States Supreme Court Research Articles

Introduction On the Histories and Futures of Black New England Studies

Introduction On the Histories and Futures of Black New England Studies

Andre E. Johnson, No Future in This Country: The Prophetic Pessimism of Bishop Henry McNeal Turner

<i>Andre E. Johnson</i>, No Future in This Country: The Prophetic Pessimism of Bishop Henry McNeal Turner

Political Hearings Reinforce Legal Norms: Confirmation Hearings and Views of the United States Supreme Court

Does the political nature of modern judicial confirmation hearings lead the public to think of the Supreme Court as a political body? Some political actors inevitably attack the institution during a confirmation hearing—which should lead to a decrease in support for it—but they attack the Court for acting extra-judicially. More generally, confirmation hearings send the American public an important and universal message: that the Supreme Court at least ought to be a legal institution. Based on original panel data closely surrounding the confirmation hearings of Supreme Court nominee Amy Coney Barrett, I find that confirmation hearings lead the public to place greater value on the non-political characteristics of a judge. While Supreme Court legitimacy reduced among Democrats over the course of the hearings, all respondents (including Democrats) became more likely to emphasize the importance of the legal qualities in a judge. For Democrats, the data suggests these two processes (reduced legitimacy and increased emphasis on a judge’s legal characteristics) worked independently. For Republicans—and consistent with positivity bias theory—enhanced legitimacy was predicted by a decrease in focus on the political aspects of a judge over the course of the confirmation hearing.

Dark Money in Congressional House Elections

The deregulation in campaign finance, stemming from the 2010 United States Supreme Court decision in Citizens United v. Federal Election Commission, has led to nonprofit organizations with anonymous donors spending on advertisements targeting candidates. I study the effects of this “dark money” 501(c)(4) nonprofit spending on election outcomes in US Congressional House elections. Since 501(c)(4)s are not legally required to disclose spending to the Federal Election Commission, I use advertising data to measure their behavior. I estimate a model of the voter’s candidate choice, which is influenced by the spending of different groups. I find that 501(c)(4)s do not have significant effects on candidate vote share when accounting for the spending of candidates, parties, PACs, and Super PACs.

Unilateral Acquisition and the Requirements of Freedom: A Kantian Account of the Judicial Exceptions to Patent Protection

AbstractFor obscure reasons, courts exclude some statutorily patentable inventions (‘judicial exceptions’) from patent protection. These exclusions have been criticized for impeding innovation, contrary to the purpose of patent law. I argue that freedom requires these exclusions even if they impede innovation. Patents, like property, can be unilaterally acquired, limiting others’ freedom without their consent. Kant explains why, to reconcile property with equal freedom, only rivalrous objects in acquirers’ first possession can be unilaterally acquired. States can rightfully authorize unilateral acquisition of only these objects. Drawing from Kant, I explain how patent protection conflicts with equal freedom unless patented inventions involve inventive uses of rivalrous objects external to human bodies. Enabled by inventive concepts, these uses would be impossible without these concepts, and are thus in the first possession of their inventors. I then show how the most recent United States Supreme Court judicial exception decisions limit patent protection to inventive uses of rivalrous external objects.

Existence of Ideological Drift within the United States Supreme Court: An Analysis of Conservative Majority Votes

Ideological drift is the phenomenon in which an actor shifts their original political stance to the left or right of the political spectrum. Previous literature suggests that a liberal-inclined ideological shift occurs in the Supreme Court. However, there has been an absence of research confirming the presence of liberal ideological drift. The focus of this paper determines whether liberal ideological drift is prevalent in liberal justices and also perhaps the most surprising population: Conservative justices on the Supreme Court of the Modern Era (1946- present). We postulated that if a justice serves at least 10 terms, then a decreased frequency of majority conservative votes will be made evident, thus proving a liberal ideological drift. Our empirical findings support our postulation: a majority of conservative justices of the Modern Era have fewer conservative majority votes with the passage of 10 terms or more, therefore indicating an ideological shift to the left. There exist important caveats to our results, these include justices undergoing the acclimation or “freshman” effect (a phenomenon in which a justice will vote in accordance with the appointing president’s ideology). Our findings may provide useful information for the litigant community, advocates and opponents of Supreme Court term limits, and the general public.Keywords: Supreme Court, Supreme Court Justice, Ideological Drift, Liberal Justice, Conservative Justice, Bloc, Majority Opinion, Acclimation Effect, Freshman Effect

Drug trafficking, good faith, and legal standards to convict: How the United States Supreme Court is about to affect every prescriber in America.

