How the presence of a vacancy on the Supreme Court might influence judges on the courts of appeals

How President Barack Obama and the Senate will respond to the vacancy left by the passing of Justice Antonin Scalia has attracted considerable commentary, including from the president himself and from at least two Senators. But what about judges who might like a promotion? How will they respond to and act during the current vacancy?

It’s a less addressed question, but one with potentially significant consequences for federal law. Ryan Black and Ryan Owens provide clues for a possible answer in a recent article in the American Journal of Political Science, “Courting the President: How Circuit Judges Alter Their Behavior for Promotion to the Supreme Court.” Their study is focused on judges on the courts of appeals, whereas the president is not so limited in his selection of a nominee, but SCOTUSblog’s Tom Goldstein suggests there is good reason to believe that the nominee will be a federal appellate judge.

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How the presence of a vacancy on the Supreme Court might influence judges on the courts of appeals

How influential are amicus briefs on the Court’s opinions?

Supreme Court Rule 37 instructs attorneys filing “friend-of-the-Court” briefs to avoid repeating arguments made by the parties themselves and refers to such briefs that do as “not favored.” This is not actually true in reality, at least according to a recent study by Paul Collins, Pamela Corley, and Jesse Hamner, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content. The three scholars analyzed majority opinions and amicus briefs from the 2002, 2003, and 2004 Terms, which they selected for being relatively recent Terms of the Court without any membership change. During that time frame, the Justices positively incorporated more language from amicus briefs that “repeat[ed] information contained in the opinions of the lower courts that initially handled the litigation, litigant briefs, and other amicus briefs” (especially the first two factors).

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How influential are amicus briefs on the Court’s opinions?

The Justices’ presidential loyalties

After losing the trust-busting case Northern Securities v. United States, Theodore Roosevelt famously remarked about Justice Oliver Wendell Holmes, nominated to the Court only twenty months prior by the man whose policy he helped strike down: “I could carve out of a banana a judge with more backbone than that.” The relationship between the executive and judicial branches – theoretically independent but on a practical level intertwined through political considerations and personal connections – is now on the minds of many Court-watchers speculating over the implications of the next presidential election for the Supreme Court.

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The Justices’ presidential loyalties

Third parties in Supreme Court criminal justice cases

In the 2012 Term, the Supreme Court split five to four in highly contested Maryland v. King. Justice Anthony Kennedy wrote the majority opinion, but he didn’t thereby give victory to the conservative wing of the Court in an ideologically split decision. Justices Stephen Breyer and Antonin Scalia switched places, so to speak. Scalia wrote the decision in another ideologically mixed, five-to-four case that Term, Florida v. Jardines, joined by conservative Justice Clarence Thomas and liberal Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

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Third parties in Supreme Court criminal justice cases