Category Archives: Understanding the U.S. Supreme Court

Rights ch 1, Powers ch 1, Short Course ch 2

Examples of Internal Constraints and Extralegal Influences

As we wrap up our blog for this academic year and many of us who teach constitutional law turn our attention to our summer research agendas, I again write to bring judicial politics back to constitutional law. Two different stories, one from USA Today and one from Concurring Opinions remind us that judicial politics is interconnected to constitutional law.

USA Today discusses the potential influence of external events on two US Supreme Court’s decisions still to come. The first is Association for Molecular Pathology v. Myriad Genetics (No. 12-398). The case asked whether anyone could patent human genes. Myriad Genetics tried to patent two genes; mutations in these genes are important indicators of breast and ovarian cancer in women. Myriad argued that isolating genes is a process that deserves a patent, but a patent would limit the ability of other scientists, pharmaceutical companies, or other researchers to work with the genes and develop alternative tests or treatments. Enter Angelina Jolie, academy award winner and female action star. It was recently reported that Jolie took Myriad’s test, found that she had a mutation, and then underwent a double mastectomy. The aforementioned story in USA today notes the potential for this high profile celebrity story on the test and its costs ($4,000) may further highlight the implications of a ruling for Myriad—most women would be unable to afford the same test. Additionally, the story about Jolie, as USA Today put it, “sent Myriad’s stock soaring…”

The same story discusses the potential impact of recent decisions by several states to accept same sex marriage. The purported change in the trend toward greater acceptance could, if the justices interpret the “polling of jurisdictions” to be heading in the liberal direction, sway the justices in the Perry and Windsor. Alternatively, the remaining states, 38, that still ban same sex marriage could support a decision in the conservative direction. Either way, the decision of the various states is reported as potentially impacting Supreme Court decision-making.

Extralegal influences, such as publicity or state policy changes, are always present and can influence decision-making. Similarly, there are internal constraints or norms that also influence appellate decision-making and the blog Concurring Opinions provided an excellent example of these constraints on the same day as USA Today highlighted the extralegal factors. As reported, Judge David Tatel gave a speech at a ceremony unveiling and hanging a portrait of Judge David Sentelle. The post notes that the two judges sit, ideologically speaking, at different ends of the spectrum. Yet, the judges agreed on decisions most of the time (97%). In the speech, Tatel notes that “despite our best efforts at neutrality, we cannot but see the world—and the law—through the lens of who we are…” Yet, the D.C. Circuit has a norm of collegiality that helped yield an astounding agreement rate of two judges that, barring this norm, would likely not see eye to eye.

Together these examples highlight the complexity of explaining judicial decision-making and the parsimony of any of our models of that behavior. It’s not all attitudes, strategy, or the law. As we head toward the end of the term, it will be interesting to see if Jolie or Minnesota influence the justices, or not.


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An Unusual Lobbying Campaign

Yesterday, veteran Court reporter Tony Mauro wrote about a lobbying effort headed by Professor Peter Irons to cleanse the reputation of the Supreme Court resulting from the Korematsu ruling.  As political scientists, we know about the usual efforts to lobby the courts.  Interest groups bring test cases, though this strategy is actually quite rare, take over cases as they climb the appellate court ladder, write amicus briefs to sway the justices, and publish or support law review articles to introduce new ideas or concepts to the legal lexicon.

Irons sent each of the justices an article that presents why the Court should repudiate its 1944 decision.  The basis of Iron’s argument is not that history reveals that the Court decision was wrong, but rather that vital facts were purposely kept from the justices—facts that likely would have altered the outcome of the case. A 2011 statement of the Solicitor General’s office, as Mauro reports, significantly bolsters Irons’s argument.  In this blog post,[1] then acting SG Neal Katyal outlines the purposeful withholding of information by his office.[2]  Mauro also reports that most of the justices have made their stance on this case clear: Korematsu was wrongly decided.  The executive and legislative branches have come to the same conclusion; Irons argues that it is now time for the judicial branch to do likewise formally.

