Online research in philosophy

By lopsided majorities, the U.S. Supreme Court, in a series of cases, persistently commanded the lower courts to condition the admission of proffered expert testimony on the demonstrated validity of the proponents’ claims of expertise. In at least one broad area – the so-called forensic sciences – the courts below have largely evaded the Supreme Court's holdings. This paper aims to try to explain this massive defiance by the lower courts in terms of social epistemology.

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.

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.

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.

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.

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.

What are things like the Supreme Court? Gabriel Uzquiano hasdefended that they are groups, entities which are somehow composed ofmembers (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 singular terms like 'The Chief Supreme Court Justice'. /// ¿Qué son cosas como el Tribunal Supremo? Gabriel Uzquiano ha defendido que son grupos, entidades de algún modo compuestas de miembros (en ciertos momentos) pero que, a diferencia de los conjuntos (o las pluralidades), permiten fluctuatión en la pertenencia. La alternativa principal sostiene que 'el Tribunal Supremo' hace referencia (en cada momento) al conjunto (o pluralidad) de sus miembros (en ese momento). Uzquiano motiva su posición planteando un problema metafísico para la alternativa reduccionista. Argumento que un razonamiento paralelo también encontraría un "problema" correspondiente en el caso de términos singulares como'el Presidente del Tribunal Supremo'.

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.

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'.