Supreme Court Research Articles

Navigating the Post-Dobbs Landscape: A Roadmap for Interstate Abortion Care

n June 2022, the Supreme Court issued an unprecedented ruling in the case of Dobbs v. Jackson, revoking the constitutional right to abortion for the first time in 50 years. To date, fourteen U.S. states have completely banned abortion. Consequently, individuals residing in states with restrictive legislation are forced to travel to neighboring states to access abortion care and other reproductive services. Extended travel time disproportionately affects individuals from communities of color, low-income patients, and rural residents, increasing the risk for maternal health complications and death. The United States holds the highest maternal mortality rate among developed nations, with 33 deaths per 100,000 births (Katella 2023). Alarmingly, 84% of these deaths are considered preventable (Katella 2023). Thus, it is imperative that state healthcare policymakers prioritize equitable access to comprehensive reproductive healthcare for all patients (Katella 2023). This care should incorporate strategies to decrease on-site patient volume, such as implementing shield laws to protect abortion providers treating out-of-state patients, enhancing telehealth services for abortion medication services, and incentivizing the establishment of physical infrastructure. For state officials in destination states, specifically the 23 governors of the non-partisan Reproductive Freedom Alliance, we recommend immediately prioritizing the establishment and anticipated enforcement of provider shield laws. To ensure widespread and equitable access to reproductive healthcare services, a more robust three-tiered approach is outlined herein, prioritizing: (1) shield laws, (2) telehealth services, and (3) physical infrastructure.

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.

On Accountability: Genetic Tools for Justice and Injustice in Criminal Proceedings

Analysis of DNA found at crime scenes has made headlines when used to solve serial killer cold cases. The DNA Identification Act of 1994 approved the Combined DNA Index System (CODIS), a database that stores profiles of 20 genetic markers for forensic investigations. The CODIS markers were specifically chosen because they were thought to be unlinkable to personally identifiable individual traits. However, advances in genetics research have expanded the traits associated with CODIS markers and increased the tools and applications of forensic genetics, thus further increasing the information investigators could gain from a suspected person’s CODIS profile. This is also true regarding private companies, who may analyze genetic information beyond that included in a CODIS profile. These scientific developments may lead to infringements on genetic privacy rights. Additionally, in 2013, the US Supreme Court held in Maryland v King that people who have been arrested, even if they are acquitted or never indicted, can be added to CODIS databases. Due to racial biases in policing and arrests, this has led to inequity in who is represented in CODIS databases, specifically an over-representation of Black individuals’ genetic profiles. Therefore, the use of genetic tools in criminal proceedings, including but not only from CODIS databases, pose risks to privacy and also serve as a seemingly race-neutral tool that, in practice, promotes racial inequity. We suggest implementation of state-specific research and oversight boards with three charges focused on CODIS and investigations using genetic tools employed by private companies: (1) study uses of genetic tools in criminal investigations; (2) study the impact of genetic tools in criminal proceedings and interface with stakeholders and the general public; and (3) use knowledge from (1) and (2) to inform policy recommendations, for which we make several initial suggestions. These boards will provide accountability to increase accuracy, privacy, and equity when using genetic tools in criminal proceedings.

The Impact of Judicial Selection Method on State Supreme Court Justice Ideology

Among political institutions in the United States, state courts are surprisingly susceptible to ideological extremism because of the non-uniform ways judges are selected. In this paper we examine the effect of selection methods on the ideological composition of state supreme courts. We theorize that methods involving partisan politics lead to more ideological justices and that, among that subset, Republican affiliated justices will be the most extreme. We test our expectations using a dataset of over 600 state supreme court selections between 1961–2011. Using a contemporary matching algorithm designed to maximize causal identification, we find support for our hypotheses. Our results speak to the consequences of federalism in court composition and offer an insight into how polarization manifests in the judiciary.

A Turning Point in the Understanding of the Legal Consequences of the Conclusion of a Preliminary Contract in Latvian Case Law

On 5 July 2023, the Supreme Court (Senate) delivered its judgement in case No. SKC-19/2023, departing from the current case law regarding the legal understanding and legal consequences of a preliminary contract, regulated in Section 1541 of the Civil Law, recognising that both the right to claim conclusion of the main contract and the right to claim compensation for losses could arise from the preliminary contract, as well as providing other important findings, inter alia, regarding the possibility for the claimant to join the claim for conclusion of the main contract in one with the claim for performance of the main contract. This article provides detailed insight into this judgement by the Senate, at the same time referring to the findings made in the current case law and legal literature, as well as pointing to possible future challenges.