Dr. Xiulu Ruan was a pain specialist in Alabama and, following his conviction in 2017, was sentenced to serve over 20 years in federal prison for violating several provisions of the federal Controlled Substances Act (CSA) relating to his prescribing practices. Dr. Ruan appealed his conviction and, in March of this year, argued before the US Supreme Court that he had been wrongfully convicted because the trial court had denied his ability to assert a good-faith defense concerning the prescriptions he issued.1 The last time the Supreme Court interpreted the CSA and its application to criminal cases involving prescribers was almost 50 years ago. The central question now before the Court is whether the government must merely prove that the prescription was issued outside of an acceptable standard of practice (limiting the focus to the prescription itself), or whether the prescriber knew that the prescription was unlawful at the time it was written (focusing on the prescriber’s intent and whether the prescriber believed in good faith that the prescription was within the standard of care).2 While we argue here that it should be the latter, the Court’s ultimate decision will establish the standard the government can use to prosecute prescribers and will affect the practice of medicine for years to come.

Race, Equality, Citizenship, and Belonging: Reading James Baldwin andWong Kim Ark

The following essays are part of a collaboration between theJournal of Law and ReligionandPolitical Theology.Editors from both journals selected the two texts interrogated and interpreted here—James Baldwin’s essay “Equal in Paris” and the United States Supreme Court decision in the caseUnited States v. Wong Kim Ark(1898). The purpose of the collaboration was twofold. The first purpose was to see what new interpretations arise when scholars working primarily in law read the essay by Baldwin, who has been a touchstone in much contemporary Black theology, and when scholars working in religious studies read the legal decision inWong Kim Ark, a case in which the Supreme Court extended citizenship to the child of Chinese immigrants who conceived and bore him on American soil. The second purpose was to divide publication between the journals, with each journal publishing three of the six essays, with a view to building bridges between readers of each journal over a topic at the intersection of both law and political theology.

Local Media Coverage of Candidates for State Supreme Courts

What explains media coverage of state supreme court candidates? While the scholarly literature thoroughly examines media coverage of judicial decision-making, little is known about how members of the press cover candidates for the bench. This is an important omission as the campaign trail is one of the few places where voters and candidates directly interact with one another. In this research, I present new data regarding local press coverage of candidates for state supreme courts between 2002 and 2014. I find that, similar to coverage of judicial opinions, members of the press are largely drawn to conflict and spectacle. Specifically, journalists are more likely to cover expensive, churlish, and competitive campaigns for the bench. Nevertheless, I also find that the predicted rate of candidate coverage has fallen dramatically between 2002 and 2014 (approximately 62 percent).

Back to the Future Interest: The Origin and Questionable Legal Basis of the Use of Crummey Withdrawal Powers to Obtain the Federal Gift Tax Annual Exclusion

Although the future of the estate tax is uncertain, the federal gift tax and the federal gift tax annual exclusion survived recent Congressional action. In fact, recent changes to the Internal Revenue Code may increase the use of the annual exclusion in the short term.The federal gift tax annual exclusion allows donors to give $11,000 per year to an unlimited number of donees free of gift tax. The exclusion is unavailable for gifts of “future interests,” including most gifts in trust. In order to make a gift in trust that fully qualifies for the annual exclusion, donees are frequently given temporary powers – called “Crummey powers” – to withdraw the gift to the trust.Crummey powers are based on unjustifiable analogies to the federal income tax. In fact, Crummey powers are inconsistent with the language of the Internal Revenue Code, the Treasury Department’s regulations and United States Supreme Court precedent concerning the annual exclusion. Moreover, Crummey powers defeat the legislative intent behind the annual exclusion.The law has become muddled in this area due to missteps by the IRS. Despite the potential for abuse, the IRS has never contested the fundamental validity of Crummey powers. Instead, the IRS accepted the basic premise behind Crummey powers and litigated side issues. The IRS’s agreement on the basic premises, however, precluded its success on the side issues.The Treasury Department or Congress may effect an abrogation of Crummey powers. In the current political climate, however, they are unlikely to do so. Unless they do, the IRS will likely be forced to continue to accept the sham it sanctioned when it acquiesced in Crummey v. Commissioner.