How would the Court follow Irons’s advice?  Mauro reports on a rare practice of “correcting factual errors.”  Essentially, Irons is asking the justice to correct the factual errors then repudiate Korematsu without having an additional case that serves to overturn the decision.  How could the Court do this?  Professor Irons argues that both reversal and repudiation of earlier decisions are not defined by the Supreme Court rules.[3]  Therefore, the justices can consider the evidence from the coram nobis hearings and the Solicitor General’s statement to correct the facts and note that the decision would have been different had this information come to light.  He also argues that any invidious discrimination case can be used to reverse formally the internment decisions.  “The fact that the Court has never before issued such a “repudiation” statement is no bar to the authority of the Justices to take such an action.[4]

Professor Irons makes a good argument and I wholeheartedly agree that the Japanese internment decisions need to be reversed and repudiated.[5]   However, I do not agree that there is no bar to action he requests.  The evidence here is overwhelming, but there are good reasons to embrace historical precedent. One clear consideration is the current political climate.  Like it or not, repudiating this decision creates a new avenue for lobbying the Court.  How long would it be before other groups use additional facts—facts “ignored” by the government—to petition the justices to re-evaluate precedent setting decisions.  The Court might like to take this step for the internment cases and note the extraordinary circumstances, but as with Bush v. Gore the Court can claim that the case won’t be used a precedent, it cannot prevent litigants from finding other uses or cases for the procedure.

Imagine the Court does repudiate the internment cases.  How long will it be before the next request comes?  And, can we hazard a guess what cases will be first on the “need to repudiate” list?


[2] It is interesting that the SG’s office makes this statement in May of 2011 and the cornam nobis decision of 1983 (vacating Korematsu’s wrongful conviction) was based on the same evidence.  Professor Irons represented Korematsu in this case.

[3] Peter Irons, The Case for Repudiation, a publication of the Earl Warren Bill of Rights Project, University of California, San Diego, 2013 at 26.

[4] Ibid.

[5] Some years ago, the authors of this blog viewed a Smithsonian exhibit about the internment camps.  One of the most disturbing parts of the exhibit was a section that compared US and Nazi propaganda (How to tell a Jew/Japanese type of literature).  The similarities were striking.

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Filed under Discrimination, The Judiciary, Understanding the U.S. Supreme Court

There’s logic and then there’s strict scrutiny…—it-gets-worse[1]


Last night, Stephen Colbert thought he took aim at Paul Clement and his defense of the Defense of Marriage Act.  In reality, he took aim at the constitutional doctrine surrounding suspect classification.  As Colbert reports, Clement’s argument is that the gay rights movement has been so successful it loses.  And, this is the rub with strict scrutiny.  In order to receive preferential status under the equal protection clause, a group must prove more than the presence of discrimination based upon an irrational criterion.  The classes of citizens elevated to either suspect or semi-suspect classes have more than an inherent characteristic in common.  These classes have experienced well-documented discrimination and these classes were considered politically powerless.[2]


The difficulty of proving that a group fits all of these characteristics is readily apparent.  The Court has not elevated any new classes of citizens to suspect or semi-suspect class since the 1970’s.[3]  How likely is it that the Roberts Court will break with this trend?  How would the Roberts Court determine that the GLBT community is politically powerless?  Are all the successes of the GLBT movement now making the courts the least likely ally in the fight for equal protection and treatment?  How much success is too much success?


This reasoning is what has lead to Clement’s seemingly illogical argument.  The GLBT community has managed to fight against DOMA all the way to the Supreme Court, has received the backing of the White House in its fight, and several states are allowing gay marriage.  These victories reveal a strong and dedicated national movement that is not powerless.  Therefore, this class of citizens does not warrant the increased protection that comes with suspect or semi-suspect classification.


On the flip side, many more states still ban gay marriage. DOMA did pass with majority support in Congress and members of Congress are still fighting for its survival. Young men and women are still harassed and bullied because of their sexual orientation or the failure to fit in with sexual stereotypes.  And as Colbert notes, 29 states allow dismissal from a job based upon your sexual orientation.


Will the Supreme Court oral argument be based upon whether the GLBT community is or isn’t powerful?  And if the constitutionality of DOMA comes down to the type of question two year olds fight over (is too versus is not), is it time to reconsider the criteria for suspect classification?

