Supreme Court Justices Research Articles

Employers and the Privatization of Public Health

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism toward government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views. Employers may be highly motivated to safeguard their workers’ health. Without healthy staff members, they cannot keep their doors open, and without visible pandemic protections, they cannot reassure concerned customers that their premises are safe. During COVID-19, many employers established mask, testing, social distancing, and vaccine rules even in the absence of government mandates. Employers’ profit motives do not diminish their contributions to public health. Their contributions can significantly reduce health disparities by protecting vulnerable individuals who otherwise face health care access barriers and economic challenges that exacerbate their risks. This Article posits that in future public health emergencies, the United States will increasingly rely on those with a financial stake in individuals’ health. Federal and state government authorities should therefore embrace employers as public health partners. To that end, this Article develops recommendations concerning guidance and funding support that should be available to assist employers in their emergency response efforts.

THE TRAGEDY OF FELIX FRANKFURTER: FROM CIVIL LIBERTIES AND CIVIL RIGHTS ACTIVIST TO REACTIONARY JUSTICE

This article reconsiders the life and record of Supreme Court Justice Felix Frankfurter. Frankfurter was smart, hardworking, and talented, serving as a great activist lawyer and important law professor in his early career. When nominated to the court, there were high hopes he would follow Holmes and Brandeis in leading a progressive Court that would protect civil liberties and minority rights. However, it was not to be. On the Court Frankfurter became increasingly conservative and ultimately reactionary. In his opinions, he upheld persecution and discrimination of religious and racial minorities, occasionally hindered racial justice and civil liberties efforts, and opposed due process in criminal trials and fairness in elections. Arrogant and dismissive, he constantly fought with his brethren, alienating almost all of them. In the end Frankfurter was far too often on the wrong side of history, liberty and the law, and even legal ethics. The tragedy of Frankfurter is that he abandoned the constitutional rights and protections that he supported from his graduation from law school until he donned his robes. He could have been a great justice. Sadly, he was not.

Trump’s Supreme Court Justices Must Kick Him Off the Ballot

The 1994 Reform of Tax Sharing System (TSS) of China changed the current Chinese society a great deal. This paper starts with issues revealed from present news, by discussing the causes and effects of the Reform of Tax Sharing System, and therefore takes relatives issues such as the Fiscal Responsibility System (FRS),the Land Finance(LF),the Local Debt(LD) into consideration. This paper intends to analyze such issues in the perspective of legal system and eventually summarize them using Lewis Coser’s Combination of Structural Functionalism and Social Conflict Theory, i.e. the theory emphasized in The Function of Social Conflict. The history showed in this paper, concerns the evolution of Chinese legal system including the Chinese Constitution. Meanwhile, the theory combined Structural Functionalism and Social Conflict Theory offers quite some explanation power when analyzing issues above. Besides, this paper is more like a report of syntopic reading about a series of articles and books concerning TSS, FRS, LF and LD.

The First Interpreters: How Early Supreme Court Justices Defined the Court's Role Under the Constitution

The First Interpreters: How Early Supreme Court Justices Defined the Court's Role Under the Constitution

The Power of Wondering What Could Be School

Early in the 2023–2024 school year, Mr. Medeiros and a handful of his Kaua’i High School Future Teachers of Hawai’i club members took a two-day huaka’i (trip) to Oahu. This service-learning trip was part of the learning progression for the club, which is focused on student advocacy and social justice. With the help of Josh Reppun, retired Hawai’i State Supreme Court Justice Mike Wilson, the people at What School Could Be, and other amazing educators, the students began their huaka’i by gathering together to think and talk about the purpose of education/school. Ostensibly, they were traveling to Oahu to learn from others, but, really, the adults were there to learn how to keep pushing the boundaries of the idea of “school.”

