Category Archives: Courts

Measures for Justice

Source: Measures for Justice (MFJ), 2017

Measuring justice, one county at a time.
Assessing and comparing the performance of the entire U.S. criminal justice system.

THE PROBLEM
No one really knows how well our entire criminal justice system is working on the county level.

THE SOLUTION
Measures for Justice gathers criminal justice data at the county level and uses them to populate performance Measures that address:
Public Safety, Fair Process, Fiscal Responsibility

The Measures track how criminal cases are being handled at the county level from arrest to post-conviction. They are designed to increase the transparency of local justice systems and enable more informed discussions.

All of our Measures and analyses present data at the county level and are available for free to the public on a web-based Data Portal. The Portal is searchable and can be configured to break down performance data across multiple factors including race/ethnicity, sex, indigent status, age, offense type, offense severity, court type, and attorney type. The Portal also allows for county-to-county comparison within and across states.

The Entire Public Sector Is About to Be Put on Trial

Source: Naomi Walker, In These Times, Views, May 25, 2017

The Right’s assault on public-sector workers is an assault on the public sector itself.

Within the next year, the Supreme Court is likely to rule on the latest existential threat to workers and their unions: Janus v. AFSCME. Like last year’s Friedrichs v. CTA—a bullet dodged with Justice Antonin Scalia’s unexpected death—the Janus case is a blatant attack on working people by right-wing, moneyed special interests who want to take away workers’ freedom to come together and negotiate for a better life.
For years, the Right has been hammering through state-level “right-to-work” laws in an effort to kill public sector unionism; it would see victory in the Janus case as the coup de grace. ….

Symposium: Court clarifies review of racial gerrymandering, but does not impose strict scrutiny on every intentional creation of a majority-minority district

Source: Kristen Clarke and Ezra Rosenberg, SCOTUSblog, May 22, 2017

As we prepare for the upcoming round of 2020 redistricting, the opinions in Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris make clear that what constitutes unlawful racial gerrymandering will prove critical. Although states and localities can act intentionally to preserve and create majority-minority districts, they must do so in a way that complies with the Constitution. First, and put simply, race cannot predominate over every other consideration. And, second, unlawful racial gerrymandering cannot be justified as an attempt to achieve partisan ends.

The decisions provide a workable approach for addressing allegations of unconstitutional racial gerrymanders, while at the same time rejecting the proposition that the intentional creation of a majority-minority election district automatically triggers strict scrutiny. This is clear from the sum and substance of the majority opinions, and from the explicit language in the separate opinions of Justices Samuel Alito and Clarence Thomas in Bethune-Hill and that of Thomas in Cooper. A contrary result would have imperiled legitimate attempts by state legislatures to create majority-minority districts….

Integrated Database (IDB)

Source: Federal Judicial Center, 2017

The FJC, under a working arrangement with the Administrative Office of the U.S. Courts (AOUSC), provides through this site public access to its Integrated Data Base (IDB). The IDB contains data on civil case and criminal defendant filings and terminations in the district courts, along with bankruptcy court and appellate court case information. The FJC receives regular updates of the case-related data that are routinely reported by the courts to the AOUSC. The FJC then post-processes the data, consistent with the policies of the Judicial Conference of the United States governing access to these data, into a unified longitudinal database, the IDB.

As part of this effort and in further cooperation with the Judiciary Data and Analysis Office of the AOUSC, the FJC has created and maintains code books that detail changes in the case data that have occurred since the creation of the IDB, including details about new data fields that may have been added, often due to new legislation expanding the jurisdiction of the federal courts, or data elements that have been deleted and no longer routinely reported by the courts to the AOUSC.

Up to 1992, the reporting period, or statistical year, went from July through June (e.g. statistical year 1990 covered the period July 1, 1989 through June 30, 1990). In 1992, the statistical reporting period was changed to conform to the federal government’s standard fiscal year, October through September (e.g. fiscal year 1993 covered the period October 1, 1992 through September 30, 1993). All of the previous data files in the IDB conform to the old statistical year (SY70-SY91). The 1992 files cover a 15-month time span (July 1, 1991 through September 30, 1992) to accommodate this conversion period. The 1993 file and all subsequent files conform to the new fiscal year (October 1 through September 30).

