From the update for When Does the Government Have to Disclose Private Business Information in its Possession? (LSB10294, updated June 25, 2019):
“On June 24, 2019, the Supreme Court issued its decision in FMI v. Argus Leader Media concerning when commercial and financial information may be withheld from disclosure by the government as confidential under Exemption 4 of the Freedom of Information Act (FIOA). The Court, in an opinion authored by Justice Gorsuch (and joined by Chief Justice Roberts and Justices Alito, Kagan, Kavanaugh, and Thomas), held that information is “confidential” under Exemption 4 “[a]t least” when it is (1) “customarily and actually treated as private by its owner” and (2) “provided to the government under an assurance of privacy.” The Supreme Court did not, however, define the precise boundaries of its new test.”
From the abstract for Joseph Scott Miller, U.S. Supreme Court I.P. Cases, 1810-2018: Measuring & Mapping the Citation Networks (June 7, 2019):
Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It goes deeper than existing studies of judicial citation networks by focusing on a topically defined subnetwork. It goes further than existing studies by analyzing, in addition to basic citation networks, a time series of co-citation networks—using techniques developed within bibliometrics, for mapping a scholarly field’s conceptual terrain, to track and describe doctrinal change. Emerging bottom up from the Court’s citations, the co-citation map charted here reveals, surprisingly, a core of antitrust and patent-misuse cases (especially from the 1940s) exerting significant influence on i.p. doctrine.
In Gamble v. United States, 17-646, the Supreme Court, 7-2, upheld the longstanding legal principle known as dual-sovereignty. Under the dual-sovereignty doctrine, two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns. Read the June 17, 2019 opinion here. See also SCOTUSblog.
From the blurb for John Paul Stevens, The Making of a Justice: Reflections on My First 94 Year (May 14, 2019):
When Justice John Paul Stevens retired from the Supreme Court of the United States in 2010, he left a legacy of service unequaled in the history of the Court. During his thirty-four-year tenure, Justice Stevens was a prolific writer, authoring in total more than 1000 opinions. In THE MAKING OF A JUSTICE, John Paul Stevens recounts the first ninety-four years of his extraordinary life, offering an intimate and illuminating account of his service on the nation’s highest court.
Appointed by President Gerald Ford and eventually retiring during President Obama’s first term, Justice Stevens has been witness to, and an integral part of, landmark changes in American society.
With stories of growing up in Chicago, his work as a naval traffic analyst at Pearl Harbor during World War II, and his early days in private practice, as well as a behind-the-scenes look at some of the most important Supreme Court decisions over the last four decades, THE MAKING OF A JUSTICE offers a warm and fascinating account of Justice Stevens’ unique and transformative American life.This comprehensive memoir is a must read for those trying to better understand our country and the Constitution.
From the abstract for Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma 124 Harv. L. Rev. ___ forthcoming 2019:
The past few years have not been good for the Supreme Court. In the wake of divisive confirmation battles, there are cries that the Court is no longer a “legitimate” institution and growing calls for court-curbing measures like jurisdiction stripping, impeachment, and—most commonly—“packing” the Court with additional members. This Essay, which reviews Richard Fallon’s Law and Legitimacy in the Supreme Court, takes stock of these attacks on the Court. Building on Fallon’s work, as well as political science research and history, the Essay argues that in politically charged moments like today, the Justices may face a dilemma. In order to preserve the Court’s public reputation (its sociological legitimacy)—and thereby stave off court-curbing measures—one or more Justices may feel pressure to modify their constitutional jurisprudence. That is, some Justices may sacrifice the legal legitimacy of their decisions in order to save the Court as a whole. This recurring tension—between sociological and legal legitimacy—is the heart of the Supreme Court’s legitimacy dilemma.
From the abstract for Benjamin Pomerance, Inside a House Divided: Recent Alliances on the United States Supreme Court, Albany Law Review, Vol. 81, No. 2, 2018:
When the United States Supreme Court re-convened at the beginning of October 2016, observers focused on the absence of Justice Antonin Scalia, the recently deceased spokesperson for the Court’s conservative wing. Attention also centered on the political standoff that resulted from President Barack Obama’s attempt to replace Scalia with Judge Merrick Garland, a battle that ended with the Senate refusing to vote on the nominee. By contrast, commentators paid little attention to the docket of cases that this shorthanded Court would consider.
