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- Douglas A. Berman, A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'.In a lecture at the University of Chicago, U.S. Supreme Court Associate Justice Stephen Breyer highlighted that he has two jobs: the first job, he explained, is deciding what to decide, and the second job is then to decide what the Court has decided to decided. Many devote careers to analyzing and criticizing exactly how Supreme Court Justices perform their second job of deciding the cases the Court has decided to decide; far less attention has been devoted to analyzing and criticizing exactly how Supreme Court Justices perform their first job of deciding what to decide.This commentary directs attention (and criticism) toward the Justices' performance in their first job of deciding what to decide in the arena of criminal justice. This commentary contends the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems. Specifically, the Supreme Court has become caught up in a "culture of death": the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants. As the title of the commentary is intended to suggest, this phenomenon a "capital waste" that results in various problems for the administration of both capital and non-capital sentencing systems.Beyond criticizing the Supreme Court's troublesome affinity for obsessing over capital cases, this commentary explores under-examined agenda-setting dynamics that shape the Court's engagement with legal issues and its work-product. In addition, as a final coda suggests, changes in Court personnel might prove to be as consequential with regard to how the Court sets its docket as with regard to how the Court resolves cases.No categories
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This article reviews the decisions of the U.S. Supreme Court for the 2005-2006 term focusing on decisions of particular relevance to state and local government. The Court‘s 2005-06 Term began with much speculation as one, then a second new Justice joined the Court. After the close of the 2004-05 Term, the Court suffered the loss of Chief Justice William Rehnquist, who succumbed to the thyroid cancer that had plagued him during that Term. President Bush ultimately replaced him with Judge John G. Roberts, who began the new Term and authored his fi rst opinion, the traditional 9-0 opinion of a new Justice, in a death penalty case, United States v. Holmes. The Term began with Justice Sandra Day O‘Connor still sitting, although she had announced her retirement from the Court even before the death of Justice Rehnquist. O‘Connor‘s replacement, Justice Samuel A. Alito, Jr., ultimately joined the Court replacing her with a Justice who was not seen as the moderate force O‘Connor had been. O‘Connor did participate in the parental notification abortion case, the Court‘s first in five years, a case that was slated to determine the continuing viability of O‘Connor‘s "undue burden" standard and expected to give conservatives an opportunity to replace that standard with one more to their liking. That did not happen this Term, however, and, in that case, like in many others this Term, the fears that the new Court, with its new Bush appointees, would take a sharp right turn did not yet materialize.
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| | Scholar | More options ... The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role which it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court’s functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the large part, failed to engage with the meaning of the term “judicial activism” and examine the manner in which it is determined. This paper contends that a recent model to measure judicial activism proposed by Cohn and Kremnitzer can fill this void. It applies the model to three major cases of the Indian Supreme Court, to demonstrate how it can enable us to arrive at a sophisticated understanding of when decisions are activist; and how decisions may be activist by some parameters and restrained by others. In particular, it illustrates that commentary on the Court needs to evolve and engage with judicial decision-making in a far more rigorous fashion. Through its qualitative analysis, this paper suggests that the Cohn-Kremnitzer model can play an important role in moving beyond the current impasse in the debates on judicial activism in the Indian Supreme Court.
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| | Scholar | More options ... One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The US Constitution is whatever the Supreme Court says it is". In many cases the Supreme Court has interpreted the Bill of Rights by means of wire drawn reasoning, reflecting the judges' political and social views. For a survey of Supreme Court Cases on the Bill of Rights see M. Konvitz, Fundamental Liberties of a Free People . The Supreme Court's power to interpret the constitution has made the appointment of judges a political issue, and in 1937 President Roosevelt sought to appoint additional judges (to "pack" the Court) so as to change the court's attitude (the US Constitution does not fix the number of judges). A President is expected to nominate judges ideologically acceptable to his supporters, and the Congress scrutinises these nominations in a partisan way. See article on George W. Bush's nominations. Since judges hold office for life, a President's nominations may make a long term difference to the interpretation of the constitution.
