across almost as many statutory subjects over the last two centuries. The Article exposes an equity-protective principle of interpretation that favors these ancient doctrines in modern Supreme Court practice. It also identifies possible bases for this assumption. It additionally responds to potential objections to this default rule that approves equitable defenses in legislation that does not directly provide for them. Taken as a whole, the Article explains and defends the recognition of equitable defenses in statutory law.

Reconsidering Substantive Canons

This paper provides the first empirical study of the Roberts Court’s use of substantive canons in its statutory interpretation cases. Based on data from 295 statutory interpretation cases decided by the Roberts Court during its first six-and-a-half terms, the paper argues that much of the conventional wisdom about substantive canons of statutory construction is wrong, or at least overstated with respect to the modern Supreme Court. Substantive canons — such as the rule of lenity, the avoidance canon, or the presumption against extraterritorial application of domestic laws — have long been criticized as undemocratic judge-made rules that defeat congressional intent, afford willful judges a convenient vehicle for massaging different meanings out of the same text, and make statutory interpretation unpredictable, because judges invent new canons and reject old ones to suit their changing tastes. Scholars have bemoaned the amount of work that substantive canons perform in statutory interpretation cases and several have charged that textualist judges, in particular, overuse such canons.Whereas most previous studies have focused on the Rehnquist Court, this paper reconsiders the substantive canons in light of new data collected from the Roberts Court. The data show that contrary to the conventional wisdom, substantive canons are infrequently invoked on the modern Court — and that, even when invoked, they rarely play an outcome-determinative role in the Court’s statutory constructions. Indeed substantive canons often are referenced as an afterthought, or add-on argument supplying minimal additional support to an interpretation reached primarily through other interpretive tools. Perhaps most surprisingly, textualist Justices rarely invoke substantive canons in the opinions they author; indeed, intentionalist Justice Stevens leads the Roberts Court in references to such canons.The paper also challenges scholars’ gloomy warnings that Justices in the modern, New-Textualism-influenced era have replaced legislative history with substantive canons as the go-to resource for deciphering ambiguous statutory text. Rather, the data from the Roberts Court show that most of the Justices referenced legislative history at slightly, or even substantially, higher rates than they referenced substantive canons. Moreover, the Court’s own precedents, followed by practical-consequences-based reasoning — rather than substantive canons or legislative history — seem to be the unsung gap-filling mechanisms that the Justices turn to when confronted with unclear statutory text. The paper first reports the findings from my study of 295 Roberts Court cases and then explores the theoretical implications of these findings for several leading statutory interpretation theories and debates.

The Robinson-Patman “In Commerce” Requirement

Despite its unambiguous text, courts have mostly failed to interpret the Robinson-Patman Act’s “in commerce” requirement—one of three subelements comprising the Act’s interstate commerce element—to mean what it says, that is that a plaintiff only needs to show that any of the defendant’s discriminatory sales were in interstate commerce. While the plain language of the “in commerce” subelement requires nothing more, the legal tests applied by most courts go far beyond this “any” requirement. In fact, courts have held that the “in commerce” subelement requires proof beyond a de minimis number of interstate discriminatory sales. These courts’ solution to what they likely see as a problem of overbroad liability under the Act actually creates more complexity than it eliminates and is unmoored from the statutory text. This article examines a number of these courts’ interpretations of the “in commerce” subelement, along with influential scholarship. Then it offers an alternative, practical test—staying faithful to the statutory text—for determining whether a plaintiff has satisfied the Robinson-Patman Act’s interstate commerce element. “Any” should mean any. Thus, this Article describes a holistic analytical approach for courts and parties to follow so that “any” indeed means any as to satisfying the interstate commerce element while also avoiding imposing liability where it would be inconsistent with the Act to do so. This article also asserts that another historical interpretive practice regarding this element of the Robinson-Patman Act should be discarded: in light of modern Supreme Court jurisprudence regarding the subject-matter jurisdiction versus ingredient-of-claim-for-relief dichotomy, particularly Arbaugh v. Y &amp; H Corp., 546 U.S. 500 (2006), the interstate commerce element should not be treated as “jurisdictional.” Instead, this element should be considered simply as a prima facie element of a Robinson-Patman Act plaintiff’s claim.