United States Supreme Court Research Articles

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.

Protecting Mothers against Domestic Violence in the Context of International Child Abduction: Between Golan v Saada and Brussels II-ter EU Regulation

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures.

The impact of parental involvement laws on minors seeking abortion services: a systematic review.

On June 24, 2022, the US Supreme Court overturned the constitutional right to abortion in Dobbs v Jackson Women's Health Organization. Minors are a vulnerable population with a high risk of unintended pregnancy who are likely to be disproportionately affected by abortion restrictions. Examining the impact of historical abortion restrictions in minors may provide insight into the anticipated effects of the Dobbs decision. This study is a systematic review examining the impact of parental involvement (PI) laws on minors seeking abortion services. Our review suggests an association between PI laws and decreased abortion rates. Parental involvement laws also may increase pregnancy and birth rates and out-of-state travel for abortion procedures and lead to later abortions, although effects appear to be heterogenous.

The United States Supreme Court’s new conservative supermajority: a Constitutional Counter-revolution?

The United States has the oldest written constitution in the world. Its staying power has proved remarkable, with the same brief document (fewer than ten printed pages) serving as the nation’s fundamental law since 1787 with only twenty-seven amendments (the first ten adopted immediately after its adoption, the three most important modifications coming after the Civil War in mid-19th century, and merely 11 ratified in the twentieth century, none after 1992). The basic principles embodied in the constitutions have remained constant, with separation of powers along with checks and balances and federalism shaping the basic structures of government.

A Comparative Study on the Rights and Interests of Chinese and American Women Based on the American Abortion Case

In 1973, through Roe v. Wade, the U.S. Supreme Court established for the first time a woman constitutionally protected right to free choice to have an abortion. The decision's derivative interpretation of the Constitution's Fourteenth Amendment to due process grounded the right to abortion in the right to privacy, and the right to abortion has had constitutional provenance ever since. The decision was considered a significant victory for female rights protection; however, it remained a controversy for several decades, particularly on moral and religious spectrum. The case was overturned by the US Supreme Court 50 years later, putting a halt to the process of abortion liberalization. It means that each state in the U.S. would decide its own laws and regulations regarding abortion, which set off a worldwide debate on women's rights. This article compares the legal systems of women's rights in China and the United States through the above-mentioned case, and finds that there are many differences in the legislation and implementation of the existing laws in both countries, mainly due to the discrepancy in culture, history, religion, etc. Discussion on effectiveness and limitations of legal solutions to ethical disputes is also mentioned, law can provide a broad framework for solving ethical dilemmas, but unable to deal with every individual perspective or be detailed enough to deal with every possible scenario. In short, the law is only one of the tools in a broader ethical framework that needs to work align with the context of other social determinants.

Midwives Safeguarding Abortion Access: Establishing Medication Abortion Services.

The abortion access landscape for patients has changed dramatically in the wake of the US Supreme Court Dobbs v. Jackson Women's Health Organization decision in June of 2022. In response, the Division of Midwifery at Baystate Medical Center in Springfield, Massachusetts, began a medication abortion service for both established patients and those who may seek care from out of state. This service increases access to abortion care now while also providing the clinical experience needed for student nurse-midwives to become future abortion providers. This article outlines the steps taken to implement a medication abortion service and ways it can be adopted by other midwifery practices. Strategies to address possible clinical, administrative, and logistical challenges are addressed. Finally, this article is a call to action because midwives are well qualified to provide high quality, safe, and comprehensive medication abortion within the midwifery model of care.

The US Supreme Court and Affirmative Action: The Negative Impact on the Physician Workforce

