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Author: Amanda Frost

By on May 6, 2015 at 10:02 am
Marquette Law School recently hosted the first academic symposium devoted to the role of the law clerk, with a particular focus on the U.S. Supreme Court.  Most of the contributors indicated that law clerks exercise significant influence over all aspects of the Court’s work, from the grant of certiorari petitions to the questions asked at oral argument and the Court's decision.  Participants also studied the Court's hiring practices over the years, as well as the career trajectories of former Supreme Court clerks.  For those curious about this under-studied institution, the Marquette symposium is a treasure trove of data and analysis.

By on Apr 3, 2015 at 12:35 pm
Kevin Johnson, who covers the Court’s immigration docket for this blog, has posted an article analyzing trends in Supreme Court immigration cases over the last five years.  Although the Supreme Court has frequently departed from the normal rules of constitutional and statutory interpretation in immigration cases, Dean Johnson’s study of the 2009 through 2013 Terms suggests that “immigration exceptionalism” may be on its way out.

By on Feb 27, 2015 at 12:16 pm
Scholars are now analyzing Supreme Court opinions for their style as well as their substance.    Keith Carlson (a computer scientist), Michael A. Livermore (a law professor), and Daniel Rockmore (a mathematician) have just posted on SSRN a quantitative analysis of the writing style of all Supreme Court opinions between 1791 and 2008. Their study provides some interesting data for avid SCOTUS watchers:  They ranked each Justice by the “friendliness” of their opinions, noted changes in the complexity of Court's use of language, and found evidence to suggest that the Justices are relying more heavily on law clerks to draft their opinions.

By on Oct 21, 2014 at 11:30 am
Last Term, the Supreme Court issued a higher percentage of unanimous decisions than in any Term since 1940.  The Court was unanimous 62% of the time, and there were dissenting opinions in only 39% of the cases.  Was the 2013 Term an outlier, or is it a harbinger of a new consensus among the Justices?  Cass Sunstein tries to answer that question in his recent article Unanimity and Disagreement on the Supreme Court.

By on Jul 8, 2014 at 10:15 am
Anyone who follows the Supreme Court knows that its docket is driven by its interest in resolving circuit splits.  But harder questions lurk behind that observation.  Does the Court usually agree with the majority of circuits’ views on a contested questions, does it side with the minority, or does it reach an entirely independent conclusion?  Do some circuits fare better than others and, if so, which ones?  Are courts that handle a disproportionate number of cases in a particular area (e.g., the Second Circuit and securities litigation) more likely to be affirmed?  A number of scholars have set out to address those questions, which are surprisingly hard to answer.

By on May 30, 2014 at 2:56 pm
In 1991, Professor Bill Eskridge published a landmark empirical study showing that Congress frequently overrode the Supreme Court’s statutory interpretation decisions.  Eskridge’s findings, which surprised almost everyone at the time, support the now well-accepted conclusion that the Court and Congress are in constant dialogue with each other, meaning that neither institution can claim the last word on statutory meaning. Then, in 2013, Professor Richard Hasen updated Eskridge’s study and found that over the last two decades “the number of Congressional overrides has fallen off a cliff.”  Hasen’s study revealed that between 2001-12, Congress managed to override only 2.8 cases per cycle, far fewer than Eskridge's findings of an average of twelve overrides in every two-year congressional cycle between 1975-1990.  In his article, as well in a SCOTUSblog post describing his findings, Hasen speculated that the “dialogue” between the Court and Congress may be coming to an end. Not so fast, says Eskridge.  Eskridge and his co-author, Matthew Christiansen, have published a new empirical study of congressional overrides in which they take issue with some of Hasen’s data and conclude that reports of the Court-Congress dialogue's death may have been greatly exaggerated.

By on May 2, 2014 at 4:02 pm
The Supreme Court has a steady diet of constitutional tort cases, in which plaintiffs seek money damages for public officials’ claimed violations of their constitutional rights. This Term is no exception – Wood v. Moss, Plumhoff v. Rickard, and Lane v. Franks are all constitutional tort cases. Like all tort cases, the purpose of allowing such litigation is both to compensate plaintiffs for their injuries and to deter behavior in the future -- the latter being particularly important when it comes to protecting constitutional rights. But a new article by Professor Joanna Schwartz on the widespread indemnification of police officers raises questions about whether these lawsuits actually do serve a deterrent function, and also casts some doubts on the purpose of the qualified immunity doctrine that courts employ to protect public employees.

By on Apr 9, 2014 at 12:48 pm
750px-Utah_State_Prison_Wasatch_Facility[1] Legal scholars spend lots of time parsing Supreme Court opinions, but rarely stop to consider whether the Court’s decisions are implemented as intended.  In a recent essay, Cara Drinan takes a hard look at state practices in the wake of the Supreme Court’s blockbuster decisions in Graham v. Florida and Miller v. Alabama.  In Graham, the Court held that the Eighth Amendment prohibits courts from sentencing a juvenile to life without parole for non-homicide offenses, and in Miller the Court declared that even juveniles convicted of homicide must receive an individualized sentencing hearing at which their youth and other mitigating factors are taken into account before than can be sentenced to life without parole.  Drinan’s essay examines the states’ reactions to these decisions and concludes that many states continue to sentence juveniles to thirty or more years in jail, even for non-homicide offenses, and mostly without the sort of individualized assessment the Court concluded was constitutionally required.

By on Mar 7, 2014 at 4:21 pm
Legal academics are playing an unusually prominent role in Halliburton Co. v. Erica P. John Fund, Inc., argued on Wednesday.  At issue is whether the Court should rethink its approach to securities class actions established in Basic Inc. v. Levinson, and, if so, what the new standard should be.  In Basic, a four-Justice majority embraced the “efficient capital markets hypothesis,” which assumes that capital markets integrate all public information into a stock price, and thus that purchase and sale price is always affected by material misrepresentations.  As a result, plaintiffs do not have to prove that they relied on the misrepresentation when they purchased or held the stock, which makes bringing a class action on behalf of securities holders a much easier proposition.  Halliburton, the petitioner in the case, is hoping to put an end to that presumption, replacing it with the requirement that securities plaintiffs first prove that the misrepresentations actually distorted the market price for the stock.  At the very least, Halliburton wants the opportunity to rebut the presumption prior to class certification.  Academic commentators have had a lot to say on this topic, and the Supreme Court appears to be listening.

By on Feb 7, 2014 at 11:21 am
One of the Supreme Court’s (many) unwritten rules is that the Chief Justice selects the author of any opinion in which he is in the majority.  In a recent article in Judicature, Linda Greenhouse analyzes the use of this prerogative by Chief Justice John Roberts and finds that, like many Chief Justices before him, he assigns himself the opinion more often in high-salience cases, and in particular those in which the Court is closely divided.