Davies on Casey Meets the Court @horacefuller @GB2d

Ross E. Davies, George Mason University Antonin Scalia Law School; The Green Bag, has published Casey Meets the Court at 27 Green Bag 2d 169 (2024). Here is the abstract.

Ernest Lawrence Thayer, creator of “Casey at the Bat,” produced three versions of his poetical gift to baseball fans. The Supreme Court of the United States, creator of the “baseball antitrust exception,” produced three versions of its doctrinal gift to baseball owners. In Volume VIII of its series of Re-readings booklets, the Green Bag republished all three of Thayer’s versions of Casey, and compared the arc of their literary development to the judicial arc of development of the Court’s baseball antitrust exception. There was something missing, however, from this parallel treatment of Casey and the Court: the two arcs intersected in the end, via Justice Harry Blackmun. This is their story.

Download the article from SSRN at the link.

Now Available: Peter Charles Hoffer: The Supreme Court Footnote: A Surprising History (NYU Press, 2024) @NYUpress

Now available: Peter Charles Hoffer, The Supreme Court Footnote: A Surprising History (NYU Press, 2024). Here from the publisher's website is a description of the book's contents.

In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail emerged: over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice. The Supreme Court Footnote offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time. At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.

Waldon, Condoravdi, Pustejovsky, Schneider, and Tobia on Reading Law With Linguistics: How Linguistic Theory and Data Inform Statutory Interpretation of Artifact Nouns @kevin_tobia

Brandon Waldon, Georgetown University, Cleo Condoravdi, Stanford University, James Pustejovsky, Brandeis University, Nathan Schneider, Georgetown University, and Kevin Tobia, Georgetown University Law Center; Georgetown University, Department of Philosophy, have published Reading Law with Linguistics: How Linguistic Theory and Data Inform Statutory Interpretation of Artifact Nouns. Here is the abstract.

The Supreme Court will soon decide Garland v. VanDerStok, a case concerning whether a “gun parts kit” or “ghost gun” is a “firearm” subject to regulation under the 1968 Gun Control Act. These “kits,” firearm parts that with additional finishing or combination become an operable firearm, have been used in several mass shootings. For the textualist Supreme Court the case turns on the statute’s meaning, and the briefs and lower court opinions emphasize traditional tools. This article proposes that the Court complement familiar interpretive tools like dictionaries with new ones. We apply insights from linguistic theory, report new data from ordinary language usage, and present an original survey study of ordinary Americans. This evidence supports that the gun parts kits identified by the government fit within the meaning of “firearm.” This analysis has important practical implications for VanDerStok and the regulation of unassembled and unfinished firearms. The article’s case study in the legal interpretation of artifact nouns also carries broader implications. We develop lessons for statutory interpretation theory and legal philosophy.

Download the article from SSRN at the link.

Brown on Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings @ColumbiaLaw @columbiajla

Joanna Brown, Columbia Law School, is publishing Laughing All the Way to the Bench: The Role of Humor in Supreme Court Confirmation Hearings in the Columbia Journal of Law & the Arts. Here is the abstract.

Supreme Court confirmation hearings serve a unique role in our government: they are the only instances where future Justices and their judicial philosophies are televised and subject to the scrutiny of not only the Senate, but also the public. Especially as judicial nominations become increasingly politicized and polarized, appearing trustworthy, likeable, and sensible becomes essential to nominees’ candidacy. Humor thus arms judges with the ability to volunteer positive information, appear humble, showcase values, lighten difficult topics and otherwise bond with Senators. Perhaps more saliently, it enables them to dodge, correct, or mock contentious or unflattering lines of questioning. By studying when, why, and how nominees use humor, we can get a glimpse into their future jurisprudence and decisions on the Bench: avoiding a topic or making light of a question may seem harmless in the hearing, but can actually reveal a nominee’s position on an issue and serve an important truth-telling role.

Download the article from SSRN at the link.

Litman, Murray, and Shaw on A Podcast of One's Own @LeahLitman @ProfMMurray @kateashaw1

Leah M. Litman, University of Michigan School of Law, Melissa Murray, New York School of Law, and Katherine Shaw, Cardozo Law School, have published A Podcast of One's Own at 28 Mich. J. Gender & L. 51 (2021). Here is the abstract.

