Academic highlight: Hasen on political polarization and the Supreme Court

Academic highlight: Hasen on political polarization and the Supreme CourtCommon sense tells us that increased political polarization affects the U.S. Supreme Court as well as the political branches, and now legal scholars have the data to prove it. In a forthcoming paper, “Polarization and the Judiciary,” Richard Hasen surveys the academic literature on the subject, and then draws some conclusions of his own. As […]

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Academic highlight: Hasen on political polarization and the Supreme Court

Common sense tells us that increased political polarization affects the U.S. Supreme Court as well as the political branches, and now legal scholars have the data to prove it. In a forthcoming paper, “Polarization and the Judiciary,” Richard Hasen surveys the academic literature on the subject, and then draws some conclusions of his own. As Hasen explains, the research shows that polarization influences the appointment and confirmation process, along with the cases the court accepts and how it decides them, as well as the public’s perception of the court and its decisions. Although polarization has many negative consequences for the courts, it also empowers them: When the political branches are gridlocked, the courts, and ultimately the Supreme Court, have the last word on contentious policy questions such as immigration, limits on executive power and access to abortion.

Polarization’s effect on judicial selection is clear. As Hasen explains, recent academic research demonstrates that both Republican and Democratic presidents have increasingly focused on ideology when selecting justices for the court. Both parties now also rely on outside interest groups to assist in selecting ideologically appropriate jurists. As of November 2017, 17 of President Donald Trump’s 18 federal appeals court nominees had connections to the Federalist Society, and the Federalist Society has screened lists of potential Supreme Court nominees.

The Senate’s role has also evolved in response to political polarization. Conservative Justice Antonin Scalia was confirmed by a vote of 98-0 in 1986, and liberal Justice Ruth Bader Ginsburg by a vote of 96-3 in 1993. In these instances, many senators from the party opposing the president’s voted to confirm his nominee. Indeed, the filibuster rules then in place required that at least a few do so for the nominee to be confirmed — tempering the president’s choice of a candidate from the outset. Confirmation votes have steadily grown closer over the last 20 years: The vote to seat Justice Samuel Alito was 85-41 in 2005, and Justice Elena Kagan’s was 63-37 in 2010. Now, with the abolition of the filibuster and the increased focus on ideology, Senate confirmation votes almost perfectly track party lines, as the confirmations of both Justices Neil Gorsuch (54-45) and Brett Kavanaugh (50-48) demonstrate.

Polarization has also affected the Supreme Court’s case selection and decisions, and Hasen summarizes a number of studies that illustrate this phenomenon. Twenty years ago, the justices’ positions on the legal questions before them did not always align with the preferences of the political party of the president who appointed them. So, for example, Justice Byron White, who was appointed by Democratic President John F. Kennedy, voted against abortion rights, while Justice John Paul Stevens, appointed by Republican President Gerald R. Ford, voted in favor. As Hasen notes, today “[j]ustices are more likely to be ideologically in line with the interests of their nominating president’s party and less likely to drift ideologically (or ‘evolve’).” The result is a higher percentage of 5-4 decisions over the last few decades, particularly in cases involving high-salience political issues, such as abortion, gun rights and same sex marriage. (There is also a higher percentage of unanimous decisions, but that reinforces the point, because those decisions tend to involve technical legal questions that do not divide the political parties.)

Hasen’s article reviews the recent academic literature on how and why ideology affects the justices, which can be more nuanced than simply correlating the justices’ votes with the party of the president who appointed them. He cites Lawrence Baum’s 2017 book, “Ideology in the Supreme Court,” which argues that it is “likely that identification as a conservative or liberal is a significant element in the social identities of many and perhaps most justices,” influencing their voting. Baum posits that this social identification is further deepened by the politically polarized lawyers who now regularly appear before the court. It seems that polarization has affected every aspect of the judicial process.

Indeed, polarization has even transformed oral argument. Hasen references a forthcoming article by Tonja Jacobi and Matthew Sag analyzing 55 years of oral arguments and concluding that today the “justices are behaving like advocates,” not jurists. Through empirical evidence and anecdotal examples, Jacobi and Sag show that the justices no longer use oral argument primarily to gather information, but rather to argue in favor of the position they support. As compared to the past, justices today are more likely to make comments than ask questions, direct their comments to the counsel with whom they disagree and their questions to the counsel whom they support, intervene to “rescue” counsel whose position they support, and direct comments and questions to their colleagues rather than the lawyers before them. Jacobi and Sag found that the shift in the justices’ approach to oral argument began in 1995, which they attribute to the increase in political polarization that has occurred over the last 20 years.

One illuminating example of this behavior came last year in the oral argument in Gill v. Whitford, a partisan-gerrymandering challenge to Wisconsin’s state legislative maps. Alito began by asking the challengers’ attorney, Paul Smith, if he could “say something,” before quickly correcting himself to note that he wanted to “ask something.” Alito then spoke for two and a half minutes about his views on the case, after which Smith boldly asked, “Is there a question there, Your Honor?” Jacobi and Sag provide examples of similar behavior from Justice Sonia Sotomayor and several other justices.

Finally, and not surprisingly, studies show that polarization has affected the public’s perception of the Supreme Court. Although approval of the court has generally been higher than that of other branches of the government, that number has fallen in recent years. A Gallup poll showed that public approval fell from 62 percent in 2001 to 49 percent in 2017. Hasen quotes from a 2017 article by Sofi Sinozich, which surveys the data and concludes, “Americans today … see decisions as political events and see the justices as political (that is, self-interested and strategic) actors.”

And yet, even as political polarization undermines the public’s perception of the Supreme Court, it increases the court’s power in the political system. Hasen cites recent studies showing that Congress today is far less likely to override the Supreme Court’s decisions about the meaning of its statutes than it did in the past — likely because Congress is unable to act. As Hasen explains, “[g]ridlock due to partisan competition in the political branches creates space for the courts (especially the Supreme Court) to move the law toward their preferences without provoking a political counterreaction.” For better or worse, in this politically polarized moment, it is now the court rather than Congress that often has the last word.

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Forthcoming paper on influence of law clerks recalls Rehnquist article from 1957

Forthcoming paper on influence of law clerks recalls Rehnquist article from 1957The specter of the law clerk as a legal Rasputin, exerting an important influence on the cases actually decided by the Court, may be discarded at once. … It is unreasonable to suppose that a lawyer in middle age or older, of sufficient eminence in some walk of life to be appointed as one of […]

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Forthcoming paper on influence of law clerks recalls Rehnquist article from 1957

The specter of the law clerk as a legal Rasputin, exerting an important influence on the cases actually decided by the Court, may be discarded at once. … It is unreasonable to suppose that a lawyer in middle age or older, of sufficient eminence in some walk of life to be appointed as one of nine judges of the world’s most powerful court, would consciously abandon his own views as to what is right and what is wrong in the law because a stripling clerk just graduated from law school tells him to.