Bilingual-Bicultural Education: Opportunity obscured

ABSTRACT This article reports on analysis of A Master Plan for Bilingual-Bicultural Education (MP), created after the Lau v. Nichols Supreme Court ruling. Qualitative analyses reveal authors’ intention to: 1) intertwine language and culture; 2) promote richly diverse multilingualism; and 3) systemically embed its implementation among local linguistically marginalized communities. Although the purpose of the MP was to detail a replicable model for new BBE program development across the nation, its rejection reveals the continued dominance of English-only instructional approaches, despite decades of research documenting that dual language bilingual education is the most effective instructional model for multilingual students. It also serves as an invaluable tool and roadmap for the development of future, and revision of existing, bilingual programs in ways that enhance multilingualism and improve inclusivity among minoritized language-speaking students, families, and communities.

Native Americans' support for supreme court legitimacy

ABSTRACT This paper presents a first-of-its-kind evaluation of the contributing factors to diffuse support for the U.S. Supreme Court among Native Americans. Despite the Court's profound impact on the lives of Native Americans, scholars have largely overlooked the state of diffuse support for the high court among this understudied population. Building off of the long-established judicial legitimacy literature and recent additions examining the dynamics of diffuse support, the paper uses original survey data to demonstrate that Native Americans' views toward the Court are influenced by a confluence of political, racial, and demographic concerns. These findings indicate that Native Americans' diffuse support for the Court reflects long-established understandings of the Supreme Court's legitimacy and dynamics unique to racial minorities.

Dr. Ling-Chi Wang reflections on Lau v. Nichols (1974): Bilingual education, language rights, and political activism

ABSTRACT Born in Xiamen, China in 1938, Dr. Ling-Chi Wang was the founder of Chinese for Affirmative Action, an organization focused on affirmative action in employment, representation of the Chinese in politics, voting, and language rights. He is also a Professor Emeritus of Asian American Studies at the University of California Berkeley. Ling-Chi established the Asian American Studies program at Berkeley, teaching its first course in 1969. In this paper, Ling-Chi shares his perspectives on the long history of Chinese discrimination dating back to the Chinese Exclusion Act (1882) and his years as a political activist during the 1960s to the present in San Francisco’s Chinatown. His role in community organizing was pivotal in the events leading up to this pivotal U.S. Supreme Court case. Ling Chi’s reflections on activism and linguistic justice documents his imprint on the this language rights case that has shaped US educational language policies for the last fifty years.

Ireland's abstract review and the Judicial Appointments Commission Bill case

The Irish Constitution contains a pre-enactment abstract review procedure under Article 26 whereby, before signing a Bill into law, the President can refer the Bill to the Supreme Court for a decision on its constitutionality. However, only 16 such references have ever been made. The reason Irish Presidents have been cautious about sending Bills to the Supreme Court for abstract review relates to the fact that if a Bill survives the Article 26 review process, it then acquires an immunity from further challenge under Article 34.3.3. This has sometimes been referred to as a ‘seal of constitutionality’ and the absolute nature of this blanket immunity has been criticised because it means that, in practice, the review process is rarely used. By its very nature, abstract review suffers from the defect that the provisions are being looked at in a vacuum, without the benefit of a concrete factual scenario and it may be that circumstances later arise which could result in an unconstitutionality that was not apparent when the Bill was initially examined. For this reason, Presidents will sometimes decide not to refer a Bill, even one which is considered controversial, for fear of closing off the Bill to potential future challenges; they may feel it is better for challenges to occur organically as situations arise rather than to prevent a situation where a future challenge is blocked by the immunity following the review process. As Hogan has put it, ‘[w]ithout a plaintiff, a court may fail to anticipate side-effects or unintended consequences of the law’. The paucity of occurrences means that when the procedure is invoked, there is a great interest (amongst members of the legal and academic communities at least) in the process and outcome.

