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Posts Tagged ‘Supreme Court of the United States’

Creating America’s Freedoms in the Limelight

With all the news reporting on the major changes in healthcare legislation and reform, some may have missed the newest decision analyzing the 1st Amendment.  I am not a constitutional scholar, but I do want to highlight this particular decision because of it close proximity to the Fourth of July.

You may ask yourself why there is any relation between the two.  Well first, let’s remember what the Fourth of July really stands for: Independence Day. No, not the Will Smith blockbuster.  The Fourth of July is a federal holiday that celebrates the adoption of the Declaration of the Independence on July 4, 1776 and the rights that were conferred onto the new colonies at America’s creation.

According to the National Archives, “drafted by Thomas Jefferson between June 11 and June 28, 1776, the Declaration of Independence is at once the nation’s most cherished symbol of liberty and Jefferson’s most enduring monument. Here, in exalted and unforgettable phrases, Jefferson expressed the convictions in the minds and hearts of the American people. The political philosophy of the Declaration was not new; its ideals of individual liberty had already been expressed by John Locke and the Continental philosophers. What Jefferson did was to summarize this philosophy in “self-evident truths” and set forth a list of grievances against the King in order to justify before the world the breaking of ties between the colonies and the mother country.”

In the Declaration of Independence, Thomas Jefferson wrote, “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

With these words, many questions have grown.  What are self-evident truths?  What is liberty? What is freedom? Where does freedom come from? What is the difference between freedom and liberty? Is liberty a license to do whatever ‘I want” whenever ‘I want to’? To learn more, read Michael P. Zuchert’s article, “Self-Evident Truth and the Declaration of Independence” published in The Review of Politics.

The Declaration of Independence has been interpreted in wildly different ways throughout its lifespan.  Here are a few of the articles that might shed more light on the intent and construction behind the Declaration of Independence.

One of the liberties, which we do know fairly clearly, that the founders wanted to ensure with the new country is the Freedom of Religion.  To learn more on this topic read “Religious Freedom and the First Self-Evident Truth: Equality as a Guiding Principle in Interpreting The Religion Clauses” by Jay Alan Sekulow, James Matthew Henderson, & Kevin Broyles – 4 Wm. & Mary Bill Rts. J. 351 (1995-1996.).

Others came out in the development of the Bill of Rights, specifically the First Amendment. According to the National Archives, “during the debates on the adoption of the Constitution, its opponents repeatedly charged that the Constitution as drafted would open the way to tyranny by the central government. Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a ‘bill of rights’ that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.”

“On September 25, 1789, the First Congress of the United States therefore proposed to the state legislatures 12 amendments to the Constitution that met arguments most frequently advanced against it. The first two proposed amendments, which concerned the number of constituents for each Representative and the compensation of Congressmen, were not ratified. Articles 3 to 12, however, ratified by three-fourths of the state legislatures, constitute the first 10 amendments of the Constitution, known as the ‘Bill of Rights’.”  The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  And even though this was drafted in 1789, we’re still seeing its power today.

In last week’s Supreme Court decision, United States v. Alvarez, Justice Kennedy wrote, “Lying was his habit.  Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.  18 U. S. C. §704.”  However, the court found “when content-based speech regulation is in question, however, exacting scrutiny is required.  Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside.” And with the last words that “the Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace,” the court found that “though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.”  These protections being the same principles that were born in the Declaration of Independence.

First Monday in October

The first Monday in October brings a breath of autumn and with it, a new term for the Supreme Court of the United States. The Court is statutorily required to thus begin its new annual term (28 U.S.C. § 2 (2006)), although initially the Court’s work was divided into two terms, beginning in February and August (although still on the first Monday of each) (Act to Establish the Judicial Courts of the United States, ch. 20, § 1, 1 Stat. 73, 73 (1789)).