William Rehnquist – writing in a 1957 issue of U.S. News & World Report, four years after clerking for Justice Robert Jackson and 14 years before becoming a justice himself – called this the “common-sense view of the relationship between Justice and clerk” and noted the “complete absence of any known evidence of such influence.”

A paper recently accepted for publication in the Journal of Law, Economics, and Organization – “Legal Rasputins? Law Clerk Influence on Voting at the U.S. Supreme Court,” which takes Rehnquist’s quote as an epigraph – claims to offer the evidence that Rehnquist found lacking. (The paper looks at cases decided between 1960 and 2009, a period after Rehnquist’s clerkship from February 1952 to June 1953.)

Authors Adam Bonica, Adam Chilton, Jacob Goldin, Kyle Rozema and Maya Sen “find that clerks exert a modest but statistically significant effect on how justices vote”: “To interpret the magnitude of this effect, our estimate suggests that, on average, a justice would cast approximately 4% more conservative votes in a term when employing his or her most conservative clerks, as compared to a term in which the justice employs his or her most liberal clerks.”

A four percent swing might not seem like much, but it could amount to three or four votes in an 80-case term; “that’s not an insignificant effect in terms of the sheer magnitude of the findings,” Sen observes. Although recent terms have actually had fewer than 80 cases, many terms in the studied time period had more.

The authors suggest that “[t]here are at least two pathways for how such influence could occur: delegation and persuasion,” which need not be mutually exclusive. Because the authors find “substantially larger effects in cases that are higher profile (17%), cases that are legally significant (22%), and cases in which the justices are more evenly divided (12%),” as opposed to lower-profile cases that a justice might be more likely to delegate to a clerk, the authors conclude that clerks primarily influence a justice’s voting through persuasion. Sen suggests that in major cases law clerks might be more interested in speaking up and expressing personal opinions.

The authors note that anecdotally, “[i]nterviews with former clerks certainly suggest that clerks exert a significant degree of influence over their justices in specific cases,” but caution that “this view may be colored by clerks’ exaggerated sense of their own importance in the process or may represent aberrations from the norm.” At least one former clerk – Professor Daniel Epps of Washington University Law, who clerked for Justice Anthony Kennedy from 2009-2010 – nevertheless considers the study’s finding “a bit surprising.” Epps shares Sen’s “intuition that the big cases are ones in which there are more discussions among the justice and the clerks—and thus more possibility for persuasion.” But he also senses that “those are the cases where the justices have the strongest intuitions already, and thus might be least susceptible to persuasion.”

As with any empirical study, this one relies on contestable factors. For example, the authors measure clerk ideology based on political donations. As another political scientist who studies the court, Adam Feldman of Empirical SCOTUS, observes, the hypothesis that donations are an accurate proxy for ideology “seems sensible,” but other intervening factors may influence choices about where to direct contributions.

Another methodological hurdle is causal: Do clerks influence justices or do justices simply hire like-minded clerks? Sen calls this the “birds of a feather flock together” problem. For this reason, it’s analytically helpful that justices typically hire clerks one or two terms in advance. If more conservative clerks were hired by a justice during the same term as their clerkships, a more conservative voting pattern by that justice that year might simply reflect the conservative inclinations of the justice – who decided both who to hire and how to vote – at that time. But because clerks are hired well before their clerkship terms, and assuming (among other things) that justices do not hire with foresight about future changes in their own voting patterns, Sen explains, the authors “can compare justices’ changes in voting from year to year and be reasonably assured that … we are capturing the effect of those clerks in a particular term.”

Returning to Rehnquist

This is not the first academic study to consider the potential influence of law clerks. For example, in a 2011 article in the Cornell Law Review, “Judicial Ghostwriting: Authorship on the Supreme Court,” Jeffrey Rosenthal and Albert Yoon conduct a text analysis of the justices’ opinions and find that variability in their writing styles offers “strong evidence that Justices are increasingly relying on their clerks when writing opinions.”

In his article, Rehnquist acknowledged that “[o]n a couple of occasions each term,” Jackson asked clerks to draft opinions for him, “along lines which he suggested.” Indeed, Rehnquist insisted that the “result reached in these opinions was no less the product of Justice Jackson than those he drafted himself; in literary style, these opinions generally suffered by comparison with those which he had drafted.”

Concurring in Brown v. Allen, a case decided during Rehnquist’s clerkship, Jackson wrote one of his most famous literary lines: “We are not final because we are infallible, but we are infallible only because we are final.” Even as the recent study suggests that “we” in some cases may include influence from clerks, Brown does not appear to be one of those cases, at least for Rehnquist and Jackson. Rehnquist wrote a memo arguing that federal courts should grant habeas petitions involving issues considered by state courts only if the defendant had been denied the right to counsel. That recommendation did not have much “impact” on Jackson, as David Garrow wrote in a 1996 profile of Rehnquist for The New York Times, and the case has become “justly famous among criminal law practitioners as the modern fount of an expansive approach to Federal courts’ habeas jurisdiction.”

Another case in which Rehnquist seems to have been unsuccessful in swaying Jackson’s vote is none other than Brown v. Board of Education. Rehnquist wrote Jackson a memo arguing in favor of the precedent underpinning segregation, the “separate but equal” doctrine established in Plessy v. Ferguson. Jackson, instead, joined a unanimous court in overturning Plessy. Rehnquist’s memo proved controversial during his 1971 nomination to the court and 1986 elevation to chief justice. In both instances, Rehnquist claimed that the memo articulated Jackson’s views, not his.

Both of these decisions may have been part of Rehnquist’s reasons for publishing his 1957 article. As he wrote, “I commit my limited knowledge of the nonconfidential aspects of the system to public print because recent controversy about the Court’s decisions may make it of general interest.”

In that article, Rehnquist did acknowledge that law clerks, himself included, possibly affected the Supreme Court’s “certiorari work” – the process of deciding which of the many requests for review to grant each term — through “unconscious slanting of material”: “I must admit that I was not guiltless on this score.” (Clerk influence on the certiorari docket was outside the scope of the recent study.)

And along with admitting his own guilt, the conservative Rehnquist faulted his generally more liberal peers:

From my observations of two sets of Court clerks during the 1951 and 1952 terms, the political and legal prejudices of the clerks were by no means representative of the country as a whole nor of the Court which they served. … And where such bias did have any effect, because of the political outlook of the group of clerks that I knew, its direction would be to the political “left.”

Rehnquist explained that those “political and legal prejudices of the clerks” included “extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, and great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren.”

Rehnquist’s concern about undue clerk influence does not seem to have abated in the course of his career. “Decades after his U.S. News essay, Chief Justice Rehnquist continued to fear the influence of clerks,” as Adam Liptak wrote for The New York Times in 2008. Liptak pointed to a 1996 memo Rehnquist wrote to his fellow justices in which he expressed concern about a certain practice within the cert pool, a labor-saving device in which a petition is first reviewed by one law clerk for all the participating justices.