How Ohio's proposed abortion bans would impact travel distance to access abortion care.

ContextSince March 2021, the Ohio legislature has been actively considering laws that would ban abortion if the United States Supreme Court overturns the Roe v. Wade decision that legalized abortion nationally in 1973.MethodsWe used a national database of publicly advertised abortion facilities to calculate driving distances for Ohioans before and after the activation of proposed abortion bans. Using a legal analysis of abortion laws following the overturn of Roe, we determined which states surrounding Ohio would continue providing abortion care. We calculated distances from each Ohio county centroid to the nearest open abortion facility in three scenarios: (1) as of February 2022, (2) the best‐case post‐Roe scenario (two of the five surrounding states continue to offer abortion care), and (3) worst‐case post‐Roe scenario (no surrounding states continue to offer abortion care). We calculated population‐weighted distances using county‐level data about women aged 15–44 years from the 2019 American Community Survey.ResultsIn February 2022, all Ohio county centroids were at most 99 miles from an abortion facility (median = 50 miles). The best‐case post‐Roe scenario shows 62 of Ohio's 88 counties to be 115–279 miles away from the nearest facility (median = 146). The worst‐case shows 85 counties to be 191–339 miles away from the nearest facility (median = 264). The current average population‐weighted driving distance from county centroid to the nearest facility is 26 miles; the post‐Roe scenarios would increase this to 157 miles (best‐case) or 269 miles (worst‐case).ConclusionsOhio's proposed abortion bans would substantially increase travel distances to abortion care, impacting over 2.2 million reproductive‐aged Ohioans.

The “Big Five” Decisions of the United States Supreme Court from June 2022: Ten Days of Consequences for the United States Supreme Court and the American People

This study on the United States Supreme Court will feature five opinions handed down by the Court relating to abortion, Second Amendment rights, two cases relating to religious liberty, and the confluence of “climate change” and administrative law that the Court decided before it adjourned for its 2022 summer recess. The paper will explain what the Supreme Court decided and then include critical passages from the holdings of the actual opinions handed down by the Court by quoting from the Supreme Court syllabus or summary, as well as pertinent portions of any majority or dissenting opinions.

Work Product Immunity for Attorney-Created Tax Accrual Workpapers?: The Aftermath of United States v. Textron

United States v. Textron, Inc. has been a high-profile case involving the applicability of work product immunity to attorney-prepared documents known as "tax accrual workpapers." The Textron decision is worthy of careful analysis because it is the first decision at the Court of Appeals level to consider work product immunity for attorney-created tax accrual workpapers. The U.S. District Court ruled that work product immunity applied to the tax accrual workpapers, the First Circuit Court of Appeals ruled that work product immunity did not apply, and on May 24, 2010, the United States Supreme Court denied the certiorari petition in the case. Accordingly, the Textron decision is final, and it is appropriate to review the scope of work product immunity as it may apply to tax accrual workpapers. The denial of certiorari means that the lower federal courts must decide, without the benefit of Supreme Court guidance in Textron, whether work product immunity applies to attorney- prepared tax accrual workpapers.I conclude that attorney-prepared tax accrual workpapers technically do not and, as a matter of policy, should not qualify for protection as work product because of (1) the significant role of tax accrual workpapers in financial accounting and federal income tax reporting and (2) the specific statutory authority of section 7602 empowering the Internal Revenue Service (IRS) to collect information from taxpayers. I propose that courts embrace a doctrine of "tax exceptionalism" for purposes of work product immunity cases, and this doctrine acknowledges the unique public policy considerations that support effective tax administration. Permitting discovery of tax accrual workpapers raises significant fairness issues, but discovery of these workpapers is consistent with extant caselaw regarding work product immunity as well as with the purposes underlying work product immunity.

