Category Archives: Courts

Bias and Judging

Source: Allison P. Harris, Maya Sen, Annual Review of Political Science, Vol. 22, 2019
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From the abstract:
How do we know whether judges of different backgrounds are biased? We review the substantial political science literature on judicial decision making, paying close attention to how judges’ demographics and ideology can influence or structure their decision making. As the research demonstrates, characteristics such as race, ethnicity, and gender can sometimes predict judicial decision making in limited kinds of cases; however, the literature also suggests that these characteristics are far less important in shaping or predicting outcomes than is ideology (or partisanship), which in turn correlates closely with gender, race, and ethnicity. This leads us to conclude that assuming judges of different backgrounds are biased because they rule differently is questionable. Given that the application of the law rarely provides one objectively correct answer, it is no surprise that judges’ decisions vary according to their personal backgrounds and, more importantly, according to their ideology.

National Archives Releases Kavanaugh Emails on Surveillance Programs Identified in EPIC Suit

Source: Electronic Privacy Information Center, January 7, 2019

EPIC v. NARA Case No. 18-2150

Seeking disclosure of records concerning Brett M. Kavanaugh’s work at the White House between January 2001 and May 2006 related to surveillance programs.

The National Archives has released thousands of emails Justice Kavanaugh sent between January 2001 and July 2003 while working in the White House Counsel’s office. The release includes hundreds of emails concerning controversial White House surveillance programs the Archives previously identified in response to EPIC’s lawsuit. In October, the National Archives revealed that Kavanaugh sent 11 e-mails to John Yoo, the architect of warrantless wiretapping; 227 e-mails about “surveillance” programs and the “Patriot Act;” and 119 e-mails concerning “CAPPS II” (passenger profiling), “Fusion Centers” (government surveillance centers), and the Privacy Act. Subsequent searches revealed thousands more emails sent to Kavanaugh about mass surveillance programs.

Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era?

Source: Nicole B. Porter, Touro Law Review, Forthcoming, Date Written: January 29, 2019

From the abstract:
The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.

Conquerors of the Courts

Source: David Montgomery, Washington Post Magazine, January 2, 2019

Forget Trump’s Supreme Court picks. The Federalist Society’s impact on the law goes much deeper.

…. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett Kavanaugh, whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society. They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events). The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

But having allies on the highest court of the land is just the top layer of the Federalist Society’s expanding sway. For one thing, there is the judicial nomination process itself. When Trump was campaigning in 2016, he made the shrewd and un­or­tho­dox move of publicizing a list of 11 conservative legal stars that he promised to draw from if he got a chance to pick a Supreme Court justice. Leonard Leo, executive vice president of the Federalist Society, played a key role in suggesting the names, along with Trump’s future White House counsel, Don McGahn (also a society member), and the conservative Heritage Foundation. The list was expanded twice to include Gorsuch, Kavanaugh and others. Leo took a leave from his job at the Federalist Society to advise the White House on the confirmation process for Gorsuch and Kavanaugh — reprising a role he played for the George W. Bush White House in putting Roberts and Alito on the court.

The next most important segment of the judiciary — the federal appeals courts — is also filling up with Federalist Society members: Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society ….

How to Save the Supreme Court

Source: Daniel Epps, Ganesh Sitaraman, Vanderbilt Law Research Paper 18-65, Last revised: December 10, 2018

From the abstract:
The consequences of Brett Kavanaugh’s confirmation to replace Justice Anthony Kennedy on the Supreme Court are seismic. The new conservative majority that Kavanaugh completes represents a stunning victory for the Republican party after decades of effort by the conservative legal movement. The result is a Supreme Court whose justices—on both sides—are likely to vote along party lines more consistently than ever before in American history. That development presents a grave threat to the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court to render impartial justice, the Court’s ability to reach settlements of important questions that all Americans can live with is serious jeopardy. Raising the stakes even higher, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further tit-for-tat escalation that would leave the Court’s image, and the rule of law, badly damaged.

The coming crisis can be stopped. But preserving the Court’s legitimacy as an institution above politics will require a complete rethinking of how the Court works and how the Justices are chosen. To save what is good about the Court, we must reject and rethink much of how the Court has operated for more than two centuries. In this Essay, we outline a framework for thinking about saving the Supreme Court, evaluate existing proposals, and offer two distinct reform proposals of our own, which we call the Supreme Court Lottery and the Balanced Court. Whether policymakers adopt these precise proposals or not, however, it is imperative that they search for some kind of reforms along these lines. Saving the Court—by transforming the Court—is our best hope.