As the highest court in the land, there is a great deal of information available about the Supreme Court’s work, much of which is available directly from the Court. The Court itself provides information about the traditions and procedures of the Court. Transcripts of oral argument are now available on the Court’s website the same day as the arguments are heard, and audio files are available as well. Opinions are also posted here, immediately after they are delivered from the bench. (Older opinions are maintained on the website until bound volumes are available.)

News sources are a great place to get information as the Court’s term progresses. All of the major networks and newspapers provide some Court coverage. NPR’s Nina Totenberg has a weekly update on the Court’s work each Monday, including a Term preview on Morning Edition. Slate’s Dahlia Lithwick (and others) offer analysis and commentary in a Jurisprudence column. And, of course, if you like some comedy with your news, don’t forget about The Daily Show, the Colbert Report, and NPR’s Wait Wait, Don’t Tell Me. But much more information is available than ever makes the headlines.

A great source for information about the Court’s term is the SCOTUSblog. This blog posts analysis and commentary on cases, but also hosts docketing information and briefs for upcoming cases, as well as an array of statistics on past Court terms (formerly hosted at the SCOTUSwiki). The Oyez Project provides summaries and docketing information about cases scheduled before the Court. Cornell’s Legal Information Institute has a Supreme Court Bulletin that offers recent decisions and orders, information about the Court, and an archive of cases heard as far back as 1990. The American Bar Association’s Supreme Court Preview offers briefs from all parties for upcoming cases, as well as their scheduling information. (This is a subscription product that PCL users have access to via Hein Online, in addition to partial access via the ABA’s website linked above, and microfiche from 1984-2002.)

More information is available about the Supreme Court of the United States than perhaps on any other court in the world. You just have to know where to look, or who to ask.

The Supreme Court Database

November 11, 2010 Leave a comment

Are you interested in researching the United States Supreme Court?  Then you should check out the Supreme Court Database.

The Supreme Court Database is the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court. The Database contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2009 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices.

Under the Analysis section of the site, you can research specific cases as well as entire terms of cases (back to 1953).  You can also pull all Supreme Court cases organized in to issues and subissues, case disposition, as well as whether laws were declared unconstitutional.

The great thing about this database is that the people behind it are attempting to provide retrospective coverage of every case ever decided by the Supreme Court, all the way back to the Court’s first reported decision.  Also, for those of you not afraid of math, data can be downloaded for manipulation in Excel or other statistical software package of your choice 🙂

"May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009"

June 28, 2010 Comments off

New on SSRN to complement our last post on confirmation resources in anticipation of hearings set to begin today for Elena Kagan: “May it Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009” by Lori A. Ringhand (Univ. of Georgia School of Law) and Paul M. Collins, Jr. (University of North Texas).  The abstract:

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This database, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which issues are most frequently discussed at the hearings, whether those issues have changed over time, and whether they vary depending on the party of the appointing president and the party of the questioning senator. We also investigate if questioning patterns differ depending on the race or gender of the nominee. Some of our results are unsurprising: for example, the hearings have become longer. Others, however, challenge conventional wisdom: the Bork hearing is less of an outlier in several ways than is frequently assumed, and abortion has not dominated the hearings. We also discover that there is issue area variation over time, and that there are notable disparities in the issues addressed by Democratic versus Republican senators. Finally, we find that female and minority nominees face a significantly different hearing environment than do white male nominees.

Resources about the US Supreme Court Confirmation Process

June 25, 2010 Comments off

In anticipation of the confirmation process for Elena Kagan that will begin on Monday, the PCL has selected a few books and articles for those who want to know a little bit more about the confirmation process.

For a comprehensive list of documents relating to Elena Kagan’s legal career up to this point, from articles and books she’s written to the documents collected in preparation of her confirmation proceedings, check out the Law Library of Congress resource page on Elena Kagan.

For hearings of prior, successful SCOTUS confirmations, check out GPO Access’s collection (up to Justice Alito).  Justice Sotomayor’s confirmation hearing can be found here.

