Category: Supreme Court


In Favor of Wise Latinas

It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.

Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population! Read More


Truthseeking and Criminal Procedure in the Supreme Court’s Last Term

Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.


CJRA Records Before 1998?

Though open government is a priority of the administration, the court system is taking a decidedly different, slower, path.  Here’s one example.  I’d like to collect the CJRA Reports from the Southern District of New York from 1992-1998, when Judge Sotomayor was sitting on that bench. Those Reports would tell us how many motions “pending” Judge Sotomayor had at six month intervals — i.e., how efficient & quick she was in dispensing justice.  Unlike reversal rates, measures of activism based on hierarchical standards,  and citation studies, CJRA motion  statistics would shed light on Judge Sotomayor’s time as a district court judge, and also have the virtue of being easy to translate for the public.  Some judges allow motions to sit on their dockets. Others don’t.  (Discounting for the first year or two on the bench, as many new judges are given a biased set of cases by their colleagues – the dogs of the other judges’ dockets.)

Unfortunately, PACER records CJRA information from 1998 onward, and I can’t seem to figure out where (online or off) the old reports are housed.

Any ideas?


Profile of SCOTUS Blog’s Tom Goldstein

goldstein-tomToday’s Washington Post has an interesting profile of SCOTUSBlog’s Tom Goldstein, a partner at Akin Gump and founder of SCOTUSBlog. From the article:

What makes the brash and balding 38-year-old such a hot media property is, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like “the world’s biggest idiot. I was out there on a limb.”

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site’s host. Despite the unorthodox arrangement, Goldstein says his staff, which includes veteran Supreme Court reporter Lyle Denniston, has complete independence. “Lyle could write that our clients are completely insane and evil and there’d be nothing to stop him,” Goldstein says in his 12th-floor office with a sweeping view of the Washington Monument. . . .

A graduate of American University’s law school, Goldstein founded a small firm — soon joined by his wife — in the third bedroom of their Northwest Washington home. He pursued his goal, to become a Supreme Court practitioner, by cold-calling lawyers in cases that might be headed for high court review. Goldstein was denigrated by more credentialed members of the bar as an overeager ambulance chaser, but the strategy worked: He has argued 21 cases before the Supreme Court. (Goldstein still finances his old firm, which includes his wife and remains at his home, now in Chevy Chase, a few doors down from Chief Justice John Roberts. The firm is an Akin Gump subcontractor.)

White House officials had asked to consult Goldstein on the court vacancy, but by the time he returned from a weekend in Paris, Obama had made his choice. Determined not to miss the action, Goldstein canceled a meeting in Los Angeles with a top producer about a reality series based on his life, the rights to which were bought by Sony Pictures Television. (“They must be smoking crack,” Goldstein says.) A poker fanatic who plays with pots as large as $100,000, he also delayed plans to compete in the World Series of Poker in Las Vegas.

For more, read the article.


The Yale Law Journal Online: Sonia Sotomayor’s Note

YLJ Online

The Yale Law Journal Online* is pleased to present the Note published by Sonia Sotomayor in Volume 88 (1979).  Judge Sotomayor, who has been nominated by President Obama to the Supreme Court of the United States, was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal.   If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman.  Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75.

Judge Sotomayor’s piece, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, analyzed issues regarding Puerto Rico’s ability to maintain rights to its seabed if it pursued statehood.   The Note can be accessed here.

*Effective Fall 2009, The Pocket Part will be integrated into The Yale Law Journal Online, the new online companion and platform of the Journal.  Further details will be forthcoming.


Politicians and Justices

As I’m stuck at the airport, I think it’s blogging time.  (I guess that that’s the legal equivalent of “clobbering time” in the Fantastic Four.)

Every time there is a Supreme Court vacancy, lots of thoughtful people say, “Gee, what the Court really needs is someone with major electoral experience.  A Governor or a Senator.”  But it never happens. Indeed, you have to go back to Earl Warren to find that sort of nominee.  Why does this idea always flame out (no pun intended)?

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Some Supreme Court Trivia

The White House says that Judge Sotomayor has more experience on the federal bench than any Supreme Court nominee in the last one hundred years.  Does anyone know who the last nominee with more was?  (Holmes was on the Massachusetts Supreme Judicial Court for twenty years before TR picked him, but I guess they are referring to someone else.)


What Should a Judge’s Reversal Rate Be?

Via TPM, I found that critics of Judge Sotomayor have made some hay of her reversal rate in the Supreme Court (50% of 6 cases heard).   Though I like data more than the next guy, I will freely admit that this use of quantitative empirical legal studies is demonstrably silly.  I’m going to try to demonstrate to you in this post that a reversal rate of fifty percent is exactly what the state-of-science would predict to be ordinary [or even below average], and a rate of zero (which some might think of as emblematic of a law-abiding judge) tells you that the judge in question might be departing quite severely from precedent.

Let’s start with the obvious.  Most appellate court opinions aren’t subject to a cert petition; almost no cert petitions are granted; only some granted cert petitions end up in full argument and a written opinion by the Supreme Court.  Throughout this long process, parties may settle their cases and exit the system.  They may do soduring briefing before the appellate court or after argument (with some limitations), they may settle after an opinion issues but before a cert petitition is filed, and they may settle thereafter until the Court rules (again, with some limitations based on mootness doctrine).  This potential for settlement after the appellate court issues its mandate creates selection effects.

Though such selection effects are likely less predictable & more dominated by wealth & party characteristics than the immense selection that occurs in the district court, it remains that case that the universe of cases that survive the decision to appeal and the decision to grant certiorari is significantly winnowed.  That winnowing produces a distinct set of cases.   Cases before the Supreme Court contain legal & factual issues more finely balanced than those that issued from the courts below.  To put it another way, cases are argued (usually) because the parties both believe they are going to win.  If the parties are rational & wealth neutral, an assumption that sometimes holds, we should expect that the resulting decisions from the Court will be a bit of a random walk.  (See my earlier post on bankruptcy scholarship for more on this hobby-horse of mine.  Also, note that much of this applies to civil cases, not criminal cases, which create unique settlement patterns.  The actual rate of reversal, over all cases, ranges between 60 and 75%.)

What’s the upshot?  An appellate judge’s “reversal statistic” tells you less than you think about the “merits” of her opinions, or even how such opinions stacked up against governing Supreme Court precedent.  Ironically, when a judge significantly departs from precedent either for or against the plaintiff, settlement may be particularly likely, as the parties’ chances above are quite clear: thus a judge who convinces her colleagues to depart from precedent often will almost never be reviewed or reversed by the Supreme Court. Cases where the judge stuck with precedent, by contrast, may face appeal and reversal, especially if the precedent shifted due to ideological change on the Court itself.

There’s lots of good work on this, much of it recent.  And what it teaches me is that we have no idea what an appropriate reversal rate for an appellate judge ought to be.  It also suggests that there is no way to evaluate the quality of an appellate judge’s work except to read her opinions and decide for yourself what you think of them.  This is a clear instance where statistics mislead.


The Best Post about Sotomayor That You’ll Read This Week

Is by Paul Horwitz.  Seriously.  Best part?

“[T]here is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all — unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I’ve already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on.”

Would write more, but am listening to people chat during a background briefing about Sotomayor for bloggers. And the band plays on.


Sotomayor is the Choice

The AP is reporting the Judge Sotomayor is the choice to replace Justice Souter.  As readers of this blog might guess, I am thrilled by the news.  There will be plenty to say about this over the next few months.