Study of Supreme Court Decision Number 2580 K/Pdt/2016 on Divorce from Mixed Marriage between Indonesian and French Citizen

This research examines the legal aspects related to divorce in mixed marriages between Indonesian citizens (WNI) and foreign nationals (WNA). In the context of marriage, which is a fundamental event in human life, the issue of mixed marriage is becoming increasingly relevant as interactions between countries increase. This research focuses on analyzing the Supreme Court's decision in Decision Number 2580 K/Pdt/2016, which dealt with a divorce between an Indonesian citizen and a foreigner from France. Using normative legal methods, this research explores the legal norms governing divorce in mixed marriages and assesses the consistency of the applicable law in Indonesia. The findings show that there are legal complexities at hand, especially regarding jurisdiction and children's rights, where the Supreme Court's decision has the potential to influence the handling of similar cases in the future. This research is expected to provide insight into the challenges of the Indonesian judicial system in dealing with international divorces as well as the legal implications resulting from the decision.

A Promising Piece of the Puzzle: Human Dignity and the Role of Section 1 of the Charter

In this brief piece, I want to take up Major’s invitation to think about the “puzzle” and the “promise” of human dignity, but from a different perspective. In particular, I want to consider whether any negative implications of adopting a conception of human dignity that encompasses the elderly offender who is sentenced to die in prison can be rationalized within the broader constitutional framework. My suggestion is that the tension relating to the “young” and “elderly” offenders may be better addressed by focusing on the role of section 1 of the Charter. While that provision received negligible mention in Bissonnette, it may be used to justify sentencing elderly offenders to effectively die in prison for heinous crimes like murder because any other approach would fail to adequately deter others, who are similarly situated, from committing such crimes. As I explain, this framework falls back on early recognition by the Supreme Court that utilitarian arguments for increasing punishment are properly considered as justifications, under section 1, for imposing what are otherwise “cruel and unusual treatments or punishments.”

Changes in Availability of Later Abortion Care Before and After Dobbs v. Jackson Women's Health Organization

OBJECTIVE: To examine changes in availability of procedural abortion, especially in the second and third trimesters of pregnancy, since the U.S. Supreme Court ended federal protections for abortion in its Dobbs v. Jackson Women’s Health Organization decision in 2022. METHODS: We used the Advancing New Standards in Reproductive Health Abortion Facility Database, a national database of all publicly advertising abortion facilities, to document trends in service availability from 2021 to 2023. We calculated summary statistics to describe facility gestational limits for procedural abortion for the United States and by state, subregion, and region, and we examined the number and proportion of facilities that offer procedural abortion in the second or third trimester of pregnancy. RESULTS: From 2021 to 2023, the total number of publicly advertising facilities providing procedural abortion decreased 11.0%, from 473 to 421. Overall, one-quarter of facilities (n=115) that had been providing procedural abortion in 2021 ceased providing services, and an additional 99 decreased their gestational limits. In contrast, 73 facilities increased their gestational limits, and 64 new facilities began providing or publicly advertising procedural abortion services. The number of facilities offering procedural abortion later in pregnancy decreased (327 to 309 providing 14 weeks of gestation or later, 60 to 50 providing 24 weeks of gestation or later), although the proportion of all facilities providing these services held steady. The greatest changes were in the South, where many facilities closed. CONCLUSION: There have been substantial reductions in the number and distribution of facilities offering procedural abortion since the Dobbs decision, with critical decreases in the availability of later abortion services. Some facilities are positioning themselves to meet the needs of patients by opening new facilities, publicly advertising their services, or extending their gestational limits.

The maternal and infant health consequences of restricted access to abortion in the United States

Since the recent US Supreme Court decision in Dobbs v. Jackson Women's Health Organization, people across the country have experienced large sudden changes in their access to abortion care. In this paper, I look to the history of abortion access in the United States to inform predictions for this new future. I study the effects of targeted regulations on abortion providers (TRAP laws) on a variety of maternal and infant health outcomes, using variation in the timing of policy adoption across states and a direct measure of the distance to an abortion provider. I implement difference-in-differences techniques across outcomes from restricted-use microdata on the universe of US births. I find that TRAP laws lead to 11–16 % increased rates of hypertensive disorders of pregnancy. Additionally, I find evidence that TRAP laws widen existing disparities in adverse infant health outcomes across parental race. These results demonstrate the potentially wide-ranging health effects of restricting access to abortion.