Detailed information about the datasets can be found in their associated codebooks.

Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments

Source: Tonja Jacobi, Dylan Schweers, Northwestern Law & Econ Research Paper No. 17-03, Date Written: March 14, 2017

From the abstract:
Oral arguments at the Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the justices of the highest court. This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology

Source: Bernard Chao, Catherine S. Durso, Ian P. Farrell, Christopher T. Robertson, University of Denver – Sturm College of Law, Legal Studies Research Paper No. 17-03, February 23, 2017

From the abstract:
The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges’ intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system and exacerbate social unrest.

Although prior research has shown that the police disproportionately target younger people and minority communities, judges tend to be male, white, educated, affluent, and older than the general population. Their intuitions may thus be systematically different. Even worse, cognitive science suggests that judges may have difficulty putting themselves into the shoes of the searched person or considering the reasonableness of the police tactics from an ex ante perspective, without knowledge about the fruits of the search.

With 1200 respondents, we conducted a large-scale survey experiment to test whether, and if so, why, contemporary Fourth Amendment jurisprudence diverges from the societal norms it purports to protect and reflect. We identify a range of privacy expectations for 18 different police practices. We use oversampling, reweighting, and randomization to investigate particular causes of this disparity between judicial and public expectations. We conclude by suggesting better ways forward, so that social science evidence can replace judicial speculation.

Supreme Court vacancy, 2017: An overview

Source: Ballotpedia, 2017

On January 31, 2017, President Donald Trump nominated Neil Gorsuch to succeed Justice Antonin Scalia on the U.S. Supreme Court. Scalia was a member of the U.S. Supreme Court for three decades. If confirmed, Gorsuch would be the seventh justice to have once clerked at the Supreme Court, but the first to serve on the court with the justice with whom he clerked. He clerked for Justice Byron White, who was the first Supreme Court clerk to serve as a justice, and for Justice Anthony Kennedy, who is the senior associate justice on the court. ….

Confirmation hearings on Gorsuch’s nomination before the Senate Judiciary Committee began on March 20, 2017.

On March 16, 2016, President Barack Obama nominated the chief judge of the United States Court of Appeals for the District of Columbia Circuit, Merrick Garland, to the Supreme Court, but the U.S. Senate took no action on the nomination, returning Garland’s nomination to the president at the sine die adjournment of the 114th Congress on January 3, 2017. The 294-day period set a record for the longest interval from nomination to Senate action for any Supreme Court nominee, besting the 125-day interval attending Justice Louis Brandeis’ nomination in 1916.

Page contents:
Timeline
The announcement
Major players in Gorsuch’s nomination
See also
Footnotes

Related:
Potential nominee profile: Neil Gorsuch
Source: Eric Citron, SCOTUSblog, January 13, 2017

Does Neil Gorsuch Believe in Liberty and Equality for All?
Source: David Gans, New Republic, March 20, 2017
The judge’s selective approach to constitutional originalism raises serious questions about his respect for the Second Founding after the Civil War.

Former Law Student: Gorsuch Told Class Women ‘Manipulate’ Maternal Leave
Source: Arnie Seipel, Nina Totenberg, NPR, March 20, 2017

Neil Gorsuch Has Web of Ties to Secretive Billionaire
Source: Charlie Savage, Julie Turkewitz, New York Times, March 14, 2017

The Lies of Originalism
Source: Matt McManus, Jacobin, March 20, 2017
Neil Gorsuch’s originalist philosophy isn’t uniquely unbiased or respectful of democracy. It’s a handmaiden of American reaction.

Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Source: Leah M. Litman, University of California, Irvine School of Law, UC Irvine School of Law Research Paper No. 2017-07, January 22, 2017
This paper describes an opinion by Judge Gorsuch that addresses when federal criminal defendants may file petitions for habeas corpus to challenge their convictions or sentences.

Introduction: A close look at Judge Neil Gorsuch’s jurisprudence

Source: Amy Howe, SCOTUSblog, March 3, 2017

There will never be another Antonin Scalia. When he died on February 13, 2016, the brilliant and pugnacious jurist left behind a legacy that included almost singlehandedly bringing originalism – the idea that the Constitution should be interpreted according to what it meant when it was adopted – to the forefront of legal debate, both at the Supreme Court and more broadly. Accepting the nomination to fill the vacancy left by Scalia’s death, Judge Neil Gorsuch spoke for many when he called Scalia “a lion of the law.”