[1] Warning sexual innuendo is used throughout the clip.  See Bethel School District v. Fraser.

[2] See pages 605 and 606 of CLCA: Rights and Liberties for more discussion on the subject.

[3] The Court has added to the list of the honor roll of rights in McDonald v. City of Chicago (2010)

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When government stops working

The court of appeals for the DC circuit ruled today that President Obama’s recess appointments for the National Labor Relations Board were unconstitutional.  This ruling essentially nullifies a large number of decisions made by the board since he made these appointments a little over a year ago.


Using original meaning and textualism, the appellate court noted that the founders used the word “the” in front of “Recess” indicating only one.  And, in referring to other times when the Congress may not be meeting, the word “adjourn,” in some form, was employed.  Therefore, “the Recess” cannot be equivalent to the intrasession adjournments.  Additionally, the combination of “the Recess” and “the next Session” in the recess appointments clause provides further justification for holding that adjournments are not recesses.  The court then continues to justify the ruling through historical and legal precedent, including INS v. Chadha and Myers v. USChadha is cited to note that frequency of an action (including legislative vetoes in bills or making recess appointments during intrasession adjournments) does not make that action constitutional.  Myers provides support for examining the language of the constitution closely when dealing with the appointments clause.


These parts of the ruling are certainly fabulous and clear examples of the application of the legal approaches describe in the CLCA textbooks.  And the legal analysis is well done, as expected.  However, the opinion avoids the approach of pragmatism.  And perhaps it is time for a heavy dose of pragmatism at least when interpreting the Appointments clause.  As the New York Times reports[1], this ruling leaves the NLRB with only one member and essentially shuts down part of the executive branch and prevents the President from executing the National Labor Relations Act because the Senate will not confirm his nominees.  The same situation is repeated within the judiciary as has been repeated in state of the judiciary reports from Chief Justices Rehnquist and Roberts for years.


The opinion of the court of appeals notes some legislative business that occurred over the courts of these various adjournments.  We documented that business only occurs during some of these periods.[2]  And certainly the judiciary is managing to complete cases even though it is woefully understaffed.  Passing a constitutional amendment to provide greater discretion for recess appointments or forcing the Senate to provide some hearing or vote on presidential nominees is DOA in this polarized political climate.  The US is going to appeal this ruling to the US Supreme Court.  Based upon precedent and jurisprudential philosophies, we would predict the US would lose.  If so, the appointments process is also DOA.  Is this a situation that calls for pragmatism and a deviation from more “legal” forms of interpretation?

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Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action, Understanding the U.S. Supreme Court

Stand by me? Oral Argument in Fisher v. University of Texas

Oral argument in the case of Fisher v. University of Texas has been completed.  There has been lots of attention in the media on the arguments about the value of affirmative action in higher education admissions, as well as the probability that this case will mark a sea change in the use of affirmative action.  But it has been intriguing that the issue of justiciability has been largely ignored, despite the attention to it during oral argument.[1]

Looking at the transcript of the oral argument, questions about justiciability pepper the transcript.  Justice Ginsburg interrupted Bert Rein, counsel for Fisher, early in his comments with the following question:  “ The injury—if the injury is rejection by the University of Texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program?”[2]  Mr. Rein’s response was followed shortly after by another question by Justice Sotomayor:

JUSTICE SOTOMAYOR:  Can I go to another side?  She’s graduated.

MR. REIN: Correct.

JUSTICE SOTOMAYOR:  She disclaimed the desire after her application to go to the school at all.  She was permitted to apply for the summer program and get in automatically, and she didn’t, correct?

MR. REIN:  No, that’s not correct, Your Honor.  She—she was not automatically admitted.  She was considered for the summer program and rejected….

JUSTICE SOTOMAYOR:  She has graduated.

MR. REIN:  She has graduated.

JUSTICE SOTOMAYOR:  Injunctive relief, she’s not going to get.  So what measure of damages will she get or will she be entitled to?