In this short Essay, we discuss the lack of racial and gender diversity on and around the Supreme Court. As we note, the ranks of the Court’s Justices and its clerks historically have been dominated by white men. But this homogeneity is not limited to the Court’s members or its clerks. As we explain, much of the Court’s broader ecosystem suffers from this same lack of diversity. The advocates who argue before the Court are primarily white men; the experts cited in the Court’s opinions, as well as the experts on whom Court commentators rely in interpreting those opinions, are often white men; and the commentators who translate the Court’s work for the public are also largely white men. We suggest this lack of diversity has consequences both for the Court’s work and for the public’s understanding of the Court. We also identify some of the factors that contribute to the lack of diversity in the Court’s ecosystem, including unduly narrow conceptions of expertise and a rigid insistence on particular notions of neutrality. We also note and discuss our own modest efforts to disrupt these dynamics with Strict Scrutiny, our podcast about the Supreme Court and the legal culture that surrounds it. To be sure, a podcast, by itself, will not dismantle the institutional factors that we have identified in this Essay. Nevertheless, we maintain that our efforts to use the podcast as a platform for surfacing these institutional dynamics, while simultaneously cultivating a more diverse cadre of Supreme Court experts and commentators, is a step in the right direction.

Download the essay at the link.

Nicoletti on The Rise and Fall of Transcendent Constitutionalism in the Civil War Era @UVALaw

Cynthia Nicoletti, University of Virginia School of Law, is publishing The Rise and Fall of Transcendent Constitutionalism in the Civil War Era in volume 106 of the West Virginia Law Review (2020). Here is the abstract.

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war’s nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war’s centripetal energy was a double-edged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists feared that the war could result in the complete destruction of American federalism and the erection of a system based on unitary sovereignty. After the Civil War, the Supreme Court significantly narrowed the revolutionary potential of the Fourteenth Amendment, as generations of legal scholars have noted. What scholars have failed to appreciate, however, is exactly what the Court meant to do in its controversial opinion in the Slaughterhouse Cases. In Slaughterhouse and other post-war cases, the Court sought to provide a counterforce against the forces of transcendent lawmaking, intending to preserve the fundamental distinction between state and federal authority in the United States, which the justices feared might be entirely elided otherwise. To many Americans living in the aftermath of the Civil War, the Supreme Court’s decision to quash the radical potential of transcendent constitutionalism represented a welcome return to the ordinary operation of law in the United States.

Download the article from SSRN at the link.

Tomasovic on Soundscape History and Environmental Law in the Supreme Court

Brian Tomasovic is publishing Soundscape History and Environmental Law in the Supreme Court at 45 Environmental Law 895 (2015).. Here is the abstract.

Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.

The full text is not available for download from SSRN. Here's a draft.

Call For Papers: Pepperdine Law Review Symposium, 2017: The Supreme Court, Politics, and Reform

From the mailbox:

The Supreme Court, Politics and Reform

The 2017 Pepperdine Law Review Symposium

Malibu, California—April 8, 2017

Announcement and Call for Proposals

Next April, the Pepperdine Law Review will hold its annual symposium on the question of whether the political deadlock over the Merrick Garland nomination provides a stark indication the U.S. Supreme Court has become an unduly political institution, and, if so, what internal and external reforms might address this problem.  We invite all interested scholars to submit a relevant proposal to present at the symposium and be considered for publication in a special edition of our law review.

Confirmed featured commentators include:

Akhil Amar (Yale)

Erwin Chemerinsky (UC Irvine)

Michael McConnell (Stanford)

Hon. Richard Posner (by teleconference)

Deanell Tacha (Pepperdine)

Mark Tushnet (Harvard)

 Speaking slots are limited and proposals will be selected on the basis of, among other things, how well they facilitate comprehensive coverage of the questions to be examined.  Where proposals identify problems, those that also explore specific reform measures will be accorded additional weight.  Selected speakers will present their ideas in breakout panel sessions, and are requested to submit papers for potential publication.  However, due to space and resource constraints, not all papers will be selected.  Except for meals provided at the symposium, speakers are expected to cover their own expenses of attending and make their own travel and lodging arrangements.  Symposium staff will be available to make lodging recommendations and assist with other logistics.
 If you are interested in submitting a proposal, please do so by Friday, November 11, 2016.  Proposals and accompanying biographies should be no longer than one page each.  They should be submitted to Sophia Sipsas at sophia.sipsas@pepperdine.edu.  For questions about the conference, you may contact our events manager Suzanne Inman at suzanne.inman@pepperdine.edu.
 We hope that you will consider submitting a proposal to join us for this important dialogue.
 Best regards,

Barry P. McDonald, Professor of Law and Faculty Symposium Advisor

Alice Anderson,  Law Review Symposium  Editor

Rossum on Antonin Scalia's Jurisprudence

Ralph A. Rossum, Claremont McKenna College, has published Antonin Scalia's Jurisprudence: Text and Tradition (University Press of Kansas, 2016). Here is a description of the contents from the publisher's website.

Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court. This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia's more than 600 Supreme Court opinions and dissents—carefully wrought, passionately argued, and filled with well-turned phrases—which portray him as an eloquent defender of an "original meaning" jurisprudence. He also includes analyses of Scalia's Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation. Rossum reveals Scalia's understanding of key issues confronting today's Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment's establishment clause. He also analyzes Scalia's positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress's enforcement power under Section 5 of the Fourteenth Amendment. The first book to fully articulate the contours of Scalia's constitutional philosophy and jurisprudence, Rossum's insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires. 

Stanchi, Berger, and Crawford on Feminist Judgments: Rewritten Opinions of the U.S. Supreme Court

Kathryn Stanchi, Temple University School of Law, Linda L. Berger, UNLV School of Law, and Bridget J. Crawford, Pace University School of Law, are publishing Introduction: U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court in U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Kathryn M. Stanchi, Linda L. Berger & Bridget J. Crawford eds.), Cambridge University Press, 2016). Here is the abstract.

What would United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective? To begin to answer this question, we brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. While feminist legal theory has developed and even thrived within universities, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision-making. Doctrines of stare decisis and judicial language of neutrality can operate to obscure structural bias in the law, making it difficult to see what feminism could bring to judicial reasoning. The twenty-five opinions in this volume demonstrate that judges with feminist viewpoints could have changed the course of the law. The rewritten decisions show that previously accepted judicial outcomes were not necessary or inevitable and demonstrate that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups. The remarkable differences evident in the rewritten opinions also open a path for a long overdue discussion of the real impact that judicial diversity has on law and of the influence that perspective has in judging. Included here are the table of contents for the book, and the introductory chapter to the book.

Download the Introduction from SSRN at the link.

The Hughes Court Docket Books, 1929-1933

Barry Cushman, Notre Dame Law School, has published The Hughes Court Docket Books: The Early Terms, 1929-1933 at  40 J. Sup. Ct. Hist. 103 (2015). Here is the abstract.

For many years, the docket books kept by a number of the justices of the Hughes Court have been held by the Office of the Curator of the Supreme Court. Yet the existence of these docket books was not widely known, and access to them was highly restricted. Recently, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers the first-ever examination of the available docket book entries relevant to what scholars commonly regard as the major decisions rendered during the early years of the Hughes Court, from the 1929 through the 1933 Terms. The decisions examined concern the Commerce Clause, the dormant Commerce Clause, substantive due process, equal protection, fair trade, labor relations, intergovernmental tax immunities, criminal procedure, civil rights, and civil liberties. The information in the docket books sheds particularly fascinating new light on decisions such as Nebbia v. New York, Home Bldg. & Loan Assn. v. Blaisdell, New State Ice Co. v. Liebmann, Powell v. Alabama, Nixon v. Condon, and Burnet v. Coronado Oil & Gas Co. In particular, the docket books often reveal what the justices said to one another at their conference deliberations over major cases, and illuminate many previously unknown changes in justices’ votes between those conferences and the times the decisions were published. Analysis of the voting data contained in the docket books yields some surprising results, and offers a contribution to two bodies of political science scholarship on judicial behavior: the literature on vote fluidity and unanimity norms in the Supreme Court, and the literature on the so-called “freshman effect” that some scholars have found exhibited by the Court’s newest members.

Download the article from SSRN at the link.

The Green Bag Publishes a "Micro-Symposium": Studies of the Supreme Court Justices and Their Work

Ross E. Davies, et al., have published Micro-Symposium: Top Ten Rankings of the U.S. Supreme Court at 18 Green Bag 2d, 2015. Here is the abstract.

