Supreme Court Justices Research Articles

Compromising on compromise rules

AbstractWe propose three mechanisms to reach compromise between two opposing parties. They are based on the use of Rules of k Names, whereby one of the parties proposes a shortlist and the other chooses from it. Methods of this class are used in practice to appoint Supreme Court justices and have been recently proposed for arbitration selection processes. Those we suggest are flexible and allow the parties to participate in the endogenous determination of the role of proposer and the shortlist size. They involve few stages, implement the Unanimity Compromise Set, and are robust to the strategic inclusion of candidates.

Statutory Interpretation after PRCBC and O v SSHD: Should we ‘Waste the Court’s Time a Great Deal Less in Looking at Background Material’?

The issue of statutory interpretation, and the assistance to be gleaned in that process from pre-legislative and Parliamentary materials, has been on the minds of various Supreme Court justices in recent times. The recent judgment in Project for the Registration of Children as British Citizens and O contains important warnings for practitioners wishing to rely on these materials but, furthermore, highlights what appears to be a sustained retreat from a more purposive, contextual style of interpretation into a more strictly literal approach. Such a trend would be constitutionally concerning, particularly at this time of legislative overhaul.

Changing the Selection Mechanism of US Supreme Court Justices: A Reply to Waldron’s 'Denouncing Dobbs and Opposing Judicial Review'

Changing the Selection Mechanism of US Supreme Court Justices: A Reply to Waldron’s 'Denouncing Dobbs and Opposing Judicial Review'

From Four Horsemen to the Rule of Six: The Deconstruction of Judicial Deference

In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse. History offers parallels. During the New Deal, a core group of Supreme Court justices known as the “Four Horsemen” often struck down agency actions or legislative acts, apparently based upon their views of economic policy. But during the “Switch in Time that Saved Nine” that followed, a changing majority of the Court exercised judicial restraint, upholding policy judgments by Congress and the executive agencies. The clock seemingly rewound in 2022, as a new conservative majority of justices declared statutes insufficient and struck down agency actions, embracing a logic akin to their New Deal predecessors. By deconstructing judicial deference, these justices can now impose the Rule of Six and selectively choose the applicable interpretive doctrine to achieve their personally preferred policy outcomes. The fundamental question of American governance is “Who decides?”. In 2022, the unelected Supreme Court expanded its power over both unelected agency experts and elected officials. Inevitably, history will echo, and debates over court reforms will remerge. But for now, in our extraordinary era of emergencies, epidemics, and a climate crisis, six robed riders on horseback have appeared.

What Should Be Done About Michigan's Terrible, Horrible, No-Good, Very Bad Way of Selecting Supreme Court Justices?

What Should Be Done About Michigan's Terrible, Horrible, No-Good, Very Bad Way of Selecting Supreme Court Justices?

The Life of Ruth Bader Ginsberg: Biography of an Educator

Now in her eighties, U.S. Supreme Court Justice Ruth Bader Ginsburg has lived a remarkable life. Justice Ginsburg has had an enormous impact on the way United States law respects gender equality, transformed the U.S. Constitution, and lead broad social transformation in America (Dodson, 2015). And while all of this is so, before she completed any of this, Justice Ginsburg was known as Professor Ginsburg, spending seventeen years teaching law at two highly respected institutions of higher education. During this time, she created and taught revolutionary courses on Women and the Law, co-write the first-ever published casebook on sex-based discrimination, and contributed broadly to law scholarship and advocacy (Kay, 2015). Though the time Ginsburg spent working in higher education goes largely unexamined in comparison to her time spent in judicial offices, her life is forever entwined with education, having been a way-making female law student, a pioneering professor and real-world advocate, and an adjudicator who changed the face of education in the United States. This manuscript will report Ruth Bader Ginsburg’s story and give perspective beyond her contributions as judge, focusing on her path to and work as educator.

Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints

Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints

Does the Before Influence the After? Career Paths, Nominations, and Votes of the STF Justices

Do previous trajectories of Federal Supreme Court justices influence their votes in court? Despite recent advances in research on judicial behavior, questions remain about the factors influencing the decisions of STF justices. Building a new typology of these justices' career paths, this article tests the hypothesis that professional characteristics influenced the judicial behavior of the justices judging the Ação Penal 470, a criminal case known as Mensalão . Our theory suggests that STF nominees bring to the court law interpretations and worldviews that were not only developed in their professional activities but also affected by the conditions of stability or political dependence that marked their career paths. Legal expertise means of professional rise, and types of interests justices were used to defending before joining the court shape the decision-making of the justices in the STF. Based on logistical regressions, we conclude that the votes to convict and acquit in the AP 470 trial are associated with these characteristics. Our findings carry implications for theories on judicial behavior and the process of appointing justices to the STF.