Like Scalia, Gorsuch describes himself as an originalist: In a 2016 speech at Case Western Reserve University, he told his audience that judges should interpret the Constitution and the law “by focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” But, if he is indeed confirmed, what effect will Gorsuch have on specific areas of the law? Last fall we hosted a symposium in which 25 different authors took closer looks at the effect that a hypothetical conservative or liberal nominee to replace Scalia might have on high-profile issues like reproductive rights, the First Amendment and class actions.

With confirmation hearings for Gorsuch scheduled to begin on March 20, we are no longer operating in the abstract. In his ten years on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has still not weighed on all of the topics that we covered in last year’s symposium – including, for example, affirmative action, abortion and gun rights. But there is still plenty to learn about his jurisprudence and views on other topics, and how those views might compare with Scalia’s. Today we will kick off a series of posts by blog staffers and lawyers from the law firm of Goldstein & Russell, P.C., that will examine those views in greater depth and, we hope, provide a better sense of how Gorsuch might change the court, if at all.

Supreme Court Appointment Process: President’s Selection of a Nominee

Source: Barry J. McMillion, Congressional Research Service, CRS Report, R44253, February 6, 2017

The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. Appointments are usually infrequent, as a vacancy on the nine-member Court may occur only once or twice, or never at all, during a particular President’s years in office. Under the Constitution, Justices on the Supreme Court receive what can amount to lifetime appointments which, by constitutional design, helps ensure the Court’s independence from the President and Congress.

The procedure for appointing a Justice is provided for by the Constitution in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ..Judges of the supreme Court.” The process of appointing Justices has undergone changes over two centuries, but its most basic feature—the sharing of power between the President and Senate—has remained unchanged: To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate.

Political considerations typically play an important role in Supreme Court appointments. It is often assumed, for example, that Presidents will be inclined to select a nominee whose political or ideological views appear compatible with their own. The political nature of the appointment process becomes especially apparent when a President submits a nominee with controversial views, there are sharp partisan or ideological differences between the President and the Senate, or the outcome of important constitutional issues before the Court is seen to be at stake.

Additionally, over more than two centuries, a recurring theme in the Supreme Court appointment process has been the assumed need for professional excellence in a nominee. During recent presidencies, nominees have at the time of nomination, most often, served as U.S. appellate court judges. The integrity and impartiality of an individual have also been important criteria for a President when selecting a nominee for the Court…

Special report on Supreme Court nominee Neil Gorsuch

Source: Reporters Committee for Freedom of the Press, 2017

On January 31, President Donald Trump nominated Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to fill the U.S. Supreme Court vacancy left by the death of Justice Antonin Scalia in February of 2016. Gorsuch does not have an extensive history of deciding cases involving free speech, free press, and freedom of information issues, but the opinions he authored or joined during his more than 10 years on the Tenth Circuit that do touch upon those issues reflect the application of well-established First Amendment principles in a consistent way.

His decisions in libel and invasion of privacy cases show a willingness to uphold protections for speech rights against tort claims even in controversial cases, such as when a television station publicized the names of undercover police officers in a story involving accusations of sexual assault, or when another television station showed a photo of the perpetrator in a sexual assault video. Gorsuch also wrote an opinion applying the “substantial truth” doctrine, which holds that libel claims cannot rest on minor inaccuracies, in a case brought by a federal prisoner identified as a member of the Aryan Brotherhood.

In an area of increasing concern to journalists, Gorsuch joined a panel opinion holding that a broad warrant to search the computers and papers of a journalist accused of criminal libel for any evidence of any crime violated the Fourth Amendment. He also joined in an opinion upholding the constitutionality of a state statute requiring sex offenders to disclose all of their social media and web site accounts to police, acknowledging an interest in anonymous speech but finding that the statute was not a content-based restriction on speech.

His work in Freedom of Information Act, court access, and copyright cases is not substantial, and a campaign finance case stressed the First Amendment interests at stake but was decided as an equal protection case. More detailed summaries of these cases follow. ….