Even as clerks are increasingly in the news – from the Heritage Foundation’s now-cancelled “Federal Clerkship Training Academy” to Justice Brett Kavanaugh’s first-ever all-female team of Supreme Court clerks – the role of clerks remains a “perennial topic of interest about which little is known,” as Bonica, Chilton, Goldin, Rozema and Sen write in their introduction. Articles like theirs and Rehnquist’s help to shed more light on this underappreciated aspect of the American judiciary.

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Academic highlight: Greenhouse and Siegel on the past, present and future of Roe v. Wade

Academic highlight: Greenhouse and Siegel on the past, present and future of <em>Roe v. Wade</em>The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wade – the standard position of all recent Republican […]

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Academic highlight: Greenhouse and Siegel on the past, present and future of <em>Roe v. Wade</em>

The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wadethe standard position of all recent Republican nominees for president. Members of the Senate Judiciary Committee questioned Judges Neil Gorsuch and Brett Kavanaugh closely on the matter, and many legal scholars have opined that Roe is at risk of either outright reversal or gradual erosion with the addition of a new justice to the bench. At a time when the future is unknown, it is worth considering Roe’s past.

In “The Unfinished Story of Roe v. Wade,” a chapter in the forthcoming book “Reproductive Rights and Justice Stories” (Melissa Murray, Kate Shaw & Reva Siegel eds.), Linda Greenhouse and Reva Siegel provide a fascinating account of the abortion debate before and after Roe that upends some of our basic assumptions about the politics of abortion. Today, Roe is as much a symbol as a legal precedent. For some, the case exemplifies the Supreme Court’s essential role in protecting freedom and equality for those who lack political power. For others, it is a prime example of judicial overreach, and illustrates the backlash that can result when the court inserts itself in politics. But in Greenhouse and Siegel’s account, the focus on Roe v. Wade overstates the court’s role in the abortion debate. They describe how the views of the public, political parties and religious groups shifted both before and after the court’s decision in Roe, and often independent of it. And they explain that many of the battles took place in state legislatures, not before the nine justices.

Although abortion was not a crime at the time of the Constitution’s ratification, by the late 19th century it was criminalized in every state. Even so, by the middle of the 20th century approximately one in four pregnancies ended in an abortion. Upper-class women were able to obtain abortions relatively safely, but the poor could not, and an estimated 10,000 women died from abortions every year.

Alarmed by these statistics, medical providers were the first to call for reform. Not surprisingly, they sought to give doctors, not pregnant women, the power to decide who could obtain an abortion. In 1970, the American Medical Association authorized its members to perform therapeutic abortions, but only in appropriate cases, and they were told not do so in “mere acquiescence to the patient’s demand.” Only in the 1960s did feminists begin to frame the repeal of laws criminalizing abortion as about “freedom,” “equality” and women’s right to exercise control over their bodies and reproduction — the standard rhetoric of -abortion-rights advocates today.

The movement against abortion looked very different in the years before Roe than it does today. Leaders of the Catholic Church mobilized against reform of abortion laws in the late 1960s, but polls showed that more than half of all Catholics disagreed with the church’s official position. The Republican Party before 1972 was not opposed to abortion, nor were evangelicals, and a significant majority of Americans supported abortion. In a Gallup poll taken in August 1972, 64 percent of Americans agreed with the statement that “abortion should be a matter for decision solely between a woman and her physician,” and significantly more Republicans than Democrats took that view (68 percent of Republicans as compared to 59 percent of Democrats).

Despite broad popular support, reforms stalled in the early 1970s. The New York legislature repealed a reform measure it had enacted two years before (though the governor vetoed the repeal), and reform failed to pass in Michigan. Greenhouse and Siegel attribute these losses to “the ability of a mobilized minority, committed to a single issue and institutionally funded and organized, to thwart reforms that have broad public support.” Stymied by the political process, abortion-rights supporters turned to the courts.

The justices were well aware that public support for abortion was growing ever stronger; Justice Harry Blackmun, the author of Roe v. Wade, kept a copy of the 1972 Gallup poll results in his files. Greenhouse and Siegel suggest that such polls may have influenced the court to issue a broader opinion than it otherwise might have. By a 7-2 vote, the court proclaimed a constitutionally protected right to privacy that entitled women to obtain abortions in the first trimester of pregnancy. The court grounded this right in the Ninth and 14th Amendments and derived it from earlier decisions protecting intimate family choices. Yet the court’s opinion relied more on medical evidence and the role of doctors than on women’s autonomy. As Greenhouse and Siegel explain, that rationale is not surprising considering that the decision came in 1973, before the bulk of the court’s jurisprudence protecting women against discrimination based on sex.

Contrary to the conventional view, Greenhouse and Siegel argue that Roe did not produce a public or political backlash — at least, not immediately. Three years after Roe was decided, public support had only grown. In a February 1976 nationwide survey, 67 percent of respondents agreed that the “right of a woman to have an abortion should be left entirely up to the woman and her doctor.” Nor did abortion appear to be a particularly polarizing or significant issue. At his confirmation hearing in 1975, John Paul Stevens was not asked a single question about abortion.

Having lost before the Supreme Court, abortion opponents shifted the fight to Congress and state legislatures. They succeeded in ending Medicaid funding for abortions and obtaining passage of state and federal laws restricting access to abortion. In 1992, in a challenge to such a law in Pennsylvania, the Supreme Court reaffirmed Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, but it abandoned Roe’s trimester framework for an “undue burden” standard permitting states to regulate abortion. Greenhouse and Siegel observe that in Casey, unlike Roe, the court framed its decision around “[r]espect for the equal citizenship of women” — an argument “barely acknowledged” in Roe.

Casey further opened the door to regulation incrementally cutting back on access to abortion, which has been the focus of much of the abortion-related litigation for the last 25 years. Legal experts expect that trend to speed up once a new justice appointed by Trump joins the court. Gillian Metzger, a professor at Columbia Law School, explained that she does not expect to see Roe and Casey reversed immediately, but “incremental pullback” will mean that “in practice it will become even more difficult, and in some states practically impossible, for women to exercise the right recognized in Roe and Casey of making the ultimate choice of whether or not to bear a child.”

Greenhouse and Siegel do not try to predict the future of Roe and Casey, but their historical account demonstrates that the abortion debate has followed a long and winding road. Over the last 60 years, the arguments made for and against access to abortion, the public’s support for those arguments, and even the parties on either side of the issue have shifted significantly. The Supreme Court has played a role, but it has shared influence with many players in the past, and likely will continue to do so. As Greenhouse and Siegel conclude, “[t]hese are conflicts that law can shape—but cannot settle.”

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Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearingsOn the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that […]

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Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

On the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that may come before them if they are confirmed. At his confirmation hearing, then-Judge Neil Gorsuch cited that rule numerous times as grounds for refusing to answer questions about his views on particular legal issues. After comparing Gorsuch’s responses to those of nominees between 1939 and 2010, including Ruth Bader Ginsburg, Collins and Ringhand found that Gorsuch was the least responsive nominee in decades, and they are worried he is setting a trend.