Breaking the bank: Personal financial interests of Supreme Court justices and institutional legitimacy

AbstractObjectiveWe study the relationship between lack of recusals by Supreme Court justices in cases where they have a direct or indirect personal financial interest and diffuse support for the Court. Justices should recuse when they have a personal stake in a case; otherwise, decisions are perceived as biased and violating the rule of law. Despite popular interest in this behavior and significant consequences for societal acquiescence, there are no empirical studies assessing this relationship.MethodsWe construct a survey experiment with four conditions and a control. Each condition displays an article discussing the failure of different justices to recuse from a case involving a direct (stocks owned in the litigant party) or an indirect (stocks owned in the industry of the litigant party) personal financial interest.ResultsWe find that not recusing from a case where direct personal financial interests exist negatively affects institutional legitimacy, but indirect conflicts of interest show no effect on diffuse support. Additionally, ideological congruence between the public and justice involved in the scenario not only does not mitigate negative effects but rather enhances harm toward diffuse support.ConclusionNon‐recusals in cases where a justice has a direct financial conflict of interest negatively affect Court legitimacy.

Paradigm for the Recruitment of Supreme Court Judges by the House of Representatives is Part of Constitutional Political Intervention

The pattern of recruitment of Supreme Court justices which is constitutionally regulated in Article 24A paragraph (3) requires that the nomination of Supreme Court judges is carried out through a nomination mechanism that has been carried out by the Judicial Commission to be approved by the DPR and determined by the President as part of the check and balance concept. However, in such a mechanism it actually confronts a paradigm in which the concept of checks and balances that is presented actually intersects with the concept of independence from the judicial power itself. So by using the literature study or library research method, a conception is obtained that so far the concept of checks and balances has not been placed in the right realm. So that it often creates a problem that intersects one authority with another, including in the realm of the mechanism for the recruitment of Supreme Court justices. So it is important to understand how the conception of Article 24A paragraph (3) is the legal basis for the pattern of recruitment of Supreme Court justices. As well as occupying the concept of the independence of the Judicial Commission in an effort to create accountable supreme justices.

Balancing Bioethics and Legal Frontiers: А Case Study of Brazil’s Supreme Federal Court Decision on Embryonic Stem Cell Research

Background. The present work focuses on the need to protect prenatal life, which is intricately entwined with delineating the precise biological and legal juncture marking an embryo’s transition into personhood. Drawing upon bioethical insights from domestic frameworks and international jurisprudence, we compare diverse perspectives on the moral and legal standing of the embryo, including its right to life, and invoking legal principles in the context of cellular and regenerative medicine.Aim. The goal of this article is to investigate the various biosafety policy approaches governing embryonic stem cell research, ranging from outright prohibition to authorization solely for therapeutic or scientific ends. Through our analysis, we focus on the unique national context of Brazil to scrutinize the underlying rationale behind a specific legal challenge questioning the constitutionality of the BiosafetyLaw. This law, which permits the utilization of human embryonic cells for research and therapeutic purposes, raises concerns about potential infringement upon the inviolability of the right to life.Methodology. The research is based on deductive reasoning alongside formal-legal methodologies, including textual interpretation and comparative-legal analysis. The research process involved documentary, bibliographic, and virtual analytical inquiries utilizing a variety of resources such as legislative texts, monographs, academic articles, databases, and online libraries. Results. Through our examination in a distinct national context, we delineate the theoretical-philosophical and normative-ethical foundations underpinning the stances of Brazilian Supreme Court justices concerning the utilization of embryonic stem cells. Their arguments predominantly invoked significant constitutional liberties such as freedom of family planning, scientific research, and academic pursuits, intertwined with considerations of human dignity and the sanctity of life. Additionally, some justices cautioned against the potential hazards inherent in genetic manipulation.Implications. The legal and ethical ramifications of Brazil’s approach to biosafety legislation concerning embryo rights invoke the necessity for conducting neutral, unfettered scientific inquiry and regenerative therapies according to specific operational parameters. These include safeguarding the integrity of genetic inheritance, preemptive evaluation of potential risks and benefits (adherence to the precautionary principle), and ensuring informed consent for treatments. A significant hurdle consists in the need to establish robust mechanisms for overseeing research involving human embryos within the domains of biomedicine and regenerative cell therapy

How to Sell a Poison: The Rise, Fall, and Toxic Return of DDT

How to Sell a Poison: The Rise, Fall, and Toxic Return of DDT

How to Sell a Poison: The Rise, Fall, and Toxic Return of DDT

How to Sell a Poison: The Rise, Fall, and Toxic Return of DDT

A Matter of Opinion? How Unexpected Opinion Authors Influence Support for Supreme Court Decisions