A few months ago the Green Bag issued a call for short (1,500 words) essays on “Top Ten Rankings of the Supreme Court.” We were looking for “original and empirical stud[ies] involving some kind of ranking of the Justices or their work, accompanied by illuminating analysis and commentary, that will help readers better understand the Supreme Court of the United States, the people who work there, and the products of their labors.” 18 Green Bag 2d 126. We found plenty. In fact, we received much more good work than we could print. So, we hardened our hearts and picked some excellent exemplars, and the result is this micro-symposium.

Download the text from SSRN at the link.

How the Supreme Court Works: A New Explanation From Cass Sunstein

Cass R. Sunstein, Harvard Law School, has published Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (Oxford University Press, October 2015). Here is a description of the contents from the publisher's website.

Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute. Heroes are willing to invoke the Constitution to invalidate state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicial power, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather say nothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing. As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the four Personae--choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper way to interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works.

Hardcover: $24.95. Also available in eBook format.


 

The Supreme Court's Civil Rights Jurisprudence and Competing Narratives

Peggy Cooper Davis, New York University Law School, Aderson Bellegarde Francois, Howard University School of Law, and Colin P. Starger, University of Baltimore School of Law, have published Beyond the Confederate Narrative. Here is the abstract.

A Confederate narrative haunts Supreme Court doctrine and unnecessarily weakens the Court’s civil rights jurisprudence. This narrative has several sources, but it is most significantly the creature of an embarrassed wish to preserve the right to engage in human chattel slavery. The Confederate narrative protected slave power, survived Reconstruction, and then protected Jim Crow and other forms of human subordination. Although its influence waned during the civil rights movements of the last century, the Confederate narrative survived in doctrine and has reemerged to help defeat claims that certain fundamental human rights are federally guaranteed and federally enforceable. According to what we term the People’s narrative, Reconstruction and the ratification of the 13th, 14th, and 15th amendments changed the constitutional balance of Federal, State, and People power, such that basic civil rights became the People’s privileges and the United States government became the ultimate protector of those rights. We attribute the Court’s failure to recognize important human rights to a failure to take appropriate account of the People’s narrative. This Article identifies and analyzes the dialectic between the Confederate and People’s narratives that has shaped the Supreme Court’s federalism and civil rights doctrine. Through careful exegesis of critical lines of Court opinions – attending especially to overlooked dissents and concurrences embracing the People’s narrative – we demonstrate how the Confederate narrative has subverted post-bellum ideals of human dignity and equal respect for all people. This demonstration is visually represented in an innovative, online series of doctrinal “maps” with links to significant judicial opinions.

Download the article from SSRN at the link.

The Top Ten Most Experienced Oral Advocates Before the U.S. Supreme Court

Jack Metzler has published Top Ten Supreme Court Oral Advocates (Selected Categories). Here is the abstract.

Scholars have noted the rise of experienced oral advocates in the Supreme Court, but until now, the discussion has focused on the simple number of arguments that an advocate has given before the Court. But a simple tally can both overestimate and underestimate an advocates experience. The paper uses data gathered from the Supreme Court's daily calendars and the SCOTUS Search database of oral argument statements to determine top advocates by such measures as argued words per minute and statements per 30-minute argument.

Download the essay from SSRN at the link.

The Supreme Court and the Extraterrorial Application of State Law, 1850-1940

Clyde S. Spillenger, University of California, Los Angeles, School of Law, has published Risk Regulation, Extraterritoriality, and Domicile: The Constitutionalization of American Choice of Law, 1850-1940 in volume 62 of the UCLA Law Review. Here is the abstract.

