Tag Archives: extralegal

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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Filed under Understanding the U.S. Supreme Court

Religion, privacy, and locator chips: Extralegal factors and decision-making

National Public Radio reported on a new federal lawsuit out of Texas on Monday, December 17, 2012.[1]  On the 17th, a federal judge will hear a case dealing with an experimental program that places locator chips into student IDs.  The motivation for the school is monetary.  Attendance equals dollars and the chips provide more accurate counts of how many students are on school grounds.  For money strapped school districts, this is a way to squeeze a few more dollars out of the federal government.  The school district in Texas estimates gaining 1.7 million dollars out of a program that cost between 260,000 to 500,000, according to the two NPR stories.

However, some students and parents are challenging the use of the locator chip.  One argument is that it violates the freedom of religion.  One evangelical student believes that the chip is analogous to the ‘mark of the beast’ discussed in Revelations.  The chip program is to this family of evangelicals the same as the flag salute or school prayer is to Jehovah’s Witnesses or a school prayer was to Engel (see Minersville v. Gobitas (1940); West Virginia State Board of Education v. Barnette (1943); Engel v. Vitale (1962)).  Other parents and students challenge the chip program as a violation of the right to privacy.

A classroom discussion of this case last week would probably be a good case to discuss the intent of the first amendment and the balancing approach that the courts tend to use when dealing with schools and their role as parens patriae.  The school claims that the chips will be used for attendance and not monitoring students whereabouts on a constant basis.  However, the motivation for the program is monetary and that definitely ranks below the preferred freedoms.

However, while the motivation may have been monetary, in the wake of the tragedy in Newtown, CT, the school district may have a more compelling rationale for keeping the chips—the ability to locate each and every student during a crisis and after a crisis.  Even if the attorneys for the school district did not prepare to argue the safety interest, the facts of the case surely will bring these events to mind and solidify the school district’s interest when balanced against the other fundamental rights.  The safety interest, even more so than a policy to protect students from drugs and the drug culture (Morse v. Frederick (2007), again would be hard to ignore.  This case may, in the end, be an excellent example of extra-judicial factors beyond personal preferences influencing judicial decision-making.

 

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Filed under Religion, The Right to Privacy