Neil Gorsuch’s confirmation hearing (Art Lien)

Collins and Ringhand explain that the practice of refusing to respond to certain questions is misattributed to Ginsburg, and in any case tells only half the story. After analyzing a database of confirmation-hearing questions and answers from every hearing between 1939 and 2010, they found that nominees long predating Ginsburg refused to answer questions regarding cases that might come before them. But these same nominees, including Ginsburg, were willing to respond to questions about their support for longstanding precedent that had become a part of the constitutional canon. The authors conclude that the “Ginsburg Rule” is really two rules: First, nominees have consistently refused to answer questions about unresolved legal questions likely to come before the Supreme Court to avoid the appearance of bias and preserve judicial independence; and second, aside from Gorsuch, nominees in the modern era have consistently been willing to confirm their support for well-established Supreme Court precedent.

Nominees’ refusal to answer certain types of questions is as old as the confirmation process itself. In 1939, Justice Felix Frankfurter was the first to undergo public confirmation hearings at which he answered questions under oath. He was also the first to refuse to answer some questions on the grounds that it would be improper to do so. At almost every confirmation hearing since, the nominee has asserted what Collins and Ringhand refer to as a “privilege” to refuse to respond to some questions.

Nominees assert that privilege for two reasons: First, to avoid any appearance of having prejudged an issue that could come before the court; and second, to protect judicial independence by refusing to make promises or commitments to senators on the Judiciary Committee in exchange for confirmation.

Collins and Ringhand agree these concerns are valid, but they argue that another value is at stake in Supreme Court confirmation hearings that cuts in favor of responsiveness, at least to some types of questions. Such hearings provide an opportunity for the senators, and by extension those they represent, to determine whether the nominee deserves a spot on the Supreme Court. The Senate can only serve that role if the nominees answer questions regarding the precedents and doctrines they support.

The authors have studied the confirmation hearings stretching back to Frankfurter’s in 1939 to measure the frequency with which would-be justices refused to answer questions compared to their willingness to give firm views regarding established case law. They analyzed data from the U.S. Supreme Court Confirmation Hearing Database, which contains information about every question and answer at every confirmation hearing from 1939 through 2010, to determine what they label a nominee’s “responsiveness ratio.” (They also incorporated into that dataset information from Gorsuch’s hearing.) The responsiveness ratio is the number of questions a nominee refused to answer on the basis of the so-called Ginsburg Rule compared to the number of questions about doctrine and precedent that the nominee answered. They then ranked all the nominees on this metric to see which ones responded significantly more often than not. They also broke down the areas and issues on which Ginsburg and Gorsuch, respectively, were responsive and on which issues they held back.

Using these metrics, Collins and Ringhand found that Ginsburg refused to respond approximately 10 percent of time — a higher rate than some recent nominees (such as John Roberts, at 6.6 percent), though lower than others (such as William Rehnquist, at 12.2 percent). But she gave firm responses 15.44 percent of the time, putting her at a healthy responsiveness ratio of +5.08. In contrast, Gorsuch asserted the privilege 6.6 percent of the time, but very rarely gave firm answers to any question about doctrine or precedent, including direct questions about the validity of cases such as Brown v. Board of Education and even Marbury v. Madison (though later in his hearing he agreed that case was correctly decided). His response rate was only 0.75 percent, leading his responsiveness ratio to be -5.91, far below the norm set over the last few decades.

Collins and Ringhand are disturbed by Gorsuch’s refusal to affirm even longstanding and well accepted Supreme Court precedent. They fear that if nominees stop taking any positions on previous Supreme Court precedent — even those concerning uncontroversial issues unlikely to come back before the court — the confirmation hearings will lose their value. The nation will also lose an opportunity to determine which previously disputed Supreme Court precedents have become an accepted part of the constitutional canon, and which are still up for debate.

In conclusion, they argue that the future nominee should follow what they call the “Ginsburg Rules,” with an emphasis on the plural. That is, the nominee can and should assert a privilege not to respond to questions about cases or issues that remain controversial, but should also take care to give clear answers to questions about cases that are now accepted as part of the constitutional canon.

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Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme Court

Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme CourtDo Americans continue to support the Supreme Court in the face of frequent criticism, including hostile tweets by the president of the United States? That question is particularly important on the eve of yet another confirmation battle and at the end of a term filled with high-profile cases. A recent NYU Law Review Symposium hosted […]

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Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme Court

Do Americans continue to support the Supreme Court in the face of frequent criticism, including hostile tweets by the president of the United States? That question is particularly important on the eve of yet another confirmation battle and at the end of a term filled with high-profile cases. A recent NYU Law Review Symposium hosted by the Brennan Center for Justice gathered a group of experts to examine the public’s support for the Supreme Court in the face of frequent attacks.

In their contribution, Professors Michael Nelson and James Gibson surveyed a random sample of Americans to determine whether criticism erodes the Supreme Court’s legitimacy and Americans’ support of that institution. Their findings confirmed previous studies showing that the public’s support for the court is strong, and that it dips more when the court is criticized as politicized rather than for making errors of law. To their surprise, however, they found that the public’s perceptions are affected more by criticism voiced by law professors than criticism by the president of the United States.

In a responsive essay, Professor David Fontana cautions that Nelson and Gibson may have “created a false sense of security that the public deeply and durably believes in the Supreme Court.” He does not take issue with their findings that the public supports the court and values judicial independence in the abstract, or that critiques by legal elites can undermine the institution. But his own research shows that support would dissolve when the stakes are high, such as in the aftermath of a terrorist attack. And he points out that their study does not examine whether the president’s pointed attacks on the courts and on specific judges have taken a toll.

Nelson and Gibson set out to test the types of criticism that affect the public’s support for the court. Legitimacy, or “diffuse support” in political science lingo, is defined as “a reservoir of favorable attitudes or good will that helps members accept or tolerate outputs to which they are opposed or the effect of which they see as damaging to their wants.” To measure that support, Nelson and Gibson first had survey respondents read short vignettes of various types of criticism of the court from different sources, and then asked them about their willingness to consider fundamental changes to the Supreme Court’s institutional structure.

The authors divided the survey respondents into two groups. One group read a vignette criticizing the court as too political (“nothing more than politicians in robes”); half of that group was told that President Donald Trump was the source, while the other half was told that the criticism came from a “bipartisan group of distinguished law professors.” Another group read a vignette criticizing the court on legal grounds (“the Supreme Court justices too often do not follow what the Constitution says”). Again, half of that group was told that the criticism came from the president, and the other half was told it came from law professors. After reading these critiques, all the respondents were then asked whether, if the court decided lots of cases in ways the public disagreed with, “it might be better to do away with the Court altogether” or alternatively reduce its independence. The authors then compared the responses to answers to those same questions a year earlier, when the groups had not been exposed to the critiques.

Nelson and Gibson’s results confirmed earlier studies showing that the public’s support for the court is more likely to deteriorate in response to criticism that the court is politicized than that it made legal errors. (Indeed, this result confirmed Gibson’s previous research. In 2007, Gibson co-authored a study showing that the public’s support for the court dipped during confirmation hearings because interest groups ran ads leading the public to view the court as “just another political institution.”) Nonetheless, their finding is important because it is the first to be based on a nationally representative survey.

