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.
H/T to Constitutional Law Prof Blog for calling attention to Laurence Tribe’s opinion piece in the NYT, All the Ways a Justice Kavanaugh Would Have to Recuse Himself. Tribe argues that given Judge Kavanaugh’s “intemperate personal attacks on members of the Senate Judiciary Committee, his partisan tirades” last week, and “his stated animosities and observation that ‘what goes around comes around,'” he’d have to recuse himself from a whole lot of cases:
Judge Kavanaugh’s attacks on identifiable groups–Democrats, liberals, “outside left-wing opposition groups” and those angry “about President Trump and the 2016 election” or seeking “revenge on behalf of the Clintons”–render it inconceivable that he would “administer justice without respect to persons,” as a Supreme Court justice must swear to do, when groups like Planned Parenthood, the NRDC Action Fund, the NAACP Legal Defense Fund, NARAL Pro-Choice America or the American Civil Liberties Union appear as parties or file briefs on behalf of plaintiffs and defendants.
More than 2,400 law professors signed on to a letter saying that then Supreme Court nominee Brett M. Kavanaugh displayed a lack of judicial restraint at a Senate confirmation hearing — behavior that would be disqualifying for any court nominee. From the letter which was published by the New York Times as an opinion piece:
Around the Country Judicial temperament is one of the most important qualities of a judge. As the Congressional Research Service explains, to be a judge requires that an individual have “a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result.” The concern for judicial temperament dates back to our founding; in Federalist Paper 78, entitled “Judges as Guardians of the Constitution,” Alexander Hamilton expressed the need for “the integrity and moderation of the judiciary.”
We are law professors who teach, research, and write about the judicial institutions of this country. Many of us appear in state and federal court, and our work means that we will continue to do so, including before the United States Supreme Court. We regret that we feel compelled to write to you to provide our views that at the Senate hearings on Thursday, September 28, 2018, the Honorable Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.
The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners. Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators.
From The Supreme Court’s Overruling of Constitutional Precedent (R45319 Sept. 24, 2018): “How the Court uses precedent to decide controversial issues has prompted debate over whether the Court should follow rules identified in prior decisions or overrule them. The Court’s treatment of precedent implicates longstanding questions about how the Court can maintain stability in the law by adhering to precedent under the doctrine of stare decisis while correcting decisions that rest on faulty reasoning, unworkable standards, abandoned legal doctrines, or outdated factual assumptions.”
Coming up in October, the Supreme Court starts a new term and hears new cases. The Court has thus far accepted 38 cases for review. Supreme Court of the United States October Term 2018 by the Supreme Court Institute at Georgetown Law provides an excellent preview. See also SCOTUSblog.
Supreme Court October Term 2017: A Review of Selected Major Rulings (R45316, Sept. 19, 2018) reviews Epic Systems Corp. v. Lewis, Carpenter v. United States, Murphy v. NCAA, Janus v. American Federation of State, County, and Municipal Employees, NIFLA v. Becerra, Trump v. Hawaii and Lucia v. SEC
Yesterday, CNN published the text of the letter Christine Blasey Ford wrote to Sen. Dianne Feinstein detailing an event in which she accuses Supreme Court nominee Brett Kavanaugh of sexual misconduct. Here’s the text. — Joe
From Carolyn Shapiro, What Members of Congress Say About the Supreme Court and Why It Matters, 93 Chicago-Kent Law Review ___ (2018):
Republican and Democratic senators took strikingly different approaches to Justice Neil Gorsuch’s confirmation hearing. Republicans focused on judicial process – what judges are supposed to do, how they are constrained, and the significance of the constitutional separation of powers – evoking rhetoric long used by the political right. Democrats, by contrast, focused primarily on case outcomes, complaining, for example, that Gorsuch favored “the big guy” over “the little guy” in cases he decided as a judge on the Tenth Circuit. This Article critiques the Democrats’ failure to discuss judicial process and to promote their own affirmative vision of the judiciary and the Constitution. A process-focused critique of Gorsuch’s jurisprudence could have, for example, challenged his claims that textualism necessarily constrains judges and is required by the separation of powers, and it could have given lie to the claims that judging is no more than mechanically “following the law.” Such a critique need not have ignored the real-world implications of Gorsuch’s jurisprudence and indeed could have demonstrated how his approach can undermine congressional efforts to protect ordinary people. Process language would also have allowed Democrats to use discussions of iconic cases like Brown v. Board of Education to demonstrate their commitment to the Constitution’s promises of equality and liberty and their expectation that any Supreme Court Justice embrace those principles. In future, Democrats should use confirmation hearings not only as an opportunity to question the nominee, but also as a chance to articulate their constitutional vision to the American people. The political right has shown how powerful this strategy can be. The political left should do the same.