In a recent article in the Law & Society Review, Birth Order, Preferences, and Norms on the U.S. Supreme Court, Kevin McGuire assesses the influence of childhood birth order on the Justices’ later ideological preferences and approaches to jurisprudence. Looking back at the past fifty-five Justices (1900-2010), McGuire begins by finding a correlation between their political ideologies and birth order. His second finding, perhaps of greater interest to readers, is that birth order offers an explanation for the willingness of different Justices to use their judicial authority to effect policy change. A Justice who was a first or only child is more likely than other Justices to hold conservative political ideologies and is less willing to strike down legislation, even when he disagrees with the law. The reverse is true of Justices who were a middle or youngest child; these Justices tend to hold liberal political ideologies and more readily invoke judicial review.

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This week at the Court

By on Jan 31, 2016 at 1:23 pm

The Court is now in recess. The next sitting will begin on February 22. The calendar for that sitting is available here.

 
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The Supreme Court released on Friday the argument calendar for its March sitting, showing that the seven cases challenging the Affordable Care Act’s contraceptive mandate are set for a ninety-minute hearing on March 23.  There will be one more argument sitting, in April.

The daily schedule for March, with a summary of the legal issues at stake, follows the jump.

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Relist Watch

By on Jan 29, 2016 at 4:49 pm

John Elwood reviews Monday’s relisted cases.

With the Iowa caucuses just days away, you’re probably wondering if Relist Watch is endorsing a primary candidate. And having surveyed the field and studied the candidates’ positions on the issues in detail, our answer is: What’s a caucus? Sounds NSFW. But really, you should know us better than that. If we wanted to talk about something shallow and devoid of substance, we would . . . well, come to think of it, that’s what we do every week. So let’s turn to that now.

Regular readers know we are a positive bunch – so positive that we have been known to deploy exclamation points for no apparent reason! On the positive side of this week’s ledger is a pair of two-time relists that achieved the efficient petitioner’s dream: summary reversal. Amgen Inc. v. Harris, 15-278, addressed whether the “fraud on the market” theory developed for securities class actions applies in the context of the Employee Retirement Income Security Act of 1974 (“ERISA”). During the case’s previous trip to One First Street, the Court decided to GVR (“grant, vacate, and remand,” if you’re not into the whole brevity thing) for consideration in light of Fifth Third Bancorp v. Dudenhoeffer, which clarified the standard for pleading that an ERISA plan trustee had violated the duty of prudence. This time around, Amgen persuaded the Supremes that that esteemed court of appeals had misapplied Fifth Third, and in just three-and-a-half pages, the Court held that the complaint did not plead “sufficient facts and allegations to state a claim for breach of the duty of prudence.” James v. City of Boise, 15-493, challenged the Idaho Supreme Court’s, um, idiosyncratic view that when the Supreme Court construes federal law, it “does not have authority to limit the discretion of state courts where such limitation is not contained in the statute.” In just one-and-a-half pages (more than one-tenth of which consisted of a single quote from the Court’s 1816 decision in Martin v. Hunter’s Lessee) the Court clarified that “[t]he Idaho Supreme Court, like any other state or federal court, is bound by this Court’s interpretation of federal law.” Some have speculated that this case is a shot across the bow of the Alabama Supreme Court. The implications of James will become clearer in the future, once we know what has actually happened.

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Friday round-up

By on Jan 29, 2016 at 8:13 am

Briefly:

  • At In A Crowded Theater, Erica Goldberg urges the Court to grant review in Electronic Arts v. Davis, “a Ninth Circuit case involving whether a football video game manufacturer is liable for using the numbers and likenesses of retired football players.”
  • In The Washington Post, Juliet Eilperin reports that, according to White House press secretary Josh Earnest, President Barack Obama “is not interested in sitting on the Supreme Court once he leaves office.”
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In a recent essay, William Baude attempts to articulate a unifying theory for the Court’s sovereign-immunity jurisprudence, building on a theory first proposed by Stephen Sachs.  But as Baude admits, this intellectually elegant rationale will fall apart if the Court overrules Nevada v. Hall – holding that states have no sovereign immunity from suit in the courts of their sister states – as it appears poised to do this Term in Franchise Tax Board of California v. Hyatt.

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Thursday round-up

By on Jan 28, 2016 at 7:00 am

At Verdict, Michael Dorf echoes Justice Elena Kagan’s skepticism in the recent oral argument in Heffernan v. City of Paterson about the possibility of sharply distinguishing (for First Amendment purposes) between rules and reasons. On his own blog, Dorf discusses the legal scholarship relevant to the case.

At Vox, David Roberts explains Monday’s ruling that the Federal Power Act provides the Federal Energy Regulatory Commission with the authority to regulate wholesale market operators’ compensation of demand response bids, asserting that it will “give demand response — a way of coordinating people to not use energy at certain times — a huge boost, which in turn will help reduce carbon emissions and the price of electricity.”  At the Guarini Center, Matthew Christiansen suggests that, although “the decision is, first and foremost, a significant victory for the FERC and its efforts to support demand response, it also goes a long way toward clarifying the legal regime governing the FERC’s exercise of its jurisdiction more generally.”

Coverage of Murr v. Wisconsin, a regulatory takings case in which the Court recently granted review, comes from Bruce Vielmetti, who looks at the human side of the case for the Milwaukee Journal Sentinel; from Chuck Rupnow for the (Eau Claire, Wisc.) Leader-Telegram; and Andrew McIntyre at Law 360.   Commentary comes from Luke Wake, who at NFIB argues that “government cannot manipulate property rights out of existence.”    Continue reading »

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SCOTUSblog is – as we explain in more detail elsewhere on the site – an impartial, journalistic entity that seeks to provide readers with objective information about the Supreme Court and its cases. At the same time, we are in a somewhat unusual position as a news outlet: our publisher, Tom Goldstein, and his law partners regularly appear before the Court, and his firm provides essential financial support for the blog.

To avoid any appearance of a conflict of interest in our reporting, we have adopted a number of policies intended to create a “firewall” between the blog and the firm. Most notably, although Lyle Denniston – an independent contractor who is not an attorney and has never been employed by the firm – once covered the firm’s merits cases for the blog, neither he nor anyone else employed by the blog does so now. But even that arrangement is not ideal for many cases. That’s because many of our merits cases are covered by experts in the field. And while we don’t want those experts to bring their personal views on what the law should be to the table, we do want our experts to call them as they see them – providing our readers, for example, with an objective assessment of which side has the stronger arguments, what the broader implications of the case may be, and (if they feel comfortable doing so) which side seems likely to win. Continue reading »

 
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Wednesday round-up

By on Jan 27, 2016 at 10:16 am

There is more commentary on Monday’s opinion in Montgomery v. Louisiana, holding that Miller v. Alabama – the Court’s 2012 decision prohibiting mandatory sentences of life without parole for juvenile offenders – applies retroactively to cases on state collateral review.  At Hamilton and Griffin on Rights, Leslie Shoebotham concludes that, although the ruling “is a broad decision with constitutional implications that extend beyond its immediate application,” its scope remains to be seen.”  At casetext, Tamar Birckhead suggests that, with the ruling, “the Court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison.”   Continue reading »

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Event announcement

By on Jan 27, 2016 at 9:29 am

On January 27, The George Washington Law Review‘s On the Docket will host a discussion on United States v. Texas. Speakers will include Jonathan Siegel and Joshua Schwartz; Alan Morrison will serve as moderator. More information about the event, which will be held on the George Washington campus and will also be live-tweeted, is available here.

 
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