The questions by Justices Ginsburg and Sotomayor are attempts by them to address the problems of standing and mootness.  One case that defines criteria for standing is Lujan v. Defenders of Wildlife (504 US 555 [1992]).  In that case, Justice Scalia outlined three criteria for standing: parties bringing suit must be able to show that they have suffered or be in imminent danger of suffering a concrete injury; that the injury must have been caused by the challenged action; and that the injury will be redressed by the relief requested in the lawsuit.  Clearly, Justices Sotomayor and Ginsburg are troubled by the issue of injury and relief.  Although it’s true that Fisher did not get admitted to her first choice school, the question is whether that’s a sufficient injury to justify granting cert to challenge the University of Texas admissions policy, especially when it appears that Fisher might not have been admitted and she has already graduated (and thus, it could also be argued that her case is moot).  Is her harm really, as Stephen Colbert joked on “The Colbert Report” on Oct. 16, “[The great] injustice… [of] having to attend your safety school.”[3]   His comic point makes a serious one that the justices tried to raise—where’s the harm? Does Fisher’s situation show sufficient harm to justify overruling an established set of criteria for college admissions that is meant to bring about the accomplishment of a compelling goal for a university’s academic mission—student diversity?

It is ironic that it is Justices Scalia and Roberts, proponents of tightening standing, who seem not to be bothered by this question.  Of course, it is a very plausible argument that given the slow pace of litigation, it is impossible to address issues surrounding college admissions in a timely fashion that would bring relief to those who feel they have been unfairly denied college admissions.  The Court has certainly had to deal with the issue of timing in other cases– e.g., Roe v. Wade  (410 US 113 [1973]) and DeFunis v. Odegaard (416 US 312 [1974]).

Although Colbert makes light of Fisher’s circumstances, the important question about affirmative action is no laughing matter.  Assuming that the Court will decide this case, it will be another example of the flexibility of criteria for justiciability when pressing policy issues are addressed by the Court.

[1] See, for example, Roger Clegg, Thoughts on the oral argument in Fisher v. University of Texas, SCOTUSblog (Oct. 10, 2012, 7:20 PM),; Adam Liptak, “Justices weigh race as factor at universities,” New York Times (Oct. 10, 2012),, (accessed 10/11/2012); “Supreme Court justices cast doubt on Texas program that looks at race in college admissions,” Washington Post, (10/10/2012), (accessed 10/16/2012).

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Can textualism kill the filibuster?

Common Cause, along with some members of the House of Representatives and three children of illegal immigrants, is suing the Senate.  Specifically, the suit challenges a 2010 vote on the Dream Act.  The Dream Act would have provided citizenship to children of illegal immigrants after they complete college or military service.  A filibuster in the Senate prevented promulgation.  The suit, filed in the District Court for D.C. alleges that the filibuster itself violates “principle of majority rule.” (Common Cause et al v. Joseph R. Biden, et al)

To support their claim, the plaintiffs use textualism and intent.  When more than a majority was necessary for legislative action, the constitution was specific (i.e. 2/3rd of the Senate to ratify a treat.)  In all other cases, the majority principle was understood to hold.  The filibuster, however, “gives a dissident minority in one house (i.e., the Senate), a veto power”; thus this rule “even more anti-democratic than the one house veto statute that was held unconstitutional in INS v. Chadha, 462 US 919 (1983).” (pp 6)[1]   The filibuster bars debate and vote.  Additionally, the filibuster is an obstacle to altering the filibuster rule.  Any attempt to adapt or reconsider the filibuster, the plaintiffs note, is subject to a filibuster.  As such, the filibuster is halting the democratic process.  The members of the House are claiming that the filibuster invalidates their votes and without noting

Perhaps the plaintiffs hope that by citing two instances when the Court waded in on issues of congressional procedure, they may overcome the very large hurdle of the political question doctrine.  However, it is more likely that Nixon v. US, 506 US 224 (1993) is a more appropriate precedent.  While it is clear to most observers that the filibuster is wielded quite often and undermining the legislative process, (i.e., long term judicial and executive vacancies or stalled legislation that has the support of a majority of both houses of Congress,) the internal operation and rules of the Senate are generally considered outside of the judiciary’s purview.  Recall, in Nixon an impeached federal judge challenged Senate procedures used for his trial.  The Senate chose to seat a committee for the trial rather than try the judge before entire body.  Reading the constitution literally, Judge Nixon claimed that the Senate as a body must try him.  The justices disagreed and noted that the Senate, and only the Senate, has power to determine the procedures used.