Selected Books

Christopher L. Eisgruber, The Next Justice: Repairing the Supreme Court Appointments Process (2007) – KF8742 .E357 2007

The goal of this book is to provide a better description of how the Court works and, with it, a prescription for repairing the Supreme Court appointments process.

Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II (2008) – KF8742 .A72 2000

Addresses the vital questions of why individual justices were nominated to the Supreme Court, how their nominations were received by legislators of the day, whether the appointees ultimately lived up to the expectations of the American public, and the legacy of their jurisprudence on the development of American law and society.

Sarah A. Binder & Forrest Maltzman, Advice & Dissent: The Struggle to Shape the Federal Judiciary (2009) – KF8776 .B56 2009

“Judicial selection has been contentious at numerous junctures in American history, but it has reached new heights of acrimony and dysfunction in recent years. In this important book, two leading authorities on Congress and the courts explore the politics of selecting federal judges in the United States – a process beset by deepening partisan polarization and deterioration of the practice of advice and consent.”

Scott E. Graves & Robert M. Howard, Justice Takes a Recess: Judicial Appointments From George Washington to George W. Bush (2009) – KF8776 .G666 2009

“The constitution allows the president to ‘fill up vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the End of their next Session’. [The authors] address how presidents have used recess appointments overtime and whether the independence of judicial recess appointees is compromised.”

John Anthony Maltese, The Selling of Supreme Court Nominees (1995) – KF8742 .M26 1995

“From 1789 through 1994, U.S. presidents made 149 nominations to the Supreme Court. Of these, 120 were confirmed by the Senate, but only 112 of the 120 were seated on the Supreme Court.”  This book has a chart of all the failed nominations up to 1987.

Recent Articles (links are to the free web or Hein Online, unless otherwise noted)

This is a selective list of recent articles from the past five years about the United States Supreme Court nomination and confirmation processes.

CRS Report:  Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate (February 19, 2010) (PDF format)

Richard Brust, No More Kabuki confirmations: there are better ways to vet a Supreme Court nominee 95 ABA Journal 38 (Oct. 2009)

Lori A. Ringhand, In defense of ideology: a principled approach to the Supreme Court confirmation process 18 The William and Mary Bill of Rights Journal 131 (2009).

Lee Epstein, Jeffrey A. Segal, and Chad Westerland, The increasing importance of ideology in the nomination and confirmation of Supreme Court Justices 56 Drake L. Rev. 609 (2008).

Jeannine R. Reardon, Selecting Supreme Court justices: preserving the system, protecting with professionalism 40 Suffolk U. L. Rev. 861 (2007)

Terri L. Peretti, Where have all the politicians gone? Recruiting for the modern Supreme Court 91 Judicature 112 (2007).

Keith E. Whittington, Presidents, senates, and failed Supreme Court nominations 2006 Sup. Ct. Rev. 401 (available via Westlaw).

Margaret S. Williams and Lawrence Baum, Questioning judges about their decisions: Supreme Court nominees before the Senate Judiciary Committee 90 Judicature73 (2006).

Horace Cooper, Tilting at Windmills: The Troubling Consequences of the Modern Supreme Court Confirmation Process 33 S.U. L. Rev. 443 (2005-2006).

Adam J. White, Toward the framers’ understanding of ‘advice and consent’: a historical and textual inquiry 29 Harvard Journal of Law & Public Policy 103 (2005).

Law Review Articles by SCOTUS Nominee Elena Kagan

May 10, 2010 Comments off

Links are to free web versions of the article or Hein Online.  This list was generated via an author search of the Index to Legal Periodicals and Legal Trac.

  • Kagan, E. Clark Byse. Harvard Law Review v. 121 no. 2 (December 2007) p. 454-6
  • Kagan, E. [David Westfall]. Harvard Law Review v. 119 no. 4 (February 2006) p. 947-8
  • Kagan, E. A libel story: Sullivan {New York Times v. Sullivan, 84 S. Ct. 710 (1964)} then and now. Law & Social Inquiry v. 18 (Winter 1993) p. 197-217