From Gross Disproportionality to Human Dignity: Redefining Section 12 in the Context of Mandatory Minimum Sentences

In this short paper, we contend that human dignity must remain at the heart of the section 12 analysis, and should be strengthened in future cases that will be tackling the remaining mandatory minimums. In so doing, we critically examine the Supreme Court’s recent development of the section 12 framework, particularly in light of the 2023 mandatory minimum jurisprudence, with a specific emphasis on the concept of human dignity. The analysis centers on the role of reasonable hypotheticals in advancing the primary objective of section 12 — safeguarding human dignity — by scrutinizing the three pivotal components of the gross disproportionality analysis. We suggest that the section 12 analysis focuses on proportionality and human dignity rather than the current “gross disproportionality” standard in assessing what constitutes cruel and unusual punishment. These suggestions are underpinned by an approach that considers proportionality a principle rooted in human dignity. Nevertheless, proportionality has its limits and therefore section 12 should be complemented by an approach that takes into account prison conditions and the effects of imprisonment on marginalized groups, which are rooted in inequalities. Finally, the analysis questions the third component of the gross disproportionality analysis, which calls for deference to the legislature in order to prioritize objectives that instrumentalize the individual and are contrary to human dignity. These objectives are problematic, we suggest, and best addressed within section 1 of the Charter.

The Lau decision and the San Diego National Origin Desegregation Assistance Center

ABSTRACT This article documents the San Diego National Origin Desegregation Assistance Center (NODAC), one of the nine national centers established by the U.S. Office of Education to provide technical assistance to school districts cited under Section 601 of Title VI, from the Office for Civil Rights, to meet the Lau compliance requirement based on the Lau v. Nichols Supreme Court decision (Title VI. 42 U. S. C). Additionally, it provides insights into the ideological and political challenges and triumphs of implementing federal mandates for educational equity. The focus of this article is on the San Diego NODAC which provided technical assistance to the Southern California area consisting of 10 counties with the highest concentration of national origin students in the nation. This evaluation case study documents the work, process, and impact, of the San Diego NODAC and reflects on the enforcement of the Lau Task Force Remedies under the Region IX U.S. Office of Civil Rights, the process used by the NODAC, and the organizational receptivity and perceptions of school districts personnel responsible for coordinating compliance at or beyond minimal compliance. This article concludes with an evaluation process using lessons learned by the NODAC based on more than a decade of work and advocacy for students’ equal access to opportunity, quality bilingual education, and democratic schooling.

Status Quo of Interfaith Marriages in Indonesia after Supreme Court Circular Letter Number 2 of 2023

The trend of interfaith marriages is currently gaining interest in Indonesia. Data shows that by 2022, data on interfaith marriages will total 1425 spouses. The presence of the polemic about interfaith marriages in society has resulted in the government, through the Supreme Court, issuing SEMA 2/2023, which prohibits courts from accepting applications for interfaith marriages. Therefore, it is necessary to know the legality of interfaith marriages after SEMA 2/2023, especially regarding the legal ratio of the issuance of SEMA 2/20232. This study aims to determine the basis for the publication of SEMA 2/2023 and the validity of interfaith marriages after the publication of SEMA 2/2023. The study's novelty is demonstrated by the actuality of regulations published related to interfaith marriages in Indonesia, where previous studies analyzed the legality of interfaith marriages before the publication of SEMA 2/2023. The normative legal writing method is used by several approaches, such as the statutory regulations approach -invitation, case approach, and conceptual approach. The collection of legal materials in this study used literature study techniques. At the same time, the legal material analysis method is the descriptive analytical juridical method. The results show that the basis for preparing the circular letter is intended to guide judges in recording religious marriages in Indonesia. Also, since the circular letter came into force, the courts no longer have the authority to register interfaith marriages held in Indonesia.