Caselaw Access Project

Source: Caselaw Access Project, 2018

The Caselaw Access Project (“CAP”) expands public access to U.S. law.

Our goal is to make all published U.S. court decisions freely available to the public online, in a consistent format, digitized from the collection of the Harvard Law Library.

What data do we have?

CAP includes all official, book-published United States case law — every volume designated as an official report of decisions by a court within the United States.

Our scope includes all state courts, federal courts, and territorial courts for American Samoa, Dakota Territory, Guam, Native American Courts, Navajo Nation, and the Northern Mariana Islands. Our earliest case is from 1658, and our most recent cases are from 2018.

Each volume has been converted into structured, case-level data broken out by majority and dissenting opinion, with human-checked metadata for party names, docket number, citation, and date.

We also plan to share (but have not yet published) page images and page-level OCR data for all volumes.

On the Supreme Court, difficult nominations have led to historical injustices

Source: Calvin Schermerhorn, The Conversation, September 28, 2018

Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh mirrors several notable examples of similarly politicized confirmations in U.S. history.

Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation’s history.

Unlike any other branch of government, Supreme Court justices do not have to face voters at the polls. They have no term limits. Yet the high court is the final arbiter of constitutional rights and protections.

Controversial appointees who were rammed through hearings, or political careerists nominated for strategic reasons and confirmed despite scant vetting, handed down decisions that expanded slavery and rolled back civil rights.

Bad processes do not by themselves yield bad decisions. There have also been thinly vetted justices who have protected and extended civil rights, but such cases are in a minority.

Records, Papers, Decisions: Kavanaugh Records and the Presidential Records Act

Source: Meghan M. Stuessy, Congressional Research Service, CRS Insight, IN10959, August 27, 2018

Since Judge Brett Kavanaugh’s nomination to be an Associate Justice of the Supreme Court was received on July 10, papers detailing his activities in the George W. Bush Administration and the Office of Independent Counsel Kenneth W. Starr have been the subject of ongoing congressional interest. Specifically, many Members of Congress have discussed the public release of Judge Kavanaugh’s records and whether the scope and volume of records released is similar to the records of previous Supreme Court nominees.

The release and maintenance of records pertaining to Judge Kavanaugh’s tenure in these offices is governed by the interaction of the Federal Records Act, the Presidential Records Act (PRA), and the Freedom of Information Act (FOIA). While the Federal Records Act applies to all federal records, such as Judge Kavanaugh’s attorney work files from his tenure with the Office of Independent Counsel, the PRA applies only to records created on behalf of a president, such as records created during the George W. Bush Administration….

Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change

Source: Michael A. Foster, Congressional Research Service, CRS Legal Sidebar, LSB10191, August 24, 2018

Central to the calculation of a federal criminal defendant’s sentence under the United States Sentencing Guidelines (Guidelines) is the defendant’s “relevant conduct.” That term, while encompassing conduct found by a jury or admitted by the defendant, can also include conduct that was not charged, as well as the conduct underlying charges of which the defendant was acquitted. The lower federal courts have almost uniformly approved of the use of acquitted or uncharged conduct at sentencing, so long as a judge finds by a preponderance of the evidence that the conduct occurred. The Supreme Court has also held that the use of acquitted conduct pursuant to the Guidelines presents no double jeopardy issue under the Constitution. Judicial fact-finding at sentencing has not been without its critics, however; legal commentators and multiple Justices have expressed misgivings about the continued judicial reliance on such conduct to increase sentencing ranges under the Guidelines, largely focusing on the constitutional right to a jury trial. In fact, both of President Trump’s nominees to the Supreme Court— Justice Gorsuch and, most recently, Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit— have suggested during their tenures as Circuit judges that they may view judicial fact-finding at sentencing to be constitutionally problematic. Two bills have also recently been introduced in the House of Representatives that would alter the practice legislatively. Given the possibility of judicial or legislative changes in this area of criminal sentencing law, this Sidebar provides an overview of the issue by briefly describing the use of relevant conduct under the Guidelines and tracing the Supreme Court case law that has informed the practice, before addressing judicial commentary and recently proposed legislation regarding the use of acquitted or uncharged conduct at sentencing….