United States Supreme Court Research Articles

The over-citation of Daubert in forensic anthropology.

The 1993 US Supreme Court decision Daubert v. Merrell Dow Pharmaceuticals, Inc. presented new guidance for the judicial assessment of expert witness evidence and testimony in the determination of admissibility. Despite the rarity of admissibility challenges to forensic anthropology evidence, Daubert is frequently cited in published forensic anthropology research. This study undertook a qualitative thematic analysis of forensic anthropology articles published in the Journal of Forensic Sciences to assess why authors continue to cite Daubert and express concerns over potential exclusion. The results show a significant increase in the number of articles that cite legal admissibility standards over time (p < 0.001). Authors frequently cite these standards to contextualize their results within the Daubert framework or to justify the need for their research. Notably, many articles present Daubert as a constraining force, misinterpreting the guidelines as rigid criteria or that they require methods to be strictly quantitative. However, Daubert was intended to be a flexible tool for judges-not a standard or instruction for scientists. While it was reasonable to reflect on the scientific rigor of methods in the wake of the Daubert decision, a new perspective is warranted in which forensic anthropologists shift their focus from trying to "satisfy" admissibility guidelines to adopting quality assurance measures that minimize error and ensure confidence in analytical results, and developing and using methods that are grounded in good science-which is important regardless of whether or not the results are ever the subject of a trial.

Does the Federal Law Forbidding People under Domestic Violence Restraining Orders from Possessing Firearms Save Lives?

The Supreme Court of the United States will hear arguments concerning Federal Law 18 U.S.C. 922(g)(8) which forbids individuals who are under a Domestic Violence Protection Order (DVPO) from possessing firearms. This paper analyzes the potential costs of overturning that law. We estimate a variety of models to determine the effect of the law on domestic murders, domestic femicides, domestic gun murders, and domestic gun femicides. We subject the analysis to a variety of robustness checks. The results are remarkably robust. We find that 18 U.S.C. § 922(g)(8) does not significantly reduce domestic murder, domestic femicide, domestic gun murder, or domestic gun femicide.

Privileging Midwives for Abortion Care.

Since the US Supreme Court overturned Dobbs v Jackson, expanded access to abortion has been critical. Abortion is safe, and related complications are rare. The safety of abortion provision by advanced practice clinicians (APCs) is well documented. Despite the increase in targeted restrictions for patients and clinicians in many states post-Dobbs, in recent years there have been meaningful gains in recognition and codification of abortion as part of an expanded scope of practice for APCs. Thus, creating a formal written pathway for midwives to obtain privileges in abortion provision could also improve abortion access. In New York City's public health care system, the largest in the United States, midwives provide a significant portion of perinatal and gynecologic care. Yet, until recently, a process to privilege midwives in the provision of abortion services did not exist. In response, midwives and physicians at a large New York City hospital system sought key stakeholder support to develop a pathway for certified nurse-midwives and certified midwives, licensed midwives in New York state, to obtain the necessary training needed for independent abortion provision. This article describes the development of a midwifery-led pilot program to improve abortion access by increasing the availability of trained midwifery abortion providers, along with the results of staff meetings exploring attitudes toward abortion care by APCs. We report our safety statistics from this pilot program and share existing evidence for safety of abortion provision by midwives and other APCs.

Three recent court decisions reframe what constitutes criminal conduct in prescribing controlled substances.

Three recent opinions issued by the United States (US) Supreme Court suggest the possibility of a new interpretation of key drug enforcement provisions in the Controlled Substances Act of 19701 (CSA) affecting prescribers of controlled sub-stances. Applying the Court's holdings in Xiulu Ruan v. US,2 Dobbs v. Jackson Women's Health Organization,3 and West Virginia v. Environmental Protection Agency4 to the Department of Justice's and the Drug Enforcement Administration's overreaching enforcement of the CSA, this paper contends that Congress should amend the CSA and rectify the broad misapplication of the law to the practice of medicine.

Life or death: A qualitative examination of mitigating and aggravating evidence presented in capital trials.

The US Supreme Court has required that death penalty procedures narrow the class of persons eligible for a death sentence. Through the selection requirement, juries must use mitigating and aggravating evidence jointly to determine if a defendant is one of the worst of the worst, resulting in a sentence of life without parole or death. This study analyzed capital trial transcripts from the punishment phase to assess the type and amount of mitigating and aggravating evidence presented to jurors in cases resulting in life without parole and death. The main assumption of the research was that cases resulting in life without the possibility of parole (LWOP) would reveal patterns in the types of evidence presented and differing patterns in cases where the jury handed down a sentence of death. The study qualitatively examined the trial transcripts from the punishment phase of 18 capital murders (nine resulting in LWOP and nine in death). The extra-legal factors from each LWOP case were matched to a death case to eliminate sentencing discrepancies based on jurisdiction, race of defendant or victim, aggravator, age etc. The results found no consistent patterns of evidence presented in cases resulting life without parole and some relevant patterns in sentences resulting in death.

