Judicial Behavior and Separation of Powers

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. Orin Kerr says:

    1. True, although that may be because recent Presidents have not appointed their close personal advisors to the Supreme Court.
    2. Was it in the open back then? (I have no idea — just curious.)
    3. I don’t know if it is so hard to imagine. I’ll bet that more than one sitting Justice could be a serious Presidential candidate if he wanted to be.
    4. The President still goes to the Court to swear in a new Justice, and pictures are generally taken of the ten of them hanging out; I haven’t seen any opposition to this.

  2. Gerard Magliocca says:


    I mean “open” in the sense that there is extensive written documentation of these contacts and it was well known in DC circles (though probably not in the popular press) in the 1920s and 1930s. Maybe the same thing goes on now, but I don’t think papers of the Justices who have served in the past fifty years shows that.

  3. A related topic is the State of the Union Address. For many years it has been very partisan with many applause opportunities for the President, among which the SC and the Joint Chiefs are silent. This looks very wrong– to see many applauding and some members silent (not to mention Justice Alito’s antics a few years ago.) Because the speech is partisan, neutral bodies like the SC and the Joint Chiefs should not attend.