Online research in philosophy

This paper investigates the possibility of confirmation bias in the United States Supreme Court Judicial Database (USSCJD) issue and judgment codes. We ask whether an opinion issued by a liberal Court is more likely to be assigned a USSCJD issue code that leads to a liberal judgment code, relative to an otherwise similar opinion issued by a conservative Court (and vice versa). Using a sample of cases from the USSCJD that pose comparable issue coding choices, we find that cases are disproportionately assigned issue codes that tend to lead to judgment codes confirmatory of expectations about the ideological character of the judgments typically issued by the deciding Court. We also find considerable evidence that variation in the Court's decision making as a function of congressional preferences has been ``coded out'' of the USSCJD as a result of confirmation bias in the issue codes. Finally, we recode a subset of the USSCJD judgment codes to eliminate confirmation bias. We find that this bias may have led many researchers using the original USSCJD judgment codes to reject the hypothesis of congressional constraint on the Court, despite compelling evidence for the existence of such constraint using the recoded judgment codes.

In recent years, the Supreme Court's 2001 decision in Saucier v. Katz has come under increasing criticism. Critics-including academics, litigants, judges, and Supreme Court justices - have offered four principal criticisms. First, they argue that Saucier's ordering requirement often results in advisory opinions that follow insufficient argument and that result in bad constitutional rulings. Second, they contend that the decision unnecessarily exacerbates already-existing concerns of judicial economy. Third, they assert that the decision frequently results in unreviewable decisions of constitutional law. Finally, they argue that because litigants have other ways of seeking to vindicate their constitutional rights, Saucier's ordering requirement is unnecessary. This Article responds to these criticisms in two ways. First, it places Saucier in its historical and doctrinal context. Historically, the Supreme Court has regularly reached constitutional questions the resolution of which were unnecessary to the outcome of the case. Doctrinally, the Supreme Court has often allowed, if not required, the resolution of unnecessary constitutional questions. Second, this Article responds seriatim to these criticisms and argues that none of them justify departing from Saucier's ordering rule. With each of the four criticisms rebutted or undermined, the original justification for Saucier still stands - the ordering requirement is necessary to ensure the continued evolution and clarification of constitutional law. The Article concludes by asserting that the Supreme Court should reaffirm Saucier when it revisits the issue next term.

While prior scholarship has noted changes in section 1983 jurisprudence, this article demonstrates that the current state of the law reflects the transformation of dissents, particularly the dissent written by Justice O'Connor in 1987, into a majority opinion in 2002. The hostility of several Justices to section 1983 can be traced to the policy arguments advanced by Justice Rehnquist in his dissents from the 1970s. The 35 years of acrimony over section 1983 contrast sharply with the harmony with which the Court has approached federal preemption, which has been acknowledged by numerous Justices, including Rehnquist and Kennedy, as a viable alternative to litigating under section 1983. Post-2002 cases from Courts of Appeals have embraced preemption as a vehicle for reaching the merits in safety net cases, including cases in which section 1983 does not provide a cause of action. This article also critiques the separate opinions of Justices Scalia and Thomas which have sought to limit the use of preemption to serve the interests of business and deny low-income individuals the full protection of federal law.

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.

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.

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.

Despite the increasing frequency of fragmented plurality decisions, courts and scholars have yet to agree on how properly to interpret these decisions' precedential effects. In some particularly frustrating cases, such as Rapanos v. United States, the usual tools of the Marks rule are unhelpful because the majority agreement, while easy to discern, is not between "those Members who concurred in the judgment." In those cases, which this Comment labels cross-cutting majorities, a majority of Supreme Court Justices clearly agrees that a particular legal rule exists, but that majority depends on the votes of Justices who actually dissented from the judgment. This Comment suggests a framework with which to analyze the precedential effect of these cross-cutting majority opinions. Part I defines the key terms of the debate. Part II discusses the traditional command model of precedent, in which lower courts are required to follow only unified majority rules that were necessary to the result of a particular judgment. This model strongly cautions against treating cross-cutting majorities as binding precedent. Part III focuses on a particular concern of the command model: cross-cutting majorities are mere dicta because they are not tethered to the majority judgment. Part IV examines an alternative conception of precedent and law, the prediction model, in which lower court judges ought to conform their decisions to expectations of how a higher court, if any, would rule on the issue. This Part argues that the prediction model, despite important limitations, offers a pragmatically powerful and theoretically legitimate means of addressing cross-cutting majorities. Part V turns to a discussion of meta-precedents: federal court decisions that, explicitly or implicitly, have confronted this issue. Part VI revisits the dicta problem and argues, based on the prediction model, that lower courts should treat cross-cutting majorities as maximally persuasive, albeit non-binding, authority.

In this article, the author discusses the Marriage Cases opinion issued by the California Supreme Court in May of 2008. In that decision, a majority of the justices of the California Supreme Court found that the California Constitution requires affording the designation of marriage to same-sex couples. Though the article focuses on California, the article is equally applicable to other opinions discussing same-sex marriage. (The views expressed in the article do not necessarily represent the views of the agency or the U.S.).

In recent years, several analyses have furthered our understanding of the roles of U.S. Supreme Court clerks. This article applies the insights provided by these works to a case study of some of the language in Justice Kennedy's opinion in Gonzales v. Carhart (2007). The study considers whether both the theory and content of this language were largely the work of one of the crop of clerks who worked for the Justice during the October '06 Term. Justice Kennedy's vote and his authorship of the majority opinion were unsurprising. However, some of the opinion content was unexpected; its paternalistic approach to abortion rights is inconsistent with the otherwise libertarian arguments that he has employed in previous abortion cases. I hypothesize that this might be explained by the presence, within the quartet of Kennedy's clerks, of an individual who wrote these particular views into the Justice's opinion. At the end of the day, the name on the opinion in Carhart is Kennedy's. He bears the public burden of shouldering responsibility for the opinion's content. However, recent studies tell us never to underestimate the importance of those who clerk for U.S. Supreme Court Justices. In order to understand Carhart, might we have to accept that it is an example of clerkish control?

This essay addresses some of the least analyzed words in Supreme Court separate opinions. These are the words that follow the comma after the authoring Justice's name such as "concurring," "dissenting," "concurring in part," "concurring in the judgment" or some combination thereof. Specifically, the question arises of what power these "after the comma" phrases should yield when an opinion is labeled as "concurring" but the text conflicts significantly with the opinion of the Court. In other words, should concurring in name trump dissenting in substance? A recent example of this dilemma is found in the D.C. Circuit Court of Appeals' reliance on Justice Powell's "concurring" opinion in the Supreme Court reporter's privilege case of Branzburg v. Hayes. In Branzburg, as in other cases, the proper interpretation of Justice Powell's "pseudo-concurrence" is particularly important because it provides the fifth vote for the majority decision. Yet confusion over how to read Branzburg has ensued - some courts focus on the text of the Powell opinion, rather than the "concurring" label, and treat Branzburg as a mere plurality opinion while others rely on the "after the comma" label and declare Branzburg to be a five-justice majority. This essay concludes that the "after the comma" phrases are useful guidelines to the Justices' positions but should not override the more detailed reasoning in the text of the separate opinion. When the two conflict, it should be viewed as an opportunity to return to the Court's seriatim roots where each Justice's rationale is analyzed individually.