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| | Scholar | More options ... Highly experienced Supreme Court advocates are frequently believed to be influential in argument before the Court in a way that far outstrips the run-of-the-mill advocate. This paper tests that hypothesis with regard to a particular subset of "public law" or "public interest" cases. It finds that highly experienced advocates have become an enormous influence on the Court's public law cases, and offers a game-theoretic rationale for this influence - that the use of highly-experienced counsel serves as a "signal" to the Court that the preferable result is the one that the advocate is pushing. It also examines the effect on civil rights law (as a case study) that the Supreme Court Bar, as they're called, has, and proposes some possible solutions.
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| | Scholar | More options ... If the Supreme Court often serves the interests of the dominant governing coalition, does such regime assistance extend to partisan departures? Do the Justices time their exit from the bench to enable party allies to appoint loyal and like-minded successors? The answer to this question is not as clear and settled as conventional wisdom and anecdotal evidence indicate, with empirical studies sharply divided over the existence of strategic retirement. We offer new evidence regarding the influence of personal and political factors on the probabilities of Supreme Court retirements over the last fifty years. We find limited support for the view that, in deciding whether to stay or go, Justices respond to exogenous political factors like partisan control of the White House. Instead, an important consideration is their role and influence on the Court, suggesting that, at least when it comes to retirement decisions, Supreme Court justices care more about power than party and policy. Helping their party by strategically retiring comes at too high a price: losing their institutional position and influence.
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| | Scholar | More options ... This article is intended to provide an overview of recent Supreme Court jurisprudence on private international law. It will discuss several cases that have been brought to the Supreme Court over the past few terms, and will utilize these cases as a lens through which to view the movement of the Court toward or away from an increased awareness of and international consensus on private international law issues. Interspersed throughout this discussion will be mention of other issues of private international law that may be brought before the Court in the future. The article concludes that while the Court has embraced its role in defining the extraterritorial reach of federal laws, bringing about much needed predictability for international sovereign and private interests, it has separately continued to defer questions of personal jurisdiction to the authority of lower federal and state courts with little regard for internal (and international) harmony.
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| Discuss | Edit | Categorize | My bibliography | Export citation | Other links: interscience.wiley.com blackwell-synergy.com jstor.org dx.doi.org | Scholar | At my library | More options ...
| | Other links: interscience.wiley.com blackwell-synergy.com jstor.org dx.doi.org | Scholar | At my library | More options ... Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.
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| | Scholar | More options ... What are things like the Supreme Court? Gabriel Uzquiano has defended that they are groups, entities which are somehow composed of members (at certain times) but which, unlike sets (or pluralities), allow for fluctuation in membership. The main alternative holds that ‘the Supreme Court’ refers (at any time) to the set (or plurality) of their members (at the time). Uzquiano motivates his view by posing a metaphysical puzzle for this reductive alternative. I argue that a parallel reasoning would also find a corresponding “puzzle” in the case of ordinary singular terms like 'The Chief Supreme Court Justice'.
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| | Scholar | At my library | More options ... The decision of the Supreme Court of Canada in Canadian Western Bank v. Alberta (2007) was quickly hailed as the most important federalism ruling in 20 years. The decision has already been the subject of considerable academic commentary, but that academic commentary has been focussed, almost exclusively, on the doctrinal implications of the decision; there has been very little discussion of the underlying theory of federalism described in the decision. This paper will fill that gap. I will argue that, in Canadian Western Bank, the Supreme Court clearly outlines the theory of judicial review that has been animating its decision-making in division of powers cases, at times explicitly, but mostly implicitly, for at least the last ten years. Under this theory, the Supreme Court encourages the political branches to take the lead in defining the scope of the division of powers; the Supreme Court limits itself to facilitating an intergovernmental dialogue about the scope of the division of powers, and managing the conflict that results where the political branches fail to reach agreement.
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| | Scholar | More options ... Discussion of Douglas A. Berman, A capital waste of time? Examining the supreme court's 'culture of death'
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