Breaking News

Author: Adam Feldman

By on Sep 13, 2018 at 4:01 pm
Success in the Supreme Court is hard to define because it can be viewed in a variety of ways. Few attorneys have the opportunity to try cases there, and even fewer argue multiple cases. Part of success therefore is simply getting a case or cases to the court. Once the court agrees to hear a case, the case’s history comes with it; that is to say, attorneys do not all start with an equal likelihood of winning because often one side’s position is stronger than the other's at the outset. With this caveat in mind, attorneys often view case outcomes dichotomously – as wins or losses. This post looks at attorneys who have argued cases across the last five Supreme Court terms, from 2013 through 2017. It uses a dataset of attorneys and firms that was merged with the Supreme Court Database and focuses on regular players who have been most successful in terms of case wins.

By on Sep 5, 2018 at 3:48 pm
Supreme Court nominees’ confirmation hearings involve much dialogue between nominees and senators.  The dialogue, though, hardly ever provides substantive information about the nominees. In two chaotic days of the Senate Judiciary Commission’s hearing on the nomination of Judge Brett Kavanaugh, we have seen a full spectrum of behavior from both sides of the aisle. Showboating aside, this is a genuinely important hearing for a crucial seat on the Supreme Court and hence emotions are running high. Although much of the discussion leading up to the hearing surrounded how nominees do not answer substantive questions, many still hope that this time around things may be different. As scholars Paul Collins and Lori Ringhand have shown in a series of articles (for example), much can be learned about what we can expect from studying past confirmation hearings.

By on Aug 28, 2018 at 5:11 pm
The Democrats are in a precarious position in the latest battle for a seat on the Supreme Court. Many Democrats oppose Judge Brett Kavanaugh’s nomination and will not vote to confirm him. Others are requesting that the Senate hold off on voting on Kavanaugh’s confirmation until the National Archives produces the record-setting million or so pages of documents from Kavanaugh’s work in the federal government. The Democrats’ strategy is twofold. First, if they can push the vote until after the midterm elections, they may gain a majority in the House, Senate or both, potentially giving them greater leverage over the confirmation process. Second, some of the documents, specifically those from when Kavanaugh worked in the White House counsel’s office under President George W. Bush, might paint a more contentious picture of Kavanaugh and one that makes him less characterizable as a confirmable candidate. As several articles have pointed out though, the chances that the vote timing gets stretched past the midterm elections are incredibly slim, and stretching the timeline closer to the midterm elections might hurt Democrats running for office. Because the Democrats lack a majority of votes in the Senate, there is little they can do to slow the process set forth by Senate Majority Leader Mitch McConnell aside from trying to sway potential swing Republican senators away from a pro-Kavanaugh vote (or to push for a vote past the midterms). With a Republican majority in the Senate, convincing any Republican senators to oppose the vote as planned may be an impossible task. The vast majority of Republican senators have already declared support for Kavanaugh and are not viable options for persuasion. Even with the recent death of Sen. John McCain, in order to prevent an easy road for Kavanaugh to the Supreme Court, the Democrats will have to sway at least one Republican senator either not to vote before the midterm elections or to vote against Kavanaugh’s confirmation.

By on Aug 21, 2018 at 1:19 pm
The Supreme Court hears its first oral argument of the October 2018 term on the first Monday in October -- October 1, 2018. Before then, on September 24, the justices will sit down to what is known as the “long conference,” where they will review petitions for certiorari for the first time since June. The number of petitions the justices review during this conference typically exceeds 1,000. With approximately 1,321 active cases and over 1,200 petitions for certiorari, this year’s number is once again well over 1,000. This post uses data from CertPool.com as a starting point to examine aspects of the petitions the justices will review in September and then focuses on 40 petitions that have a higher than normal likelihood of success. (Click this link for Empirical SCOTUS’ look at long-conference petitions from last term.) The process of examining data related to any Supreme Court conference before the conference actually takes place is dynamic. Moving pieces are constantly shifting, mostly in the form of actors, arguments and case filings. Because the CertPool data looks at the Supreme Court dockets, the information included depends on when CertPool pulled the data. This post should therefore not be viewed as a complete analysis of what will be reviewed during the long conference, but rather as a snapshot of some of the key cases and players. This information is meant to give a sense of what the justices and clerks will review and which cases seem particularly salient at the cert stage.

By on Aug 8, 2018 at 4:51 pm
The current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the current court is more pro-business than previous iterations. (That study was recently updated through the 2015 term.) This post uses data from the 2015 through 2017 terms to add to this discussion. In particular it seeks to locate the trajectory of the court with the possible addition of Judge Brett Kavanaugh for the October 2018 term. Although the court’s right and left sides found themselves on opposite ends of business rulings during the October 2017 term, we might expect an even stronger pro-business court next term with the addition of another likely predictably pro-business justice in Kavanaugh.