Race, electoral pressure, expected judicial ideology, and the vote to confirm Justice Clarence Thomas

ABSTRACT The paper “Courting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas” tests the theory that electoral pressure from Black constituents played a role in the confirmation of Justice Clarence Thomas to the United States Supreme Court (Overby, L. Marvin, Beth M. Henschen, Michael H. Walsh, and Julie Strauss. 1992. “Courting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas.” American Political Science Review 86 (4): 997–1003. https://do.org/10.2307/1964351). This paper reveals several methodological errors in the original paper and also provides a friendly critique of several of the underlying assumptions put forth in the 1992 paper. This paper then offers an alternative explanation that the expected judicial ideology of Clarence Thomas nomination was relatively more important than electoral pressure from Black voters.

THE REJECTION OF ROE v WADE BY THE UNITED STATES SUPREME COURT AFTER FIVE DECADES – A SEISMIC DECISION

The recent dramatic about-turn of the United States Supreme Court (USSC) in Dobbs v Jackson Women’s Health Organisation (Dobbs) in May 2022 regarding the rights of women in the United States to an abortion has caused a major uproar. Overruling one of the most famous of all USSC cases, Roe v Wade (410 US 113 (1973) (Roe)), five decades after it was decided, has had major repercussions. To fully comprehend the impact that Roe had on the United States, it is opportune to give an overview of Roe, which was a dramatic judgment and became established law for 50 years. In revisiting Roe, it is difficult to understand why such a clear and well-reasoned majority judgment has been overruled.Roe raised serious legal, moral and religious issues. The central issue was whether a woman had a legal right to an abortion. The USSC by a majority of seven to two held that woman had a constitutionally protected right to an abortion. As will be seen, Roe based its decision on its interpretation specifically of the Fourteenth Amendment of the United States Constitution.All major cases before the USSC can be put into two categories – abortion cases and all others. Abortion remains the central legal issue before that court. It defines the judicial philosophies of the justices of the USSC. It dominates their nomination and confirmation processes. The abortion controversy is sensitive and emotional. It generates vigorous, opposing views. It inspires deep and absolute convictions. A person’s philosophy, experiences, exposure to the raw edges of human existence, religious beliefs, and attitudes towards family values, and the moral standards a person establishes and seeks to observe all influence their thinking about abortion.It arguably delineates the difference between the National Democratic and Republican parties. When, during the confirmation proceedings of the present Chief Justice Roberts, he was asked about his views on Roe, he was careful not to commit himself. His answer was that Roe was settled as a precedent of the court and entitled to be respected under the principles of stare decisis, but he added that the justices of the Supreme Court do sometimes reverse their own precedents.Abortion issues remain eternal. Does a woman have a legal right to an abortion? Is the termination of a pregnancy a decision to be made by a woman and her doctor, or is the protection of potential human life a legitimate interest of the State? At what point does an unborn person acquire legal rights that are protected under the law? The majority and dissenting judgments in Roe represent the full spectrum of legal approaches to these and related questions. However, no court decision exists in a vacuum and the controversial issues raised in Roe continue to be raised and debated in the legal and political life of the United States, as they do in other jurisdictions.

Oh What Tangled Webs We Weave—Unpacking (and Unpicking) the Majority Opinion in Dobbs, State Health Officer of the Mississippi Department of Health et al. v. Jackson Women's Health Organization et al.

Abstract This paper evaluates the majority judgment in the United States Supreme Court in Dobbs v. Jackson Women's Health Organization. It is suggested that much of what is said in the majority opinion ostensibly appears eminently defensible if viewed solely from a narrowly legalistic perspective. But closer analysis suggests that the majority's reasoning has some weaknesses when viewed within that limited paradigm. A further line of inquiry assesses whether adopting such a ‘legalistic’ approach to the question of abortion rights is in any event an appropriate position for the Court to adopt. The final section of the paper explores two additional contextual issues: the first relates to the personal ethical integrity of some of the majority judges; the second to the adequacy of State political processes as a means to address the abortion rights controversy.

Worse Access, Quality, and Leadership—Redressing the Affirmative Action Ruling’s Litany of Harms

This JAMA Forum discusses the US Supreme Court’s ruling on affirmative action in the context of the potential harms to access to care, quality of care, and leadership for the health care system.