To the authors’ surprise, however, they found that survey respondents’ view of the court was more affected by law professors’ criticism that the court was too politicized than by either type of criticism from the president. They concluded that the most likely interpretation of these results is that the public gives weight to the legal experts’ views of the court, while “Trump’s criticisms have become so ubiquitous in everyday life in America as to be rendered ‘cheap talk’ by the American people.” In short, criticisms by law professors pose more of a danger to the public’s support of the courts than does criticism by the president.

Fontana warns that these results should not be taken out of context. He does not disagree with Nelson and Gibson’s methods or results, but he points out that the survey does not measure “how people think about the Supreme Court when they care about the Court.” Fontana observes that Nelson and Gibson’s vignettes and survey questions are abstract, and the policy stakes are low. For example, they had respondents read a vignette describing a “recent speech” by Trump referring to the justices as “politicians in robes” — a bland version of Trump’s colorful early-morning tweets. Nor were respondents asked about the value of judicial independence in the context of specific and high-stakes scenarios.

Fontana wonders if the results would have been different had Nelson and Gibson surveyed respondents’ reactions to Trump’s tweet calling a federal district-court judge “a total disgrace,” or another stating that the district-court judge in Washington who enjoined the travel ban had “put our country in such peril. If something happens blame him and court system.” Survey respondents also might have answered differently, Fontana suggests, had the questions come shortly after a terrorist attack, when the courts are deciding issues about which the public cares deeply. Yet it is at just such moments that the independence of the federal judiciary is most at risk. Fontana’s research has shown that abstract issues such as judicial legitimacy and independence can fall by the wayside when the policy stakes are high. Fontana concludes that although “people report a deep attachment to judicial independence,” it is “an abstract commitment that does not pervasively affect important political behavior—such as voting for a presidential candidate threatening judicial independence.”

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Academic highlight: Hamburger and Siegel on the constitutionality of Chevron deference

Academic highlight: Hamburger and Siegel on the constitutionality of <em>Chevron</em> deferenceIs Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law. In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s […]

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Academic highlight: Hamburger and Siegel on the constitutionality of <em>Chevron</em> deference

Is Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s governing statute. Although the doctrine has been narrowed in recent years, it has remained a bedrock principle of administrative law. Recently, however, both Justice Clarence Thomas and Justice Neil Gorsuch have questioned the constitutionality of Chevron deference. Just a few weeks ago, in his opinion for the court in SAS Institute v. Iancu, Gorsuch began by noting SAS Institute’s proposal that the Supreme Court eliminate Chevron deference altogether — an idea that the court chose to “leave for another day” rather than reject out of hand. Congress has also expressed concern. In both 2016 and 2017, the House of Representatives voted in favor of a bill abolishing Chevron deference on the ground that it is “difficult, if not impossible, to square with separation of powers.” Now, legal academics are taking sides in the debate as well.

Professor Philip Hamburger is one of Chevron’s skeptics. In his 2016 article, “Chevron Bias,” he argues that courts have a constitutional obligation to exercise independent judgment when interpreting statutes. In Marbury v. Madison, Chief Justice John Marshall declared, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Yet Chevron gives agencies the power to “say what the law is,” requiring courts to accept an agency’s reasonable interpretation of a statute even when the court would have reached a different conclusion. Worse, says Hamburger, Chevron deference produces “systemically biased judgments” by requiring that judges defer to the reasoning of a self-interested party to the case, which he concludes is a “brazen violation” of the Fifth Amendment’s due process clause.

In a recent essay, “The Constitutional Case for Chevron Deference,” professor Jonathan Siegel comes to Chevron’s defense. Accepting for the sake of argument assertions by Hamburger, Gorsuch and others that courts must exercise independent judgment about the meaning of federal law, Siegel maintains that Chevron deference is fully consistent with this role. Chevron does not delegate the interpretive function to agencies, but rather asks courts to view ambiguous statutes as creating a menu of permissible actions from which the agency can choose. As Siegel puts it, “[a]n interpretation that determines that a statute delegates power to the executive is still an interpretation.” For the same reason, he disagrees that Chevron deference requires courts to affirm agencies’ self-interested interpretations of statutes. Congress may permissibly vest policymaking discretion in federal agencies; allowing the agency, rather than the court, to choose among the options permitted by ambiguous statutory language does not violate due process. In short, Congress is free to draft ambiguous statutes that operate as delegations of policymaking power to agencies.

Siegel acknowledges, however, that Congress may not have intended courts to treat statutory ambiguities as delegations of authority to agencies. He does not defend Chevron deference against this critique, but he points out that Congress’ silence on this question implies that it has acquiesced in the practice. That said, the House of Representatives has now twice passed a bill that would abolish Chevron deference, suggesting that the debate might ultimately be settled in the halls of Congress rather than by the justices of the Supreme Court.

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Academic highlight: The Supreme Court, the Rules Committees, and amicus practice

Academic highlight: The Supreme Court, the Rules Committees, and amicus practiceScott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law. The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas […]

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Academic highlight: The Supreme Court, the Rules Committees, and amicus practice

Scott Dodson is the Associate Dean for Research and the James Edgar Hervey Chair in Litigation at UC Hastings College of the Law.

The basic separation-of-powers model allocates lawmaking power to the legislative branch, enforcement power to the executive branch, and interpretive and adjudicative power to the judicial branch. But, of course, there are areas of the law in which these powers shift or overlap among the branches.

Court rulemaking is one of those areas. With few exceptions, Congress has the sole constitutional authority to make procedural law for the lower federal courts. In practice, though, things are more complicated. Because the judiciary’s expertise in court procedure exceeds the legislature’s, Congress has delegated its authority to make general rules of federal-court practice and procedure to the Supreme Court in a statute called the Rules Enabling Act. The REA prescribes some procedures for court rulemaking and delegates other rulemaking procedures to the Judicial Conference, which is a group of federal judges prescribed by statute.

Under the REA and the rules of the Judicial Conference, lower-court rulemaking goes through the following stages. The Rules Committees (the Standing Committee and the various Advisory Committees), whose memberships are composed primarily of judges and practitioners with firsthand working knowledge of the rules, meet often throughout the year, hold public hearings and take public comments on proposed amendments, commission studies of the rules through the Federal Judicial Center and the Administrative Office, and publish detailed minutes of their meetings. This rulemaking process is open and democratic, led by experts, with consultation from a wide spectrum of practitioners and interest groups.

Rulemaking recommendations proceed from the Rules Committees through the Judicial Conference, to the U.S. Supreme Court, which has the final approval authority under the REA (subject to a veto by Congress). However, by the time rule proposals get to the Supreme Court, there is little left for the justices to contribute. Compared to the Rules Committees, the Supreme Court is neither particularly expert nor particularly interested in lower-court rules. As a result, the Supreme Court has become a rubber stamp — sometimes expressly so — in the rulemaking process.