By on Aug 1, 2018 at 2:53 pm
Although female justices have only served on the Supreme Court since 1981, a relatively short slice of the court’s history, gender imbalances have existed in oral argument interruptions for many years, with female justices bearing the brunt of them. These imbalances were identified in a blog post on Empirical SCOTUS, with subsequent commentary from Stephanie Mencimer at Mother Jones. Other articles and scholarly papers (and here) then conducted deeper inspections of these interactions, with one study finding that these gender imbalances even extended to Supreme Court advocates. Insights from these works became the subject of Justice Sonia Sotomayor's remarks at the recent American Constitution Society convention. As the results of previous studies have reached a wide audience and, as Sotomayor claims, have been acknowledged by the justices, one might expect that the justices have rectified or attempted to rectify these imbalances. Before investigating this claim with the 2017 term data, a quick note about the methodology. As with other studies on this subject, this post used a script to note each time a speaker’s remarks ended with a double-dash (“--”) rather than a period. Each speaker’s full speaking turn was coded as one utterance. Utterances end at the close of a sentence, with an interruption, or at the close of a segment of oral argument. If a speaker’s utterance ended with a double dash, then the initial speaker was coded as interruptee and the subsequent speaker was coded as interrupter. The script was developed and implemented by attorney Alexander Kappner.

By on Jul 26, 2018 at 11:58 am
Many people seems to be wondering how Judge Brett Kavanaugh will vote in abortion cases if confirmed to the Supreme Court, and more specifically if he will vote to overturn Roe v. Wade. Kavanaugh has only written a decision in one case regarding abortion -- Garza v. Hargan. In that case, he did not stake out a position on the constitutionality of abortion, as his dissent pertained to whether the government’s involvement would lead to an undue burden on obtaining an abortion. He also did not join Judge Karen Henderson’s opinion, which much more directly critiqued the constitutionality of the detained minor’s receiving an abortion. Aside from this, the closest we get to Kavanaugh’s position on abortion is a 2017 speech he gave to the American Enterprise Institute in which he discussed Rehnquist’s dissenting opinion in Roe. Although he did not directly articulate his position on abortion, his logic could be construed as positioning him as anti-abortion. The relevant paragraph from the speech reads:
In this context, it’s fair to say that Justice Rehnquist was not successful in convincing a majority of the justices in the context of abortion either on Roe itself or in the later cases such as Casey, in the latter case perhaps because of stare decisis. But he was successful in stemming the general tide of free willing judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition. The Glucksberg case stands to this day as an important precedent, limiting the Court’s role in the realm of social policy and helping to ensure that the Court operates more as a court of law and less as an institution of social policy.

By on Jul 23, 2018 at 4:00 pm
Even though the Supreme Court is not in session, it is far from out of the news. With the nomination of Judge Brett Kavanaugh, much of the conversation now concerns expectations for a fierce confirmation battle -- possibly one of the most fierce we have ever seen. Notwithstanding the drama surrounding the failure of Judge Merrick Garland’s nomination, some speculate that because Justice Neil Gorsuch took the place of another conservative, Justice Antonin Scalia, the Democrats did not mount a significant struggle (or at least as significant as they could have) to combat that confirmation. Even so, the Republicans needed to enable and exercise the nuclear option to confirm Gorsuch, because they would not have succeeded under the old Senate rules. Now that the Republicans can put their mark on the Supreme Court for years to come with a justice more conservative than Justice Anthony Kennedy, many see the stakes as much higher. Here are a few reasons why.

By on Jul 16, 2018 at 2:16 pm
Good writing makes a world of difference in appellate practice.  In an era when some scholars question whether oral arguments have very much utility, briefs, and especially amicus briefs, are thought to play a unique role in Supreme Court decision-making.  The court receives briefs in large numbers, with amicus briefs leading the way.  Cases with broad national repercussions may garner 100 amicus briefs or more (one example of a case with over 100 such briefs is Obergefell v. Hodges).  With so many filings, the justices tend not to read each brief and may instead delegate the bulk of this task to their clerks. Groups filing amicus briefs have several ways to capture the attention of clerks and justices. Certain groups with already established credibility like the Office of the Solicitor General are known to have an impact on the court’s opinions through their amicus briefs.  Others that lack this institutional standing must seek out alternative means to persuade justices and clerks to read their writings. Studies suggest that aspects of brief-writing can positively affect the evaluation of briefs.  Even though there are several off-the-shelf metrics for writing quality, few if any have been successfully employed by a large number of legal writers.

By on Jul 10, 2018 at 9:21 pm
The discussion over who would fill the Supreme Court vacancy has dominated much of the political conversation since Justice Anthony Kennedy announced his retirement from the Supreme Court on June 27. On Monday night, Judge Brett Kavanaugh, an obvious choice and the one I predicted in December 2017, was announced as nominee. When Kennedy’s retirement rumors previously circulated, many on the left were fearful of how this would shift the court in the conservative direction (and many still are). Then, as Kennedy failed to join the court’s liberal justices  in any 5-4 decisions this past term, some became skeptical of whether Kennedy was as moderate as he was often portrayed. Over the years, Kennedy did side with the court’s more liberal justices in important rulings and was often the swing vote for this coalition when there was one. If Kavanaugh is confirmed, he is unlikely to play a similar role. The question is rather how far to the right Kavanaugh will push the court.