This reasoning, it seems, would travel very easily to the case before the District Court of DC and likely the suit will not get very far.  But, if by some strange happenstance the case comes before the justices, then Judge Nixon’s case will likely be bumped out of its place in textbooks and replaced with this more contemporary example of a political question.  If the case is dismissed the argument is still a useful example of taking a legal approach to its logical end.

[1] The plaintiffs also note that the filibuster is “more pernicious than the line-item veto statute…” (Clinton v. City of New York 524 US 417 (1998) (pp 7)

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The Most Amazing Supreme Court Chart Ever?

About a week ago, columnist for the Washington Post Chris Cillizza posted a piece titled, “The most amazing Supreme Court chart.  Maybe ever.” [1]  Mr. Cillizza said he found the chart on the Pew polling site; the link is in the footnote below.

The chart shows the distribution of responses to a Pew poll question: “Who is the Chief Justice of the United States?”  The chart does not show a pretty picture (pun intended).  Only 28% of respondents could correctly name Chief Justice John Roberts; 53 percent did not know, 8% named the late Justice Thurgood Marshall, 6 percent named recently retired Justice John Paul Stevens, and 4 percent named Senate Majority Leader Harry Reid.

Cillizza’s commentary:

“So, yeah. A majority of people don’t know the name of the Chief Justice of the United States. More frightening? Eight percent named Thurgood Marshall, who not only was never the Chief Justice but also died in 1993. And let’s not even talk about the four percent who think Harry Reid, a Senator not a member of the Supreme Court, is the Chief Justice….

What the above chart proves is that analysis about how what the Court does — whether it’s what they have already done on Citizens United or what they might do with the Affordable Care Act — will impact the political landscape amounts to something close to a guessing game.”

Although Cillizza concedes that the chart illustrates poll results from the summer of 2010, almost two years ago, and that things might have changed since then, those who study the Court and public opinion are often struck by the public’s lack of knowledge about the Court.  It is not uncommon for the justices to go unrecognized—one illustrative anecdote is that tourists outside the Supreme Court asked Justice Stevens to move out of the way so they could take a good picture of that building.  Still, it is worth keeping in mind that just because the public is ignorant about the membership of the Court, it’s not necessarily the case that the public is unaware of the Court’s decisions or that those decisions don’t have effects on public opinion.

Levels of public knowledge regarding Court decisions can be very different, and higher, than knowledge of facts about the Court.  For example, more recent poll results by Time indicate that the majority of the public reports following the major decisions of the Court—69% of the respondents in that poll said that they followed the Court’s decisions either “very” or “somewhat” closely.  An AP-National Constitution Center poll found that 72% of the respondents indicated that the “decisions of the US Supreme Court ha[s] an impact on [their] daily li[ves].”  These findings are consistent with research that shows that the public can be quite aware of the Court’s major decisions.[2]

Not only has research shown that knowledge about the membership of the Court is not the same as awareness of the Court’s decisions, that same research has considered the impact of Supreme Court decisions when the public is aware of them.  The impact of Supreme Court decisions is likely to influence the structure of public opinion, most notably by increasing polarization on highly controversial subjects.  If the individual mandate, requiring everyone to purchase health insurance, is a highly controversial subject, then it’s likely that the Court’s decision will lead to increased polarization of opinion on the issue, regardless of the outcome.

[2] See, for example, Franklin and Kosaki, “The Republican Schoolmaster,” American Political Science Review, vol 83: no. 3 (Sept. 1989): 751-771; Kritzer, “The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court,” Judicature, vol. 85: no. 1 (Jul/Aug 2001): 32-38; Scott and Saunders, “Courting Public Opinion: Supreme Court Impact on Public Opinion Reconsidered,” paper presented at the 2006 meeting of the Midwest Political Science Association, 2006,, accessed 4/20/2012.

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