Sub-constitutionally repairing the United States Supreme Court

In December 2021, the Biden Commission — constituted in response to the politics and partisanship surrounding the Supreme Court — released its report analysing proposals for Supreme Court reform. The commission found most reform proposals unrealistic due to the ‘nearly impossible-to-amend American constitution’ or the proposals creating new problems. Given the rigidity of the American constitution, any realistic reform must be implemented through sub-constitutional means. In contemporary discourse, investigations into sub-constitutional reforms have been limited. In most cases, proposals for sub-constitutional reform are merely creative strategies to bypass a constitutional amendment. This only opens a pandora's box of new problems and hinders these proposals’ effective realisation. Sub-constitutional reform must be explored on its own merits in light of the legal landscape. Consequently, this article demonstrates how meaningful reforms can be achieved sub-constitutionally. Through sub-constitutional means, this article's reform proposal seeks to try and ensure that consensus candidates are nominated/appointed to the Supreme Court. This, it contends, can address many problems facing the court today. In propounding its reform proposal, this article hopes to illuminate the broader debate on the reform of apex courts and provide takeaways for jurisdictions facing predicaments similar to America.

The role of human dignity in the jurisprudence of the African Commission on Human and Peoples’ Rights

Human dignity is a concept that is often mentioned in core human rights treaties and national constitutions as the foundation of human rights. At its core it demands respect for the life and integrity of the human person, recognition of the equal worth of human beings and respect for their autonomy or self-determination. Many national and supra-national courtsalso use the concept to explicate the meaning and limitations of human rights. The constitutional court of Germany, South Africa and the European Court on Human Rights are notable in this regard. In recent years, the US Supreme Court has also increasingly used the concept in resolving hard cases and expanding the scope constitutional rights. Though, the role andapplication of human dignity has received considerable scholarly attention, it is mainly confined to the European constitutional orders and the US constitutional system. With respect to regional human rights systems, scholars have largely focused on examining the role of human dignity in the jurisprudence of European Court of Human Rights and the Inter-AmericanCourt. As such, little is known about what role human dignity is playing or could play in the interpretation of rights in the African human rights system. This is alarming considering the poor status of protection of human rights and weak constitutional right jurisprudence in many countries of Africa. Accordingly, this article seeks to fill the lacuna by examining the role of human dignity in the African human rights system by exploring its place in religious and cultural value systems of different African societies.

Forensic science: A judicial perspective

This article describes three major developments in forensic evidence and the use of such evidence in the courts. The first development is the advent of DNA profiling, a scientific technique for identifying and distinguishing among individuals to a high degree of probability. While DNA evidence has been used to prove guilt, it has also demonstrated that many individuals have been wrongly convicted on the basis of other forensic evidence that turned out to be unreliable. The second development is the US Supreme Court precedent requiring judges to carefully scrutinize the reliability of scientific evidence in determining whether it may be admitted in a jury trial. The third development is the publication of a formidable National Academy of Sciences report questioning the scientific validity of a wide range of forensic techniques. The article explains that, although one might expect these developments to have had a major impact on the decisions of trial judges whether to admit forensic science into evidence, in fact, the response of judges has been, and continues to be, decidedly mixed.

US Supreme Court Doctrines in COVID-19 Cases Threaten Public Health

US Supreme Court Doctrines in COVID-19 Cases Threaten Public Health

Различает ли Фемида цвета? Верховный суд США против позитивной дискриминации

The article discusses the recent decision of the US Supreme Court in the case of «affirmative discrimination» in universities. «Positive discrimination» or «affirmative action» is a system of preferences, in this case for admission to a university, provided to historically disadvantaged racial and ethnic minorities. The question is whether such measures comply with the constitutional principle of «equal protection of the law» and whether they infringe on the rights of other ethnic groups. Previously, the Supreme Court recognised some «affirmative action» programmes in universities as constitutional, albeit with serious reservations. According to the Supreme Court, such a programme, in order to be recognised as legitimate, must undergo «strict control» by the court. In this case, the Supreme Court, in principle, confirmed the positions formulated earlier, but at the same time declared as illegal some programmes that are very similar to those that were previously recognised as legitimate. The Court emphasised that «affirmative action» programmes should have a historically limited duration, which, in the opinion of the Court, is already running out. The issue of «affirmative discrimination» is in active dispute between American «conservatives» and «liberals». The votes of the judges of the Supreme Court were divided strictly along ideological lines: three «liberal» judges voted in favour of approving the contested programs of «positive action», while six «conservatives» were against.