This article fills this gap, examining the jurisprudential and political impacts of what turned out to be an extremely eventful and revealing term for the Court. It studies the work of the eight-member Court, a group that reached consensus at a record rate and handed down more unanimous decisions than had been seen from any term in recent memory. It examines the shifts that occurred after Justice Neil Gorsuch joined the Court’s bench during this term, sparking a return to the political partisanship in divided cases that has more typically characterized the Court’s recent behavior. It studies the alliances formed among the justices of the Court during this term, revealing some surprising partnerships in both criminal and civil decisions. Perhaps most revealingly of all, it demonstrates the possible arrival of a new “swing vote” on the Court: Chief Justice John Roberts, a jurist whose voting record crossed party lines throughout this term, perhaps setting himself up to someday replace Justice Anthony Kennedy as the least-predictable voter on the federal judiciary’s highest bench.
From the blurb for Neal Devins & Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford UP, 2019):
As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of. The evidence is strong: Justices take cues primarily from the people who are closest to them and whose approval they care most about: political, social, and professional elites. In an era of strong partisan polarization, elite social networks are largely bifurcated by partisan and ideological loyalties, and the Justices reflect that division. The result is a Court in which the Justices’ ideological stances reflect the dominant views in the appointing president’s party. Justices such as Clarence Thomas and Ruth Bader Ginsburg live largely in a milieu populated by like-minded elites. Today’s partisanship on the Court also stems from the emergence of conservative legal networks such as the Federalist Society, that reinforce the conservative leanings of Republican appointees. For the Warren and Burger Courts, elite social networks were dominated by liberal elites and not divided by political party or ideology. A fascinating examination of the factors that shape decision-making, The Company They Keep will reshape our understanding of how political polarization occurs on the contemporary Supreme Court.
H/T to Legal Theory Blog for calling attention to Benjamin Pomerance’s Justices Denied: The Peculiar History of Rejected United States Supreme Court Nominees (Albany Law Review, Vol. 80, No. 2, 2017). Here’s the abstract:
Every nominee to the United States Supreme Court possesses the potential to change history. It is therefore instructive, from both a historical perspective and a political perspective, to examine the nominees who reached the United States Senate, only to be voted down by the Senators. In some cases, the rejections seem understandable on the basis of merit (or lack thereof); in other situations, these rejections appear to be little more than a partisan attack. In every situation, however, the story of the rejected jurist and the context of his rejection by the Senate offers a compelling window into this era of American history, as well as a set of lessons that remain applicable to Supreme Court nominations today. From John Rutledge to Robert Bork, this article provides the stories of these Court nominees whom the Senate rejected, concluding with several revealing patterns and trends that today’s leaders would be wise not to ignore.
Tonja Jacobi & Matthew Sag offer a brief history of how SCOTUS argument transcripts and recordings became available for research purposes here.
Chief Justice John Roberts released his annual report on the federal judiciary on Dec. 31st, focusing on the judiciary’s response to allegations of sexual misconduct in the workplace but remaining silent on judicial independence. Read the report here.
On SCOTUSblog, Stephen Wermiel writes “Consider the legacy of President George H.W. Bush. Although he served only one four-year-term in the Oval Office, Bush, who died on November 30, had a profound impact on the Supreme Court. He appointed two justices, each of whom made a significant difference in the direction of the Supreme Court and the shape of constitutional law, and a solicitor general who weighed in strongly for the federal government on several controversial issues.” For more, see SCOTUS for law students: President George H.W. Bush’s Supreme Court legacy.
From the abstract for Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, Vanderbilt Law Research Paper Forthcoming:
The consequences of Brett Kavanaugh’s confirmation to replace Justice Anthony Kennedy on the Supreme Court are seismic. The new conservative majority that Kavanaugh completes represents a stunning victory for the Republican party after decades of effort by the conservative legal movement. The result is a Supreme Court whose justices—on both sides—are likely to vote along party lines more consistently than ever before in American history. That development presents a grave threat to the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court to render impartial justice, the Court’s ability to reach settlements of important questions that all Americans can live with is serious jeopardy. Raising the stakes even higher, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further tit-for-tat escalation that would leave the Court’s image, and the rule of law, badly damaged.
The coming crisis can be stopped. But preserving the Court’s legitimacy as an institution above politics will require a complete rethinking of how the Court works and how the Justices are chosen. To save what is good about the Court, we must reject and rethink much of how the Court has operated for more than two centuries. In this Essay, we outline a framework for thinking about saving the Supreme Court, evaluate existing proposals, and offer two distinct reform proposals of our own, which we call the Supreme Court Lottery and the Balanced Court. Whether policymakers adopt these precise proposals or not, however, it is imperative that they search for some kind of reforms along these lines. Saving the Court—by transforming the Court—is our best hope.
