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Academic Round-up

By on Oct 21, 2016 at 11:21 am
Kristen Eichensehr is an assistant professor of law at the UCLA School of Law. Last term, in RJR Nabisco, Inc. v. European Community, the Supreme Court considered whether the Racketeer Influenced and Corrupt Organizations Act applies extraterritorially, or outside the borders of the United States. The European Community and 26 of its member states sued RJR and related entities, alleging that RJR engaged in racketeering activity that injured the plaintiff countries by, for example, harming their state-owned cigarette businesses. The court held that while RICO’s substantive provisions overcome the presumption against extraterritoriality, RICO’s private right-of-action provision in 18 U.S.C. § 1964(c) does not. Justice Samuel Alito’s opinion for the court highlighted how providing a private right of action under RICO for injuries suffered outside the United States could cause “international friction.” To support his fear of international discord, Alito cited amicus, or “friend of the court,” briefs that the plaintiff countries had filed in earlier Supreme Court cases to object to extraterritorial application of U.S. antitrust and securities laws.

By on Oct 18, 2016 at 10:02 am
Last week, the Supreme Court issued a summary reversal to enforce its own clear and on-point precedent. In doing so, the court reminded the lower courts of how authoritative it is. For instance, the court intoned that “it is this Court’s prerogative alone to overrule one of its precedents” and that those precedents “bound” the lower court whose decision was under review. The summary reversal fits a familiar picture of vertical “stare decisis,” in which the court issues formal precedents that lower courts are absolutely obliged to follow – and absolutely may not overrule. There’s something undeniably right about that point of view. After all, lower courts don’t often declare that they’ve simply rejected or overruled the Supreme Court’s decisions. And many lower-court decisions are replete with claims of faithful adherence to higher-court precedent. When dissenting judges say that lower-court majorities haven’t followed Supreme Court precedent, they’re throwing shade.

By on Sep 30, 2016 at 10:38 am
How closely should courts scrutinize the purpose and effect of state legislation regulating abortion? Linda Greenhouse and Reva Siegel addressed that issue at length in an article published shortly before the Supreme Court struck down a Texas statute regulating abortion in Whole Woman’s Health v. Hellerstedt. Now that the court has spoken, they have written a follow-up essay explaining that the decision could “reshape the abortion conflict” by changing the way courts balance the benefits and burdens of state laws regulating abortion. Most significantly, they argue that the court's decision casts constitutional doubt on a host of other types of abortion regulation, such as laws prohibiting the use of telemedicine for non-surgical abortions and laws requiring abortion providers to give state inspectors access to patient records.

By on Sep 20, 2016 at 11:05 am
Do the Supreme Court’s constitutional cases turn on questions of law or fact? In Supreme Facts: The Prevalence and Justification of Social Facts in Landmark Decisions of the Supreme Court, political scientists Morgan Marietta and Tyler Farley examine that question. Marietta and Farley studied a hundred of the most important Supreme Court constitutional cases and discovered that 59 of the decisions turn in part on the Court’s view of “social facts.” The authors define “social facts” (also known as “legislative facts”) as generalized propositions about how the world works that are not specific to a particular case, such as whether sexual orientation is innate, or racial minorities continue to face obstacles to voting in southern states, or abortions are psychologically harmful to the women who get them. Their research suggests that such factual questions influence the Court as much as or more than the text of the Constitution and theories of constitutional interpretation, and yet the Court’s method of deciding these questions has received far less scrutiny.

By on Jun 14, 2016 at 10:15 am
The Supreme Court grants only a small fraction of the thousands of cert. petitions filed ever year.  In a recent article, political scientists Adam Feldman and Alexander Kappner analyzed 93,000 petitions for certiorari filed between the October Term 2001 and the start of the October Term 2015 to determine which factors make it more likely the Court will grant cert.  Although Feldman and Kappner are not the first to look closely into this question, their analysis is the most comprehensive recent study of the Roberts Court’s practices.  And for those who follow the Supreme Court bar – the group of specialists who increasingly dominate briefing and oral arguments at the Court – Feldman and Kappner’s data provides an interesting breakdown of these high-powered lawyers' success rates at the cert. stage.

By on Apr 14, 2016 at 11:29 am
Next Monday the Court will hear argument in United States v. Texas, in which Texas and twenty-five other states are challenging the Obama administration’s initiatives deferring removal of millions of unauthorized immigrants.  Yet one of the most important issues in the case – whether Texas has standing to challenge these initiatives – has nothing to do with immigration law.  The question of when and whether states have standing to sue the United States to challenge executive branch enforcement policies has cropped up frequently over the last decade in cases concerning federal environmental policies, the Affordable Care Act, and federal disaster relief, among others.  This case gives the Court an opportunity to settle questions about the role of the states (and thus the courts) in monitoring federal law enforcement policies.

By on Apr 7, 2016 at 9:49 am
Maureen Johnson is an Associate Clinical Professor at Loyola Law School, Los Angeles.  She previously practiced at Mayer, Brown & Platt and Kaye Scholer, LLP. Just three weeks ago, Chief Judge Merrick Garland stood on the steps of the Rose Garden graciously and humbly accepting President Barack Obama’s nomination to the Supreme Court.  Toward the end of his speech, Garland repeated the catchphrase that we have come to expect from Supreme Court nominees –  namely, that emotion will play no role in judicial decision-making.  As Garland eloquently put it: People must be confident that a judge’s decisions are determined by the law, and only the law. . . .  He or she must put aside his personal views or preferences, and follow the law — not make it.

By on Apr 1, 2016 at 11:12 am
Ryan C. Black is Associate Professor in the Department of Political Science at Michigan State University. Ryan J. Owens is Professor of Political Science in the Department of Political Science at the University of Wisconsin-Madison. Supreme Court vacancies cause ambitious federal appellate judges to change their behavior. Court watchers, policymakers, and scholars should care about that. The president’s recent nomination of Judge Merrick Garland to the United States Supreme Court has generated a substantial amount of news coverage across a range of important factors. First, of course, is the Senate’s decision not to hold hearings on Garland’s nomination. Second is Garland’s age. He is considerably older than the average nominee to the Supreme Court. Garland was sixty-three when nominated, making him the third-oldest nominee since 1937. Third is the fact that Garland’s nomination fails to motivate key political constituencies. Garland’s (assumed) rejection by the Senate may be unlikely to motivate any particular constituency the Democrats need to win the White House in 2016.

By on Mar 25, 2016 at 9:26 am
Lori A. Ringhand is Associate Dean for Academic Affairs and J. Alton Hosch Professor of Law at the University of Georgia School of Law. Paul M. Collins, Jr. is Associate Professor of Legal Studies and Director of Legal Studies at the University of Massachusetts Amherst. The Senate Judiciary Committee hearings on Supreme Court nominations have become an important and highly visible part of the confirmation process. We have become accustomed to watching the senators and nominees participate in an exchange of ideas about the role of the Court and the Constitution in American life. Over the years, these exchanges – done under oath and in full public view – have become an important forum for democratic engagement with constitutional decision-making.

By on Mar 24, 2016 at 3:52 pm
Just a few weeks ago, Justice Clarence Thomas asked a question from the bench for the first time in over a decade.  The event received front-page coverage in The New York Times, and it also spurred broader questions about the role of oral argument before the U.S. Supreme Court. Does it typically affect the outcome? Do Justices use the argument primarily to get answers from advocates, or to influence each other? Has oral argument changed over the years? Legal scholars and political scientists have tried to answer some of these questions through empirical analysis of the arguments, review of the Justices’ personal papers after their retirement, and study of the correlation between the experience of the advocate and the outcome of the case.