This Article examines the developments leading to the U.S. Supreme Court’s decisions in the 1930s that legitimated the extraterritorial application of state law in civil litigation. Today, these decisions are thought of as having established the basic constitutional limitations on choice-of-law rulings by state courts. But they are better understood as the culmination of an historical process in which the Court first proscribed the extraterritorial application of statutory rules of decision, and then, as the economic relevance of state boundaries receded and the regulatory function of state-created rules of decision increased in importance, emphatically retreated from that position. The 1930s decisions led to a new conception of choice of law in which a party’s domicile — in particular, the state’s power to apply its rules of decision to protect or regulate its own — came to play as important a role as the territorial locus of particular events in resolving conflicts of laws. This conception, which remains central to much of modern conflicts law, contrasts sharply with the Court’s unwillingness (reinforced by recent decisions) to take domiciliary interests into account when determining the constitutional limitations on personal jurisdiction. Before the Civil War, the jurisprudence of conflict of laws did not, by and large, credit the possibility that the Constitution limited a court’s power to apply forum law to a dispute. Since the rules of decision applicable in antebellum private-law litigation were largely based on common law and other nonmunicipal sources of law, there was little occasion for invoking the Full Faith and Credit Clause as a limitation on state courts’ application of lex loci principles. The key development in altering this conception was the enactment, beginning in the 1850s, of state statutes altering or creating rules of decision for certain kinds of civil litigation. These statutes — in particular, the wrongful death statutes and the later employers’ liability acts — were largely directed to the increasing risk of catastrophic injury and loss in an industrializing society. State courts confronting the multijurisdictional problems raised by these statutes concluded that they could not be applied extraterritorially — that is, to injuries incurred outside the state where they had been enacted. The Supreme Court showed little interest in the issue of extraterritoriality until some states began to enact regulations protecting local policyholders from forfeiture provisions in the life insurance policies issued by the major insurers in the Northeast. The Court in 1914 and 1918 struck down as unconstitutional the application by Missouri courts of the state’s protective statutes to insurance agreements deemed to have been made outside of Missouri. Thus a proscription of extraterritoriality, married to the then-prevailing doctrine of liberty of contract, briefly entered the law of the Constitution. These principles concerning extraterritoriality, based as they were on the formalist notion that only one state has regulatory authority over a given event or transaction, were undermined by the widespread enactment of workers’ compensation laws. In the three 1930s cases considering the legitimate scope of such compensation statutes, Justice Stone (building on earlier opinions authored by Justice Brandeis) decisively affirmed the authority of a state to apply its workers’ compensation statute to injuries suffered outside the state. At a stroke, these decisions interred the idea that only one state has regulatory authority over a given event or transaction; eliminated the relevance of extraterritoriality as a touchstone for constitutional analysis of state courts’ authority to apply forum law in civil lawsuits; and provided crucial support for an emerging model of conflict of laws in which state interests — most notably, a concern for state domiciliaries — supplanted territoriality per se as the principal consideration.

Download the article from SSRN at the link.

The Supreme Court and Comic Books

In which the Justices quote Spiderman:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly.  Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

Kagan, J., for the Court (in Kimble, et al., v. Marvel Entertainment, LLC, decided June 21, 2015).

Bazinga! (to quote Sheldon Cooper)

Tip of the beret to Jack of Kent.

Update: see also discussion of Justice Kagan's Spiderman jokes here, by Matthew Yglesias (Vox).

Supreme Court Celebrity

Richard L. Hasen, University of California, Irvine, has published Essay: Celebrity Justice: Supreme Court Edition as UC Irvine School of Law Research Paper No. 2015-61. Here is the abstract.

It is not your imagination. Supreme Court Justices are in the news more than ever, whether they are selling books, testifying before Congress, addressing a Federalist Society, or American Constitution Society event, or just talking to a Muppet on Sesame Street. The number of books about the Court and particular Justices continues to grow. Websites are now devoted to tracking the Justices’ movements as they crisscross the country (and the world) speaking to various audiences. Justice Ruth Bader Ginsburg is even promoted on T-shirts as the “Notorious R.B.G.,” a riff on the name of famous rap artist Notorious B.I.G. She will soon be the topic of a biopic staring Natalie Portman.

That Supreme Court Justices have become celebrities is not news. Indeed, Justices’ public statements about same-sex marriage or Bush v. Gore often get extensive coverage, and extrajudicial comments on issues in pending cases sometimes lead to (ignored) calls for judicial recusal. However, until now no one has quantified the increase in the number of publicly reported events and interviews done by Justices overall and which Justices engage most reported extrajudicial speech.

Using an original dataset of reported instances of Supreme Court Justice extrajudicial appearances and interviews from 1960 to 2014, I find that the amount of reported extrajudicial speech has increased dramatically, especially in the past decade. From 1960-1969, research identified 196 publicly-reported appearances or interviews by all the Justices combined. This number fell by half (to 95) in the 1970s. From 2005-2014 it rose to 880, a nine-fold fold increase over the 1970s. The data show close to a doubling of the number of reported appearances from the 1970s to the 1980s and from the 1980s to 1990s, and then more than doubling of the number of reported appearances from the 1990s to the 2000s. While a small part of that discrepancy between old and new rates of appearances may be due to research limitations as to older news sources, most of the discrepancy appears due to the great increase in the number of reported public appearances by Justices, driven in part by the swelled number of media outlets looking to interview and report on the Justices.