After the rules go into effect, however, the courts take over and the Rules Committees take a back seat. Federal cases presenting issues of rule interpretation frequently make their way to the Supreme Court for resolution, and the court is solely responsible for providing an authoritative interpretation of those rules.

The Supreme Court, however, is not the best interpreter of lower-court rules. The court may lack a full understanding of and appreciation for relevant information, such as rulemaker intent, the purpose of the rule, how the rule interrelates to other rules, the history of the rule and relevant amendment proposals, the “legislative facts” underlying the rule, and how the rule currently works in practice. Institutionally, the Supreme Court is guided by the parties’ arguments, principles of stare decisis, and the narrow dispute at stake rather than broader questions of the rule and its interrelatedness to other rules or statutes or interests.

The Supreme Court faces similar informational and institutional deficiencies when it interprets a statute or agency rule, but in those cases, the government agents involved in the statute or agency rule often offer assistance to the court via an amicus brief. The expertise and knowledge of the government can help the court to interpret the law correctly and avoid unintended consequences.

But court rules are different because the Rules Committees do not participate in any kind of amicus practice. The Supreme Court’s deficiencies thus remain in many rule-interpretation cases.

These deficiencies have led to some questionable opinions. In Bell Atlantic v. Twombly, for example, the court was asked to interpret the standards for pleading a civil case under Rule 8 of the Federal Rules of Civil Procedure. In doing so, the court didn’t really rely on the text of the rule. Nor did it rely on the history of the rule or the policies that animated its drafting. Instead, the court relied on its own vision of pleading policy as a screen to protect defendants from high-cost, low-merit lawsuits. In the process, the court grafted new language onto Rule 8, overruled a prior case that had been taught to generations of lawyers, reinvigorated an antiquated distinction between legal conclusions and factual allegations, and marginalized key tools for protecting defendants in other rules.

The court did all of this without any input from the Rules Committees, which could have provided the court with a wide range of relevant information. The committees could have informed the court about research tending to show that defendants don’t need pleading-stage protection in the vast majority of cases, the efficacy of existing tools for protecting defendants in outlier cases, the historical difficulties of parsing the distinction between legal conclusions and factual allegations that led to the promulgation of Rule 8, and the burdens that heightened pleading standards impose on plaintiffs with meritorious cases.

Cases like Twombly raise this question: Should the committees charged with the front-line work of studying the rules and proposing rules and rule amendments have an opportunity to voice their views when those rules are up for interpretation by the Supreme Court?

In a recent article in the Virginia Law Review titled “Should the Rules Committees Have an Amicus Role?,” I argue that the answer is yes.

One might ask why the solicitor general can’t fill this role. When the United States is not a party, the solicitor general does occasionally file amicus briefs on behalf of the United States in cases involving rule interpretation. However, the solicitor general often has the same deficiencies as the court in these cases. Worse, the solicitor general primarily seeks to advance the interests of the federal government as a litigant, especially for pro-prosecution interpretation of federal criminal rules (because the Department of Justice is often a prosecutor) and pro-defendant interpretation of federal civil rules (because executive-branch officials are often sued in civil cases). And, as an executive-branch officer who serves at the pleasure of the president, the solicitor general often represents the political interests of the executive branch, or, even more narrowly, the president. These political and branch-specific interests can collide with the judiciary’s interest in fair and workable court rules.

Indeed, the solicitor general filed an amicus brief in Twombly supporting the defendants. The brief struck a strongly partisan chord on rule interpretation that the Supreme Court largely adopted, with little resort to the text or history of Rule 8. Notably absent from the brief was any mention of the kinds of useful, true-friend-of-the-court information the Rules Committees could have provided: knowledge of other protections against excessive discovery costs, empirical evidence of the costs of meritless suits or the incidence of discovery abuse, or any understanding of how other rules might operate in tandem with Rule 8.

Of course, if the United States is a party (which it is in most criminal cases and many civil cases), the solicitor general’s office won’t file an amicus brief but instead will file an adversarial merits brief with the primary goal of winning the case, as it did in Ashcroft v. Iqbal, in which the office used its achievement in Twombly to secure a dismissal for the defendants it represented in Iqbal.

In my paper, I argue that amicus participation by the Rules Committees could support better – or at least more transparent — decisionmaking by the Supreme Court.

What might this look like? Two primary possibilities are what I call the weak “consultancy” role and the strong “independent amicus” role.

The weak “consultancy” role would require the solicitor general’s office to consult with the Rules Committees in any amicus brief it files on an issue of rule interpretation or application. After all, the solicitor general usually consults with agencies in agency-rule cases. Currently, however, the norm is that consultation is neither sought by the solicitor general nor provided by the Rules Committees.

That norm should be changed. Consultation would allow the Rules Committees’ knowledge and interests to be voiced by perhaps the most effective and frequent Supreme Court advocate, one who is highly credentialed and respected, is a Supreme Court specialist, has few financial constraints, and boasts an unparalleled win rate. No law would need to be changed to authorize this weak form of Rules Committee participation. The solicitor general and the Rules Committees would only need to normalize the practice of consultation and craft internal rules for its implementation.

This weak consultancy role would be insufficient, of course, when the solicitor general refused to represent the views of the Rules Committees. This might occur if the solicitor general were already representing a member of the executive branch as a party, if the solicitor general refused to file an amicus brief in a private-party case, or if the solicitor general advanced priorities in an amicus brief that did not represent those of the judicial branch.

Those situations might justify giving Rules Committees independent authority to file an amicus brief. Congress would have to authorize this power through statutory amendment, but in similar circumstances Congress has given independent amicus authority to other federal entities, including the Federal Elections Commission, the Senate’s Office of Legal Counsel, and special prosecutors appointed under the Ethics in Government Act of 1978.

The logistics of an effective amicus role — whether weak or strong — are, admittedly, difficult. The Rules Committees are not designed for adjudicative advocacy, either in resource support or focus. To address some of these concerns, I propose to use the Administrative Office of the United States Courts, which has an Office of the General Counsel that already provides legal counsel and services to the Judicial Conference and helps support the rulemaking process by assigning career staff attorneys to assist the Rules Committees. Adding an amicus role would impose some increased burden on that office, but its involvement is likely to be limited to specific contexts, consist of presenting information already in the hands of the Rules Committees and the Administrative Office, and be achieved through consultation or briefs without oral argument.

Of course, the Rules Committees themselves might resist an amicus role, perhaps to avoid the appearance of partisan advocacy. But the amicus role I envision would be as a true friend of the court, offering neutral expertise on “legislative facts” like discovery expense or judicial-management issues and how the rules work in the lower courts; information about possible changes to rules currently at issue in a case; the historical context of the origins of a rule and whether the bases, policies and justifications for the rule continue in force today; and broader perspectives about the rules that the parties, with their more narrow focus, might otherwise ignore. Conveying this information in an amicus brief surely is no more political or partisan than rulemaking itself. Participation as a true friend of the court would fulfill the prescribed role of the Rules Committees: to study the rules and to provide information and recommendations to the Supreme Court.