AbstractExamples abound of Supreme Court justices writing opinions because their ideological preferences or identity characteristics run counter to case outcomes, like when devoted Methodist and Nixon appointee Harry Blackmun wrote the opinion codifying abortion rights in Roe v. Wade (1973). These stories suggest that in some controversial cases, the justices ask such incongruent justices to explain decisions because they believe those justices can underscore an opinion’s legal soundness and increase support for it. Does it work? We asked participants in two survey experiments to read about a pro-abortion or pro-death penalty ruling written by justices of differing ideologies and genders, and then we asked them to respond to the ruling. Their responses indicate that deploying identity-incongruent justices can influence responses, but not the way the justices expect. We find that incongruent opinion writers can reduce partisan differences in support for a Court decision but do not broadly increase public.

‘This happened once before’: sexual violence and US Supreme Court nominees

Supreme Court Justices Thomas, in 1991, and Kavanaugh, in 2018, were accused of sexual violence by Anita Hill and Christine Ford, respectively, and were both later confirmed in their positions. To better understand these outcomes and the political context in which they occurred, we analysed headlines from US newspapers using a directed content analysis. We drew on Schneider and Ingram’s established social construction of target populations theory to examine how newspaper headlines characterised the relative power and valence of political figures in each year. Results identified both consistencies and shifts in social constructions across time. In 2018, there were more negative characterisations of the nominee, accuser and the President, and more negative and less powerful characterisations of the public. In both years, the Senate and political parties were characterised negatively and powerfully. These findings provide evidence that intransience in political institutions, increased negative partisanship, and weakened public power may illuminate the parallel outcomes despite changed social mores, such as the advent of the #MeToo and #TimesUp movements.

Toward Mainstreaming of Feminist (Counter)Publics? The Networked Structure of Feminist Activism on Twitter

This study investigates the roles of feminist actors in the Twitter discourse about sexualized violence that came up during the confirmation of Brett Kavanaugh as a U.S. Supreme Court justice in October 2018. We theorize the discourse from the perspective of feminist counterpublics because it helps in understanding the extant power relations in public debate that are also manifest in digital networks. In this empirical study, we reconstruct the Twitter network discourse about the judge’s confirmation and examine the role of feminist actors and their counterpublic characteristics. Our findings indicate that the discourse network was highly polarized, but feminist voices were well integrated within the (progressive) center. Although feminists acted in the role of challengers seeking the attention of established political actors and news media, they did not remain isolated. Instead, they positioned themselves in the center of the progressive network and therefore influenced the general public discourse.

Stalled Life with Rhetoric: Notorious RBG and the Limits of Feminist Imagery

New materialist methods often frame networked images as dynamic, bouncing across the network in contiguous and proximate iterations. Positing that a networked life of an image stalls, this article seeks to understand when and how stasis occurs to articulate what it indicates regarding political messaging of feminism and feminist action. Such an approach involves attuning to serial collectives: spaces that signal regulatory coherence despite variation, where the dynamic networked image coalesces. By tracing images of the late Supreme Court justice Ruth Bader Ginsburg, I demonstrate how the features of her image in circulation stabilize political meaning even as they move through a dynamic networked ecology. This stasis reveals limits to the discursive power of feminist imagery, eliding potential for productive feminist action within an economy of feminist activism. Further, I argue that scholars investigating feminist imagery must account for the consequences of selling, buying, and performing—commodifying—feminism.

Confucian Family Ideal and Same-Sex Marriage: A Feminist Confucian Perspective

AbstractThis article engages the views of PRC Confucian scholars who responded to the United States Supreme Court Justice Anthony Kennedy's citing of Confucius in his majority opinion on same-sex marriage in 2015. It questions their separation of tolerance for homosexuality from legalization of same-sex marriage and argue that tolerance is not enough. The arguments in the mainland Confucian discourse about same-sex marriage highlights the historical and persistent entanglement of Confucianism with patriarchy. Instead of reviving traditional patriarchal society, further entrenching and increasing gender inequality, contemporary Confucianism could shape its own unique modern society that aspires to (and hopefully one day achieving) gender equality together with sexual inclusivity by deconstructing the patriarchal Confucian family and reconstructing a different Confucian family ideal. Accepting same-sex marriage would lend weight to the latter, and there are Confucian reasons for legalizing same-sex marriage and recognizing its ethical value.