Impunity in Nepal from a Social Protection Lens

This study aims to promote stakeholder solutions to the current state of affairs in Nepal, which has prevailed since the end of the armed conflict in 2006. The study argues that delayed justice in the cases of grave human rights violations that occurred during the armed conflict between the Maoist party and the Government of Nepal is closely associated with the accountability of the then-conflicting parties. The lack of the legislature’s engagement and the Government’s reluctance to address the recommendations of the Supreme Court on transitional justice-related instruments have prolonged the end of impunity and guaranteed social protection of the victims’ families. Upon reviewing the literature on human rights violations, this study concluded that accountability had been impeded by the fragmented conflicting parties, who ignored the victims' and their families’ concerns about justice and social protection. The Government, on the other hand, neglected truth seeking and therefore failed to ensure justice, including in the provision of reparations and standardised institutional reform. The current state of the country’s transitional justice law and unaccountability of state agencies cannot be improved without a collaborative approach and a consultative process with state, non-state actors, victims and their families, as well as the international community.

Finality and Certainty in the Integrated National System of Chapter III Courts: Judge Vasta v Stradford

Australian authority holds that there is a critical distinction between superior and inferior courts when it comes to the legal force of judicial orders affected by jurisdictional error. It is said that such orders, when made by a superior court, have legal force unless and until set aside but that, when made by an inferior court, they lack legal force from the outset. This distinction — recently consigned to pre-1846 history by the United Kingdom Supreme Court — does not align with the contemporary reality of the integrated system of courts established under Ch III of the Australian Constitution. The appeals in Commonwealth v Stradford, Judge Vasta v Stradford and Queensland v Stradford present an opportunity for the High Court of Australia to set a new approach that reflects the constitutional context for Ch III court operation. Specifically, the appeals may be upheld on the basis that any purported order made by a Ch III court acting as a repository of judicial power has legal force unless and until set aside.

Risk Profile of Stalking in South Korea: Analyzing the First Year of Court Decisions Following Initial Legal Responses.

South Korea implemented specific legislation titled the Act on Punishment of Crimes of Stalking (APCS) on October 21, 2021, to address the issue of stalking. This study evaluated the risks associated with stalking incidents in South Korea by reviewing and analyzing legal cases with finalized judgments within the first year of the APCS. Data were collected through a systematic search of the Korean Supreme Court's Written Judgment Management System database. We identified 193 stalking-related cases between October 21, 2021, and October 14, 2022. These cases were analyzed based on four risk profile criteria: profiles of stalkers and victims, the nature of stalker-victim relationships, motivations behind stalking, and patterns of stalking behavior. Further, we reviewed cases to which the APCS and the Criminal Act applied by analyzing stalker-victim relationships and the stalkers' underlying motivations to assess the risks associated with stalking. Approximately 16.6% of stalkers were diagnosed with mental disorders, the most common disorder being psychosis. The average age of the victims was 42.84 years, with a higher prevalence of female victims compared to male ones. Predominantly, stalkers were former intimate partners of the victims, with most cases motivated by rejection. Direct contact methods, such as physical approaches, have been observed more frequently than indirect methods, such as repeated unwanted messages, or non-contact behaviors, including surveillance and loitering. The findings provide an up-to-date overview of the under-examined criminal stalking issue in South Korea.

Special Collegium Activities on Certain Categories of Cases (1934–1938)

Special collegiums operated in 1934–1938 as part of the Supreme Court of the USSR, the supreme courts of the Union republics, regional and regional courts, and the main courts of the autonomous republics. Their creation can be considered as an experiment in transferring cases of state crimes from non-curial to judicial authorities. The special collegiums activities were provided by the NKVD, special departments of the prosecutor’s office and the sector of special courts of the People’s Commissariat of Justice of the USSR. Their personnel consisted of former NKVD officers and nominees of local justice authorities. All this makes it possible to characterize them as bodies of special justice. The most notable cases considered by special collegiums were cases of anti-Soviet agitation (Article 58–10 of the Criminal Code of the Russian Federation), cases under the decree of the Central Executive Committee and the Council of People’s Commissars of the USSR dated August 07, 1932 («The Law on Three Spikelets») and cases of banditry (Article 59-3 of the Criminal Code of the Russian Federation). All of them were considered within the framework of the campaign justice model. It was characterized by an expansion and narrowing of the interpretation of the norms of substantive law. This allowed ordinary crimes and administrative offenses to be considered as state crimes. The penalties were regulated. This led to unstable judicial practice. The methods of «simplification», i.e., deviations from the norms of substantive and procedural law, were actively used. Obviously, by the middle of 1938, the experiment of depriving non-judicial bodies of judicial functions was considered unsuccessful and the special collegiums were liquidated.