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Academic highlight: Hinkle and Nelson look at why some dissents become doctrine

Academic highlight: Hinkle and Nelson look at why some dissents become doctrineSome of the more memorable phrases from the Supreme Court’s history come from dissents, not the court’s majority opinions. Justice Ruth Bader Ginsburg’s analogy in her dissent in Shelby County v. Holder – that invalidating a section of the Voting Rights Act is “like throwing away your umbrella in a rainstorm because you are not getting […]

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Academic highlight: Hinkle and Nelson look at why some dissents become doctrine

Some of the more memorable phrases from the Supreme Court’s history come from dissents, not the court’s majority opinions. Justice Ruth Bader Ginsburg’s analogy in her dissent in Shelby County v. Holder – that invalidating a section of the Voting Rights Act is “like throwing away your umbrella in a rainstorm because you are not getting wet” – made its way into a new documentary about the justice and arguably contributed to her rise to social media stardom.

Two political scientists, Rachael Hinkle and Michael Nelson, take a look at the memorable language in this dissent and others in a forthcoming article, “How to Lose Cases and Influence People.” As Hinkle and Nelson note, “anecdotal evidence of change in doctrine fueled by a past dissent abounds.” At the same time, there’s little in the way of empirical scholarship as to why some dissents eventually change doctrine, and others don’t. According to Hinkle and Nelson, theirs is “the first large-scale empirical examination of the legal influence of dissenting opinions in the US Supreme Court.”

The authors focus their analysis on “the language used to craft” dissents, which they consider the “one key factor … squarely in [a justice’s] hands – how much effort they devote to making their words memorable.” “The sine qua non of influence is recall,” Hinkle and Nelson suggest, because “a dissent that is forgotten cannot be expected to influence legal development.” Starting from a dataset of 5,795 dissenting opinions written from 1937 to 2014, the authors identify 923 dissents that “received a non-negative citation from at least one subsequent majority opinion.”

According to the authors, existing research in political and computer science has determined that two types of language are particularly memorable – emotional language and distinctive language.

Borrowing from linguistic tools and approaches, Hinkle and Nelson use the Linguistic Inquiry Word Count software to calculate “word counts for a number of psychologically significant categories of vocabulary including words that indicate both positive and negative emotion.” This approach requires some modification because some words, like “complaint,” do not carry the same emotional weight in the legal context as in common English usage.

Hinkle and Nelson define as distinctive “any word that is in the bottom ten percent of the relevant frequency distribution.” Both “umbrella” and “rainstorm,” from Ginsburg’s Shelby County dissent, are classified as distinctive by this measure. As an example of the divergence between legal English and everyday English, the authors note that the words “omnibus” and “butt” have each been used an identical 250 times in Supreme Court majority opinions through the October 2015 term. In general usage, “these two words are clearly not used with similar frequency,” the authors write, just as “umbrella” and “rainstorm” might not seem like distinctive words outside the Supreme Court.

The authors find support for two hypotheses. First, their research shows that increases in the amount of emotional language are positively associated with a dissent’s effect on legal development. However, this effect only applies to negative emotional words; “positive emotion words do not have a statistically significant impact.” Although they had not originally expected this result, it does accord with existing research showing that “negative emotion is more easily recalled than positive emotion.”

Second, Hinkle and Nelson’s research shows that increases in the amount of distinctive language are also positively associated with a dissent’s influence on future cases.

Abortion caselaw provides an example of this phenomenon. As Hinkle and Nelson explain, the Supreme Court in the 1992 case Planned Parenthood v. Casey applied an undue burden test to abortion restrictions, a significant shift from the strict scrutiny test applied in the 1973 case Roe v. Wade. Justice Sandra Day O’Connor first suggested this change in legal doctrine in her 1983 dissenting opinion in City of Akron v. Akron Center for Reproductive Health. O’Connor’s City of Akron dissent used 55 negative emotional words and 126 distinctive words, well above the averages in those categories across all dissents of 27 and 31, respectively. Although many factors contribute to the development of legal doctrine, O’Connor’s use of negative-emotion words and distinctive words likely made her dissent “stand out and, therefore, have a greater effect on the development of the law.”

Hinkle and Nelson also address a third possible explanation for a dissent’s future impact – the strength of the dissenter’s views on the matter. To address this possibility, the authors contrast dissents concluding with “I respectfully dissent” with those simply saying, “I dissent.” The “seemingly innocuous” latter phrase “is rendered vituperative,” the authors explain, because of a norm established under Chief Justice Earl Warren of justices explicitly stating their respect for their colleagues. In accordance with this norm, only six percent of the dissents in the first five terms of the Roberts court included the blunter ending. Nevertheless, although the authors caution against “interpreting a null result with meaning,” they find no statistically significant relationship between this variable and the likelihood of a dissent’s future citation in later terms.

Hinkle and Nelson’s data concerning the average number of negative words justices use in dissenting opinions reveal an interesting trend. In looking through their tables, I noticed that out of 37 justices who joined the court in 1937 or later, the 10 justices with the highest average number of negative words per dissent written through 2014 all joined the bench after 1981. Ginsburg, the one justice to join the bench since 1981 who is not part of the top 10, comes in at 16. (Justice Neil Gorsuch is not included because he joined the bench after 2014.) After I pointed this out, Hinkle produced the graph below, which shows a consistent increase in the average number of negative emotional words.

Click graph to enlarge.

Hinkle, who has not been able to do extensive analysis on this new graph, told me that this increase in the usage of negative emotional words over time “is a bit of a puzzle.” One possibility might be that the total number of separate opinions is increasing over time. As a result, “justices may feel an increasing need to make their dissents stand out.” It’s also “conceivable that justices have long realized that negative emotional language is a way to catch attention and that the observed pattern is the result of a sort of ‘arms race’ in which justices realize they have to keep using more and more negative emotional language in order to garner readers’ attention.”

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Academic highlight: Chabot on the timing of justices’ retirements

Academic highlight: Chabot on the timing of justices’ retirementsIt’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to […]

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Academic highlight: Chabot on the timing of justices’ retirements

It’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to coincide with ideologically compatible presidents, and that many others choose not to do so even though they could. Even more interesting, Chabot found that those justices who do retire strategically are often disappointed by their replacements. Chabot concludes that “[l]imited success in obtaining like-minded replacements explains why Justices flout calls to retire to presidents who share their ideology.”

A justice’s greatest impact on the Supreme Court may come not from her decisions in individual cases, but from the timing of her retirement. The conventional wisdom holds that the justices choose to retire when an ideologically proximate president holds office, cementing their legacy and perpetuating their influence over the court long after they leave the bench. Indeed, the justices’ control over the timing of their retirements is a much-criticized feature of life tenure.