De Legé v. the Netherlands: The ECtHR adopts a line of reasoning similar to that of the United States Supreme Court on compelled production of real or physical evidence

In de Legé v. the Netherlands, a decision characterized as a key case, the ECtHR addressed once again the problematic relationship between the right against self-incrimination and the compelled production of real or physical evidence. In its judgment, the Court held that the use of the evidence submitted by the defendant to the authorities does not fall within the scope of the right against self-incrimination when the evidence in question concerns pre-existing documents of whose existence the authorities were already aware. By developing this argument, the European Court has adopted a line of reasoning similar to the ‘foregone conclusion’ doctrine of the United States Supreme Court. This article aims to critically analyse the decision of the ECtHR. It will be argued that the ECtHR does not sufficiently support its reasoning. Moreover, it does not take into account the rationale of the right against self-incrimination, which, as will be stated, can be considered opposed to the ‘foregone conclusion’ doctrine, at least in the European context.

미국 연방대법원의 Andy Warhol Foundation v. Goldsmith 판결과 그 시사점

The recent United States Supreme Court ruling in Andy Warhol Foundation v. Goldsmith (2023) has clarified the concept of fair use. The Supreme Court ruling can be summarized as follows: “In the United States Copyright Act, the first factor in determining fair use is the purpose and character of the use. Transformativeness is the degree to which the use has a different purpose and character from the original work. Transformativeness is evaluated by considering the two factors of ‘commercial character’ and ‘justification of use’. If transformativeness is found, it means that the first factor of fair use has been passed favorably. Additionally, for fair use to be recognized overall, especially in relation to the first factor of the purpose and character of use, it must be reviewed in the context of the specific use of the relevant case. In the case of specific use, if the purpose of the original work and the subsequent work are different, fair use may be established.” When compared to the Google ruling of the United States Supreme Court in 2021, there is a greater possibility that the justification of use related to compatibility, standards, and efficiency will be recognized in technical cases, but the justification of use of another's work is relatively less likely to be recognized in artistic cases where the individual expression of the artist is the main part. In this regard, it is also noteworthy that the distinction between ‘technical transformativeness’ and ‘artistic transformativenss’ may be regarded as established by recent US case laws.

Order effects and oral argument at the US Supreme Court

AbstractObjectiveFor years, scholars have employed Justice Harry Blackmun's private grades of attorneys to measure attorney oral argument quality. Using archival data, I analyze whether Justice Blackmun experienced order effects.MethodsI estimate numerous ordinary least squares regression models on private archival data.ResultsBlackmun's respondent grades appear to have been influenced by his perceptions of how the petitioners performed. This finding holds across a series of checks, including those that examine whether some cases simply attract better or worse attorneys.ConclusionThe results suggest that scholars should not use the Blackmun grades as “point estimates” but, instead, as rankings. They also suggest that previous findings may have overstated the influence of oral argument. The fact that one justice displayed evidence of a cognitive illusion also suggests that such effects may exist in various aspects of decision making.

Representations of Pro-Choice Protesters in US News Media

Abstract In June 2022, the US Supreme Court overturned the landmark Roe v. Wade ruling and, with that decision, revoked access to safe abortion for many women across the country. The decision was anticipated and immediately followed by protests from pro-choice campaigners, who challenged the decision, arguing that it would pose a threat to the health of women across the US and compound existing inequalities relating to ethnicity and social class. In this article, we use a corpus-based approach to Critical Discourse Analysis to examine the representation of the protests in US national newspapers between May and July of 2022. Focussing in particular on the representation of the protests’ worthiness, unity, numbers and commitment, we find that generally the protests are afforded legitimacy in the coverage, with only the representation of worthiness bucking this trend. Following the analysis, we consider the possible motivations for this somewhat complex picture and consider the broader implications and future directions for similar such protests and women’s reproductive rights more generally.

Recent Legal Developments: Criminal Justice Decisions of the United States Supreme Court, 2022 Term

In this paper, we review and analyze the criminal justice–related decisions of the 2022 term of the United States Supreme Court. We also provide a summary of the Court's voting patterns and opinion authorship. Fourteen of the Court's 58 decisions touched on criminal justice. There were significant decisions involving the First Amendment, the Sixth Amendment, and federal criminal statutes. Each of these is discussed in turn.

Breaking Barriers and Shaping Justice—The Transformative Power of Increasing Female Representation in the Supreme Court

The United States Supreme Court, responsible for interpreting the Constitution and shaping legal precedents, historically lacked gender diversity with significant underrepresentation of women. This essay explores the advantages of increasing female presence on the Court, asserting that greater gender diversity can contribute to a fairer and more comprehensive judicial system. Through an examination of relevant legal cases, scholarly research, and comparative examples, this essay highlights the positive impact of female representation, including improved decision-making diverse perspectives, enhanced legitimacy, and increased public confidence in the judiciary.