Improving the Senate Judiciary Committee's Role in the Confirmation of Supreme Court Justices

Abstract The confirmation hearings of U.S. Supreme Court justices held by the Senate Judiciary Committee have been the subject of substantial criticism. Yet, critics typically fail to outline exactly what they want the hearings to accomplish. This article critically examines the purpose and history of confirmation hearings in an effort to shine light on the value that the hearings can add to the Supreme Court selection process. It also discusses three changes that can be made to help the confirmation hearings achieve their promise as an important venue for vetting future members of the Supreme Court and reaching a shared understanding of constitutional meanings among the American public.

Indonesia's Supreme Court Judgment on Religious Clothing: Failing Women and Girls in Public Schools?

Abstract In May 2021, the Indonesian Supreme Court delivered a unanimous judgment that struck down a joint ministerial decree prohibiting local governments and public schools from imposing religious clothing on female students, teachers, and staff.1 The joint ministerial decree was issued following public criticisms and media coverage of the religious dress code enforced in public schools in Padang, West Sumatra, Indonesia. The Court held that such a decree conflicted with various provisions in the national legislations, including laws on regional government,2 child protection,3 law-making,4 and the national education system.5 Accordingly, the Supreme Court justices presiding over the case, Yulius, Irfan Fachruddin, and Is Sudaryono, instructed the Minister of Education and Culture, the Minister of House Affairs, and the Minister of Religious Affairs to rescind the joint decree. This comment explores and critically examines the Court's reasoning of the decision that has, consequently, legitimized local governments and public schools’ policy to enforce mandatory hijab on Muslim and non-Muslim female teachers, staff, and students at public schools across the country. It argues that the Court's ruling, in this case, is highly unreasoned and questionable, lacking in details in some respects, and failing to address the encroachment of women and girls' rights that should have been given appropriate consideration.

Supreme Court Confirmation of Amy Coney Barrett: A “Blatant Act of Bad Faith”?

In the Senate proceedings on Amy Coney Barrett’s nomination to the Supreme Court, Senate Democrats (and at least two Republicans) claimed that a confirmation of Supreme Court Justice in a presidential election year would be a break with Senate tradition—a violation of the mythologized “Thurmond Rule.” Named for Senator Strom Thurmond, the scope of the rule and its origins are murky. The rule likely originated in Thurmond’s campaign against President Jimmy Carter’s judicial nominees of 1980, when Thurmond served as ranking minority member of the Senate Judiciary Committee. This article discusses the Supreme Court confirmation process, Barrett’s background and nomination, the speed with which she was confirmed to the nation’s highest Court, and the conclusion of the nonpartisan Congressional Research Service on whether the Thurmond Rule truly exists. Senate Minority Leader Charles Schumer declared the Barrett confirmation a “blatant act of bad faith” by the Republican majority in the Senate, which in 2016 invoked the Thurmond Rule to defer Senate action on President Barack Obama’s nomination of Merrick Garland to the Supreme Court. As detailed by the Congressional Research Service, the Thurmond Rule has been invoked inconsistently by both parties at politically convenient times.

Women and the Politics of Incivility and Discrimination: Introduction

Women and the Politics of Incivility and Discrimination: Introduction

Religious Exemptions

Religious Exemptions

Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8

Abstract Late twentieth-century tort theory was dominated by scholars who regarded tort law as primarily a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. Tort theorists today better appreciate that this approach obscures crucial respects in which tort law is private law–law that empowers persons who have been wronged to redress the wrongs done to them. But in practice there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms on which both the ‘right’ and the ‘left’ critique modern mass tort litigation. More troublingly, the problem extends beyond the field of torts. Indeed, we contend that the lawyerly loss of feel for distinctions between public law and private law explains the inability of the United States Supreme Court Justices, in Whole Woman’s Health v. Jackson, to capture why S.B. 8–Texas’s radical anti-abortion statute–really is a private attorney general statute and why, as such, it should be subject to preenforcement constitutional review.

The Precipitous Decline in Reasoning and Other Key Abilities with Age and Its Implications for Federal Judges.