Further, not all Justices are created equal when it comes to Celebrity Justice. John Marshall Harlan, had a mere 4 reported appearances or interviews from 1960 until he left the Court in 1971. Five Justices had over 175 reported appearances or interviews: Stephen Breyer (250), Ginsburg (206), Anthony Kennedy (179), Scalia (199), and Clarence Thomas (192). Dividing the number of appearances by the number of years a Justice was on the Court from 1960 until 2014 yields a “Celebrity Index.” In that Index, Justice Sonia Sotomayor is the highest scoring celebrity Justice, with a score of 13.8 annual reported appearances, followed by Justice Breyer, with a score of 12.5. Nine of the top ten Justices in the Index are current Supreme Court Justices. Finally, not all types of appearances are the same. Some Justices are much more likely to give interviews than others. Justice Sotomayor has given the largest percentage of interviews, and Justice Kennedy the smallest.

This Essay proceeds in three parts. Part I sets out the evidence of the rise of Celebrity Justices and the variations among Justices. Part II discusses methodological concerns. Part III briefly reflects on the normative question whether the rise of the Celebrity Justice is good or bad. I argue that the answer is mixed, but the trend of public appearances and interviews likely will continue to grow in coming years thanks to a drastically changed media landscape and a politicized Court.

Download the essay from SSRN at the link.

Supreme Court Justices In Pop Culture

Slate columnist Dahlia Lithwick and her guests discuss the suddenly expanding cottage industry of biopics and other entertainment focusing on Supreme Court Justices, including Ruth Bader Ginsburg, Antonin Scalia, and Clarence Thomas, on episode 18 of Slate's podcast Amicus. More here.

But interest in the Justices, or in the Supreme Court generally, as fodder for pop images, isn't new. Consider John Grisham's thriller The Pelican Brief (1992; filmed 1993 with Julia Roberts and Denzel Washington). The Justices turn up in scenes from The People Vs. Larry Flynt (1996), Recount (2008), and Gideon's Trumpet (1980), as well as any number of other films. At least two scholars, Maxwell Bloomfield, and Laura Ray, have examined the image of the Justices in pop culture; their work is quite instructive. Cites below.


Maxwell Bloomfield, The Supreme Court in American Popular Culture, 4 Journal of American Culture 1 (Winter 1981).

Laura Ray, Judicial Fictions: Images of Supreme Court Justices in the Novel, Drama, and Film, 39 Arizona Law Review 151 (1997).

Ruth Bader Ginsburg's Legacy

Paul Schiff Berman, George Washington University Law School, has published Ruth Bader Ginsburg and the Interaction of Legal Systems in The Legacy of Ruth Bader Ginsburg in (Scott Dodson, ed.; Cambridge University Press, 2015). Here is the abstract.

The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?

This Essay surveys some of Justice Ruth Bader Ginsburg’s key writings on the interaction of legal systems, both in law journals and in judicial opinions. This analysis reveals a consistent theme in Ginsburg’s jurisprudence. Across a variety of substantive legal areas, Ginsburg often chooses a path that provides maximum play among the legal systems at issue. Beginning with her earliest scholarly writings, she has tended to oppose doctrines allowing one legal system to block another from adjudicating a dispute, and throughout her later career Ginsburg likewise tends to reject bright-line rules that choose one legal system over another. Instead, she often seems to prefer procedural arrangements that seek accommodation and flexibility in order to ensure that multiple legal systems and a variety of norms and processes are respected. These principles also carry over to Ginsburg’s views about international and transnational law. A committed internationalist, Ginsburg advocates the importance of seeking wisdom from others. This non-dogmatic, deferential approach to plural legal systems characterizes much of her jurisprudence on inter-systemic conflicts, though interestingly such deference does not always apply with as much force in Ginsburg’s opinions concerning tribal communities.

By taking stock of Ginsburg’s navigation of legal pluralism in a set of representative writings, we can better theorize her contribution to a jurisprudential approach that seeks ongoing negotiation in an interlocking world of multiple jurisdictions and multiple legal norms. Just as important, this discussion provides an initial case study for thinking more broadly about possible judicial responses to the reality of legal pluralism.

Download the essay from SSRN at the link.