Are You Talking to Me? How Ideological and Gender Characteristics Moderate the Effect of Legitimizing Rhetoric on SCOTUS Legitimacy

Possessing neither purse nor sword, the unelected US Supreme Court relies on sustained public confidence in its institutional credibility to give force to its decisions. Previous research shows that Supreme Court justices are increasingly making public appearances to engage in a course of institutional maintenance to preserve its legitimacy. Amid a potential legitimacy crisis, justices seek to shore up the Court’s public support in these public appearances by emphasizing the apolitical nature of the Court and its decision making. The question for a growing body of literature is whether these attempts at institutional maintenance do, in fact, lead to higher support for the Court. Using an original survey experiment where we manipulate the identity of the justice giving legitimizing rhetoric, we find that respondents’ ideological preferences and female respondents’ level of gender identity do impact the effectiveness of such rhetoric. These results build on previous work by demonstrating the importance of justice identity in conditioning how different ideologues respond to the Court’s elite signals.

Brandeis in Brussels? Bureaucratic discretion, social learning, and the development of regulated competition in the European Union

AbstractNeo‐Brandeisian legal scholars have recently revived the ideas of Supreme Court Justice Louis Brandeis, who championed state regulation that preserved market competition and economic liberty in the face of concentrated private power. Yet ultimately and perhaps paradoxically, it has been Europe and not the United States that has proved more hospitable to accommodating key features of the Brandeisian approach. We explain this outcome by tracing the evolution of EU competition law to gain insight into the social learning processes through which such regimes change over time. We argue that the EU's administrative system, which provides the European Commission with significant bureaucratic discretion, has facilitated processes of ongoing deliberative adjustment to policy and practice, which over time has resulted in a system of “regulated competition” with striking similarities to the Brandeisian vision. The analysis highlights how administrative law institutions condition how regulatory regimes evolve in response to acquired experience and knowledge.

Perbedaan Pandangan Terhadap Pembatasan Hak Dipilih Antara Putusan Mahkamah Konstitusi Dengan Putusan Mahkamah Agung

In general elections, the public has the right, namely, not to vote, and the right to be elected. The right to be elected is the right of citizens to be elected as members of deliberative bodies or representatives of the people in a general election. Article 240 paragraph (1) letter g of the General Election Law regulates restrictions on the right to vote for former corruption convicts. Regarding the norms in this article, the Constitutional Court and the Supreme Court have different views. This is formulated in the Constitutional Court Decision Number 87/PUU-XX/2022 and the Supreme Court Decision Number 46P/HUM/2018. This article analyzes the views of Constitutional Justices and Supreme Court Justices regarding the norms in article 240, paragraph (1) letter g. The purpose of this article is to find out how voting rights are limited for former corruption convicts. This article uses a normative juridical research method. The research results found that first, restrictions on the right to vote for former convicts may be carried out in the interests of ensuring the freedom of disadvantaged groups. Second, in deciding a decision, the judge is obliged to explore, follow and understand the legal values ​​and sense of justice that exist in society as well as pay attention to the juridical aspect.

Catholic, woman, mother, young: a pioneer in the Supreme Court

This short article is part of a larger project titled The Catholic Supreme Court Justices, which will include an intellectual biography of each and every Catholic Justice in the history of the Supreme Court of the United States. This segment is on Amy Coney Barrett. It first highlights her unusual choices in educational matters; next, it focuses on her family and her work. Regarding the latter, it analyzes both her short stint in the bench of the federal Court of Appeals and her even shorter one (at the time this contribution was penned) at the Supreme Court. It concludes that to understand correctly the relevance of the Catholicity of this Justice of the Supreme Court, one needs to understand the teachings of the Catholic Church on separation of Church and State (and of religion and law).

Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over twenty-six years (1995–2019), comprising nearly one million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.