PurposeMaintaining admissions of underrepresented students to medical schools is essential to securing a diverse health care workforce. Empirical evidence indicates that minority patients may prefer practitioners of their own race. The recent US Supreme Court decision concerning affirmative action makes this goal more difficult, but medical schools can still work within the language of the law to redouble their efforts to seat a diverse class of medical students. MethodsWe examined the literature correlating the availability of minority physicians and the health outcomes of the patients they serve. We also examined the literature on race-conscious policies of medical schools intended to address the shortage of minority physicians considering the benefits achieved through a diverse field of health care workers. We also examined the law and the recent US Supreme Court opinion, including the application of equal protection principles, to suggest strategies to seat a diverse class of students within the scope of the law. FindingsInstitutions have maintained the status quo of disparate distributions of professions by race through structural biases that also limit access to medical schools. The new US Supreme Court decision is expected to exacerbate this disparity unless medical schools engage in admissions protocols that actively solicit the character and unique abilities that each of the applicants can offer to contribute to the medical school and the health care profession. ImplicationsThe new US Supreme Court mandate is likely to create challenges for medical schools in their efforts to recruit and seat minority applicants. The mandate provides little discussion, suggesting a lack of understanding of the downstream public health consequences to patients if medical school applicants are denied the benefits of race-conscious admissions policies. Nevertheless, the language of the US Supreme Court's opinion may provide a viable path forward, at least with respect to medical schools where the need for a diverse pool of health care practitioners is particularly compelling.

Transforming Pediatric Education in Response to Dobbs v. Jackson: Empowering Adolescents to Manage Their Reproductive Choices

The June 2022 landmark decision from the US Supreme Court in Dobbs v. Jackson Women’s Health Organization removed the federal constitutional protection for abortions, leading to an immediate, profound impact on reproductive rights for people of all ages and, thus, on the practice of the medical providers who serve them. The Dobbs ruling forced a swift and drastic change in the availability of comprehensive reproductive care available to pregnant teens. Further, it led to confusion, fear, and moral distress regarding how pediatricians could legally provide counseling on reproductive choices. Pediatricians were left scrambling to understand the rapidly evolving laws in each state, while also attempting to interpret these new statutes for our trainees. Pediatric educators need to understand the impact of the Dobbs ruling on the education of pediatric trainees. The repercussions for the entirety of pediatric graduate medical education are widespread. Recruitment and retention of both trainees and faculty are jeopardized. Curricula and patient care opportunities for reproductive health training have been limited. Additionally, the ethical and legal implications of our work have been called into question, thus affecting the moral standing and professional identity development of pediatric trainees. As pediatric health educators, it is imperative that we take a lead role in teaching and mentoring our trainees to provide comprehensive reproductive health care to all patients, with an emphasis on the principles of reproductive justice. This will entail additional training in advocacy skills essential to ensure a just, equitable future for all our pediatric and adolescent patients.

The neoliberal offensive to anti-discrimination law: the expansion of protected freedom in the Brazilian Federal Supreme Court and the US Supreme Court

Resumo Diante da ofensiva neoliberal sobre o direito da antidiscriminação, este artigo objetiva analisar a expansão da proteção da esfera pessoal protegida como estratégia anti-igualitária. Para tanto, estrutura-se em duas partes: após cuidar da gramática de direitos na perspectiva neoliberal (primeira parte), examina a ofensiva anti-igualitária consubstanciada em respostas jurisprudenciais emblemáticas da Suprema Corte dos Estados Unidos (o caso “303 Creative LLCC vs. Elenis”, de 2023) e do Supremo Tribunal Federal (casos envolvendo a legislação “Escola Sem Partido/Escola Livre”, 2018-2020). Cuida-se de conhecer aproximações e disparidades entre as respostas judiciais ao neoconservadorismo nos Estados Unidos, que alcançou o direito à discriminação empresarial LGBTfóbica na oferta de serviços, e às investidas contra a liberdade de cátedra no Brasil.

Unpacking the legality of termination of pregnancy based on ‘social grounds’ under South African law

The topic of abortion was in the limelight again in Dobbs v Jackson, where the US Supreme Court overturned the decision of Roe v Wade, ‘which guaranteed women and pregnant people a constitutional right to abortion’. While not bound by the judgment, this gives us an opportunity to reflect on the current law in South Africa which regulates the termination of pregnancy. The primary piece of legislation which governs abortion is the Choice on Termination of Pregnancy Act. Section 2 of the Act lists the grounds under which one may lawfully terminate a pregnancy. One of those grounds relates to the period of the 13th up until the 20th week of the gestation period, and states that if a medical practitioner, after consultation with the pregnant woman, is of the opinion that the continued pregnancy would significantly affect the social or economic circumstances of the woman, then the pregnancy may be lawfully terminated. The question is: What exactly is meant by ‘social grounds’? This article considers this aspect from a legal perspective and attempts to provide clarity on the issue, in the hope that this will be of assistance to medical practitioners who are concerned about the outcome of their actions, when assisting persons in this position.