Vigilantism, Texas, Privacy and Liberty: Waiting Once Again for The Supreme Court to Speak

Is there a constitutionally protected right to privacy? This is not an article in support of or in opposition to abortion rights. In fact, it is not an article about abortion at all. Rather, in light of two actions of the United States Supreme Court that took place in 2021, the authors have undertaken in Part I of this study a review of Supreme Court precedents, statutory materials, and other state and federal legislative actions relating to the issues of privacy and liberty. The article is written in the context of the debate over reproductive rights and examines the rationale used by courts to make critical distinctions in cases where not only reproductive rights were at issue, but also where questions were raised relating to the existence of a broader constitutionally protected right to privacy which we will consider in other discreet areas in Part II of the study.

Appalachian Basin–Pennsylvania, West Virginia, and Ohio–Oil and Gas Law Developments

This article addresses oil and gas case law developments that have occurred within the Appalachian Basin’s primary oil and gas producing states of Pennsylvania, West Virginia, and Ohio during 2021 by reviewing opinions issued by the highest appellate courts within each of these three states. The oil and gas law topics addressed by these state supreme courts during 2021 have ranged from those occurring upstream, such as leasing, to those occurring downstream, such as approval of a utility rate increase for the extension of a natural gas pipeline.

High School Bands in Jackson, Mississippi, Before and After Integration

Although the United States Supreme Court declared segregation in education under law unconstitutional in the landmark Brown v. Board of Education decision in 1954, the public high schools in Jackson, Mississippi, would remain segregated until 1970. The present study examines the effects of this social climate on the high school band programs in Jackson, Mississippi, during segregation and integration. Information about the band programs was investigated using in-person and telephone interviews, as well as yearbooks, books, and other print media. The implications of this study indicate that segregation had a negative effect on the segregated all-African American high school band programs in Jackson, Mississippi. This study also shows that, initially, integration had a positive effect on the previously all-white high schools in Jackson and that integration immediately had a negative impact on the previously all-African American high schools.

Alabama, Florida, Georgia, and Tennessee

There were no decisions by federal or state courts in Alabama, Florida, Georgia, or Tennessee between fall 2020 and fall 2021 di- rectly relevant to oil and gas companies or operations. However, there were several decisions that may nonetheless be of interest to the in- dustry, including two opinions by the United States Supreme Court in water-rights cases. We discuss these opinions below.

Human Rights and Wrongs: The Dark Canon of the United States Supreme Court in Environmental Law

This is the second in a series of critiques of the Supreme Court's jurisprudence on environmental law. The first series described three cases notable for their manipulation of facts and law and ill-concealed bias against environmental plaintiffs. One crippled the National Environmental Policy Act, the second crippled citizen standing to sue, and the third pivoted to undermine the safety of nuclear power plants.The instant trio of cases add yet another troubling element to the canon. What distinguishes them, beyond the usual sleight-of-hand, is their failure to demonstrate the slightest understanding or concern for the plight of some of the most disadvantaged people on the planet. All of them brown.The first case discussed, Northwest Indian Cemetery, denied First Amendment protection from the destruction of an entire Native American culture. The second case, Sandoval, effectively destroyed Title VI of the Federal Civil Rights Act. The third case, Kiobel, slipped the bounds of decency altogether by declaring corporations immune from actions under the Alien Tort Claims Act, expressly designed to provide damages for acts viewed by the entire world as beyond the pale.

Judging Inequality: State Supreme Courts and the Inequality Crisis

Political Science QuarterlyEarly View Original Article Judging Inequality: State Supreme Courts and the Inequality Crisis JAMES L. GIBSON, JAMES L. GIBSONSearch for more papers by this authorMICHAEL J. NELSON, MICHAEL J. NELSONSearch for more papers by this author JAMES L. GIBSON, JAMES L. GIBSONSearch for more papers by this authorMICHAEL J. NELSON, MICHAEL J. NELSONSearch for more papers by this author First published: 29 March 2022 https://doi.org/10.1002/polq.13318Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Early ViewOnline Version of Record before inclusion in an issue RelatedInformation

7 United States Supreme Court, Nestle USA, Inc. v. Doe et al., 593 U.S. ___ (2021), 17 June 2021

7 United States Supreme Court, Nestle USA, Inc. v. Doe et al., 593 U.S. ___ (2021), 17 June 2021