U. S. Supreme Court justices and other federal judges are, effectively, appointed for life, with no built-in check on their cognitive functioning as they approach old age. There is about a century of research on aging and intelligence that shows the vulnerability of processing speed, fluid reasoning, visual-spatial processing, and working memory to normal aging for men and women at all levels of education; even the maintained ability of crystallized knowledge declines in old age. The vulnerable abilities impact a person’s decision-making and problem solving; crystallized knowledge, by contrast, measures a person’s general knowledge. The aging-IQ data provide a rationale for assessing the key cognitive abilities of anyone who is appointed to the federal judiciary. Theories of multiple cognitive abilities and processes, most notably the Cattell-Horn-Carroll (CHC) model, provide a well-researched blueprint for interpreting the plethora of findings from studies of IQ and aging. Sophisticated technical advances in test construction, especially in item-response theory and computerized-adaptive testing, allow for the development of reliable and valid theory-based tests of cognitive functioning. Such assessments promise to be a potentially useful tool for evaluating federal judges to assess the impact of aging on their ability to perform at a level their positions deserve, perhaps to measure their competency to serve the public intelligently. It is proposed that public funding be made available to appoint a panel of experts to develop and validate an array of computerized cognitive tests to identify those justices who are at risk of cognitive impairment.

MADE IN BRAZIL: CONSPIRACY THEORY AND THE FLOW OF INFORMATION IN ONE-TO-ONE WHATSAPP CONVERSATIONS

This essay aims to shed light on the multiple and complex ways that information flows among individuals in times of intense use of digital platforms. Based on actor-network theory, it unveils largely unknown communication processes about the controversial death of the Brazilian Supreme Court Justice, Teori Zavascki in 2017 that occurred in closed conversations in which the author was part. Analyzing primary data, the essay discusses the signs of authority that allow for non-verified or fiction pieces to circulate as if they were news pieces, enabling conspiracy theories to take form. The essay defends that mutual responsibility in building the narrative with peers within a likeminded groups, and “translation” processes in which sender and information merge their characteristics to create trust are important factors to understand this phenomenon. Furthermore, in discussing news as cultural artifacts, the essay also raises reflections of the limits of framing this phenomenon as fake news, which artificially oppose what is “real” and “fake” disregarding cultural dynamics at stake.

The Best Courts Money Could Buy: Reform of the Oklahoma Judiciary, 1956–1967. By Lee Card

On January 21, 1965, Representative G. T. Blankenship electrified the Oklahoma House of Representatives by reading a confession that blew the cover off nefarious doings on the state’s highest court. Suspicions of bribery and extortion among Supreme Court justices had been circulating for years. But now, to the everlasting shame of the Oklahoma judiciary, the sleaze was in the open. Former U.S. District Judge Ralph Thompson was a launching his private practice when the scandal erupted. As he explained in a 2019 oral history interview, realizing the extent to which money could buy favorable decisions “was a dagger to the heart of us young lawyers. We committed ourselves to working for judicial reform, to establish, by constitutional amendment, a system that would help prevent that ever happening again.” Lee Card, a former Associate District Judge in Carter County, Oklahoma, holds a doctorate in history. Combining the legal acumen of a...

Strengthening the Role of the Judicial Commission Through Innovative Strategies to Balance Independence and Impartiality with Judge Accountability

The role of the Judicial Commission is very important in the power of the judiciary because one of the forms of state administration in Indonesia is helping to implement an integrity system in the exercise of judicial authority. Besides that, it is also stated in Article 24B paragraph (1) of the Constitution that the Judicial Commission is independent in nature which has the authority to propose the appointment of Supreme Court justices and has other powers in the context of maintaining and upholding the honor, dignity, and behavior of judges. The enactment of Law Number 8 of 2011 is one form of strategy in strengthening checks and balances in judicial power. as for the research method used in this study is a normative legal research method. Furthermore, it is unfortunate that the external authority granted by Law Number 22 of 2004 and has been amended by Law Number 18 of 2011 concerning the Judicial Commission, is very limited, and the limited powers were later amputated by the decision of the Constitutional Court. This limited authority belongs to the enforcement of the Code of Ethics for the Code of Conduct for Judges (KEPPH). This authority is clearly not optimal and then becomes an obstacle for the Judicial Commission in designing innovative strategies in balancing judicial power through Independence, Impartiality and Accountability in the implementation of Judges containing fair decisions.

Institutions and Arguments: Simulating the US Policy-Making Process

ABSTRACTIn US government courses, simulations have been shown to increase students’ engagement and knowledge retention. We present an original simulation that focuses on both the interactions between political institutions that contribute to policy making and the normative ideas underlying politics. By exploring a civil rights or liberties policy area, students learn about the importance of both political institutions and foundational political ideas such as liberty and equality. Students role-play members of Congress, lobbyists for a pro- or anti-natural gas pipeline group, and Supreme Court justices. Although the goal of simulations in many US government courses is to teach students about the ways that institutions shape policy, this is the first (to our knowledge) that also integrates normative reflection on the ideas behind political arguments. Assessment indicates that the simulation was effective in increasing students’ knowledge of and/or interest in American political institutions and eminent domain.

Proceed, With Caution: Unconscious Bias in Technical Assessment.

Proceed, With Caution: Unconscious Bias in Technical Assessment.