But Chabot’s study of Supreme Court justices’ retirements since 1954 undermines that view, contributing to the ongoing debate among legal scholars over the role of politics in the timing of judicial retirements. Chabot found that half of the 22 retirements over the last 64 years were not politically timed. Many justices are compelled to retire due to serious health problems. For example, Justice William Douglas suffered a stroke, forcing him to step down while Gerald Ford was president – a result he had hoped to avoid. (At one point Douglas declared: “Even if I’m only half alive, I can still cast a liberal vote.”) In the case of other justices, the presidency and Senate were controlled by ideologically distant political actors during the years leading up to their retirement, so they had no choice in the matter. Chabot explains that timing a retirement is particularly difficult for justices in the ideological center, such as Justices Sandra Day O’Connor and Anthony Kennedy, because their votes are not typical of the judges preferred by either the Democratic or Republican parties.

Chabot found that about half of the justices who retired since 1954 appeared to have timed their retirements to occur when ideologically compatible presidents were in office. But even so, they were often disappointed by the results. She concluded that “on average, voluntary retirees did not obtain significantly more like-minded successors than Justices who left involuntarily.”

Chabot’s surprising findings are due in part to her nuanced analysis of the preferences of the retiring justice. Some previous studies of judicial retirements conflated judicial ideology with the party of the appointing president. If a justice appointed by a Republican president retired during a Republican presidency, the justice was assumed to have achieved her goal of retiring during the term of an ideologically compatible president. But Chabot argues that a justice’s voting record is a more accurate measure of ideology than the appointing president’s political party. For example, Justice David Souter was appointed by President George H.W. Bush, a Republican, but he chose to retire when a Democrat was president and Democrats controlled the Senate – a choice that makes sense only when looking at Souter’s more liberal voting record. By the same token, O’Connor, appointed by a Republican, retired while a Republican was president. But her replacement, Justice Samuel Alito, is ideologically distant from her, and she has reportedly expressed disappointment in his performance.

Chabot acknowledges that her study focused on a small number of justices, and that the results might differ over time. She notes that “[i]f enough Justices voluntarily retire to ideologically proximate presidents, there is reason to think they would average significantly better outcomes than Justices who leave involuntarily.” Nonetheless, her study shows that it is difficult for a justice to time his retirement and that, even when a justice succeeds in doing so, his replacement might not vote as he would prefer. In other words, like presidents, retiring justices can find themselves unhappily surprised by the voting records of their successors.

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Academic highlight: The debate over nationwide injunctions

Academic highlight: The debate over nationwide injunctionsWhen, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions […]

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Academic highlight: The debate over nationwide injunctions

When, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions to halt policies granting deferred action to undocumented immigrants and accommodating transgender students in public schools; more recently, injunctions like these temporarily put a stop to President Donald Trump’s travel ban and blocked his rescission of deferred action for undocumented immigrants brought to the United States as children. Congress is considering legislation to regulate the practice, and some speculate that the Supreme Court may soon weigh in as well. In the meantime, legal scholars are debating the constitutional, systemic and policy concerns implicated by nationwide injunctions at conferences, during congressional hearings and in the pages of law reviews.

Legal scholars generally agree on few major points. First, the term “nationwide injunction” is misleading. As professor Howard Wasserman suggests, a better name might be “universal injunction,” because the debate is about whether injunctions can require the federal government to cease enforcing a law against nonparties, not whether the injunctions should apply nationwide. Second, these injunctions are a relatively new phenomenon and have been used with increasing frequency over the last decade. Third, nationwide injunctions are nonpartisan — they have been sought by individuals on both sides of the political spectrum to put a stop to policies they oppose. Fourth, nationwide injunctions come with costs that courts should consider carefully before imposing them.

From that common ground, scholars stake out different positions. Professors Samuel Bray, Michael Morley and Wasserman oppose nationwide injunctions in all or most cases. These scholars argue that such injunctions encourage forum shopping and politicize the judiciary, allowing plaintiffs to hand pick a single district-court judge who can then set policy for the nation. (It was no coincidence that Obama’s policies were challenged in the “red state” of Texas, and Trump’s in the “blue states” of California, Hawaii and Maryland.) They observe that nationwide injunctions are inconsistent with a judicial system that denies precedential value to district court decisions and typically requires named plaintiffs to meet class-certification requirements before obtaining relief on a collective basis. They also point out that such rulings put pressure on the Supreme Court to decide cases before they have been thoroughly debated in the lower courts. For all these reasons, these critics argue, courts should enjoin defendants from enforcing a law only against the plaintiffs in a particular case.

Other lawyers and scholars argue that in some cases nationwide injunctions are essential. (Full disclosure: I’m in this camp.) Such injunctions are at times the only way to provide complete relief to plaintiffs. For example, if a single African-American plaintiff sues seeking desegregation of a public school, an order requiring the school district to admit only that plaintiff will not alleviate her injury. Even if class certification is possible in such a case — and there are many barriers to certification — there is no reason a plaintiff should be required to bring a class action to vindicate her individual constitutional rights. And sometimes such injunctions are essential to avoid injury to the thousands of people affected by government action who cannot quickly file suit themselves, or who could not easily be included in a class — as was the case in the travel-ban litigation. Finally, in some cases anything short of a nationwide injunction is simply impractical. When a district court is asked to pass on the validity of an agency rule with nationwide effects — such as one affecting the air or water — it would be extremely difficult to enjoin application of the rule to some plaintiffs but not others.

As professor Suzette Malveaux has argued, nationwide injunctions are also essential to maintaining the balance of power among the three branches of government. Over the last few decades, executive power has expanded as Congress has been mired in gridlock, leading presidents from both parties to make sweeping changes in federal policies through unilateral executive action. These actions often affect thousands of people, many of whom are incapable of quickly filing lawsuits to put a stop to policies that they claim violate their rights. Malveaux argues that a ban on nationwide injunctions “would remove an important check on the executive branch,” further exacerbating the imbalance in power among the three branches.

Closely related to these systemic and policy concerns is the question whether federal courts have the constitutional authority to issue nationwide injunctions. Bray has argued that Article III of the Constitution limits the federal courts to providing remedies only to the plaintiffs, who have demonstrated their standing to sue. On the other hand, equitable remedies like injunctions have never perfectly tracked standing — for example, courts are willing to order prophylactic injunctions to prevent potential future injuries, even when those injuries would not have satisfied the “actual injury” requirement for standing. In any case, the Supreme Court has shown some flexibility when it comes to standing, such as by allowing plaintiffs to raise the rights of others and to bring moot cases to resolve an issue that is “capable of repetition, yet evading review,” and it has permitted associations to sue on behalf of their members.

The Supreme Court’s June 26, 2017, order narrowing, but keeping in place, a nationwide injunction against enforcement of the second version of the Trump administration’s travel ban suggests that the court has yet to see a constitutional problem with nationwide injunctions. As Bray has noted, however, the court has never squarely addressed the issue, and it has an institutional interest in ensuring that legal questions percolate in the lower courts. Now that nationwide injunctions are cropping up in multiple cases, Bray and others predict that the court will take up that question in the near future.

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