From the abstract for Neal Devins & Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, Supreme Court Review vol. 2016:
Starting in 2010 the Supreme Court has divided into two partisan ideological blocs; all the Court’s Democratic appointees are liberal and all its Republicans are conservative. Correspondingly, since 1990 there has been a dramatic increase in the ideological gap between Democratic and Republican appointees. In this article we make use of original empirical research to establish that this partisan division is unprecedented in the Court’s history, and we undertake a systematic analysis of how it came about. We show that it is linked to growing partisan polarization among political elites, polarization that has shaped the Court in multiple ways. Presidents — for the first time ever — make ideology the dominant factor in appointing Justices. The Senate confirmation process too pays increasing attention to ideology, including party line votes that block the consideration of judicial nominees. Equally significant, the sorting of elites into the two parties on the basis of ideology has greatly reduced the numbers of conservative Democrats and liberal Republicans who might be selected as Justices.
Finally, political elites that tended to lean in a moderate-to-liberal direction during the 1960s through 1980s have become polarized along ideological lines. As we show through original research on the voting patterns of Justices, Justices who once might have been drawn toward moderation are increasingly reinforced in their liberal or conservative orientations. One key reason is that the rise of the conservative legal network has worked against the “drift” of Republican appointees toward more liberal positions that was common a few decades ago. This analysis indicates that the current partisan division on the Court is not a temporary phenomenon; rather, it is likely to continue as long as the current partisan polarization continues.
ATL’s SCOTUS Power Index 2018 rates Supreme Court justices based on the career success of their former clerks with extra weight given for leadership positions in private practice, government and academia. Interesting take on employment outcomes based on SCOTUS training.
Here’s the abstract for Ben Johnson & Logan Strother, Does the Supreme Court Respond to Public Opinion? (Oct. 30, 2018):
A large body of literature asks whether the Supreme Court responds to public opinion. Most studies report significant judicial responsiveness to public preferences under some varying conditions. In this paper we show, contrary to prevailing belief, that there is actually no consensus in the literature that the Court is responsive. More importantly, we demonstrate there is no evidence of a meaningful relationship between public opinion and Supreme Court outputs in more than 50 years. The typical finding of a relationship is driven entirely by a correlation between liberal mood and liberal outputs during the Warren Court era.
From the abstract for Judicial Conflicts and Voting Agreement: Evidence from Interruptions at Oral Argument, Boston College Law Review, Forthcoming, by Tonja Jacobi and Kyle Rozema:
This Article asks whether observable conflicts between judges in a case—interruptions between Supreme Court justices during oral arguments—are associated with future breakdowns in voting agreement among the judges in the case. To do so, we built a dataset containing justice-to-justice interruptions in cases between 1960 to 2015, and employ a framework for measuring case outcomes that treats the outcomes as a set of agreements and disagreements between pairs of justices. We find that on average a judicial pair is 7 percent less likely to vote together in a case for each interruption that occurs in the case between the judicial pair in the oral argument. While a conflict between judges that leads to both interruptions and a breakdown in voting of the coalition is one possible explanation of the finding, it is not the only; an interruption could instead just reflect something about cases that are more prone to disagreement or something about the way the interrupting justice views the case. We set out an empirical strategy that isolates the conflict explanation from these and other possible explanations and find that the conflict inherent in interruptions explains over half of the relationship between interruptions and disagreement.
From the abstract for The New Oral Argument: Justices as Advocates, Notre Dame Law Review (Forthcoming 2019), by Tonja Jacobi and Matthew Sag:
This Article conducts a comprehensive empirical inquiry of 55 years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.
Stephen McAllister got interested in the family trees of Supreme Court Justices after finding three Justice-to-Justice family relations. “I began wondering whether there were other familial relations — either between Justices themselves or between Justices and other prominent people — that might be interesting to explore.” For the results of his research see the Green Bag article, The Supreme Court and Superman: The Justices and the Famous People in Their Family Trees. Superman?! Read more about it.
Randy J. Kozel has posted Special Justifications, 33 Constitutional Commentary 471 (2018), on SSRN. Here is the abstract:
The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices have described as fundamental.
Chief Justice Roberts has referred 15 complaints related to statements Justice Kavanaugh made during his confirmation hearing to the 10th Circuit for investigation according to the Washington Post. The allegations center on whether Kavanaugh was dishonest and lacked judicial temperament during his Senate testimony. These complaints were initially received by the U.S. Court of Appeals prior to Kavanaugh’s seating on the Supreme Court. Chief Judge Merrick Garland recused himself from the matter. Here’s the text of the letter from Chief Justice Roberts referring Kavanaugh complaints to the 10th Circuit.