Search

In the United States, federal judges occupy weighty positions. They interpret the Constitution, define people's rights and liberties, and apply laws and regulations to myriad cases. They also are older than ever. In 2023, the median age of a federal judge reached 70 for the first time. Nearly one-third of federal judges exceeded the age of 75. And ten percent were 85 years or older. The federal judiciary has become a graying judiciary. Recent advances in neuroscience show that cognitive aging leads to processing speed delays, a decline in executive functioning skills like reasoning and memory, and a greater reliance on cognitive shortcuts. Judges are not immune from these effects. Simply put, cognitive aging influences all people. Judges are people. And so cognitive aging must influence them. In Cognitive Aging and the Federal Circuit Courts: How Senescence Influences the Law and Judges, a distinguished team of authors investigates how cognitive aging influences federal circuit court judges. The first-of-their-kind results show that as judges age, they require more time to craft their opinions; they rely more on cognitive shortcuts; their opinions become less complex; they increasingly rely on others to help them write opinions; and their legal influence on panels wanes just as their susceptibility to persuasion increases. These results are sure to transform broad debates about institutional reform.

An excellent introduction to judicial politics as a method of analysis, the eighth edition of Judicial Process and Judicial Policymaking focuses on policy in the judicial process. Rather than limiting the text to coverage of the U.S. Supreme Court, G. Alan Tarr examines the judiciary as the third branch of government, and weaves four major premises throughout the text: (1) Courts in the United States have always played an important role in governing and their role has increased in recent decades; (2) Judicial policymaking is a distinctive activity; (3) Courts make policy in a variety of ways; and (4) Courts may be the objects of public policy, as well as creators.New to the Eighth Edition Discusses appointments by Presidents Donald Trump and Joseph Biden to the federal courts, including the confirmations of Gorsuch, Kavanaugh, Coney Barrett, and Jackson to the Supreme Court Introduces the controversy of the Supreme Court's “shadow docket” Analyzes the legal and political aftermath of the Dobbs v. Jackson Women's Health Organization overruling Roe v. Wade Examines other key state and federal rulings on non-unanimous verdicts in criminal cases, gerrymandering, climate change, and separation between church and state

In this interdisciplinary book in an interdisciplinary series, Dave Bridge crosses methodological boundaries to offer readers insights on the political “push­back” that historically follows Supreme Court rulings with which most Americans disagree. After developing a framework for identifying the Court's rare countermajor­itarian decisions, Bridge shows how those decisions that liberals backed in the 1950s through the 1970s consistently upset con­servative factions in the Democratic Party, which always managed to weather the storms—that is until Roe v. Wade in 1973. In Pushback, Bridge offers compelling hy­potheses about how the two major parties can use unpopular Supreme Court rulings to shift the political momentum and win elections. He then puts those hypotheses to the test, analyzing the political fallout of recent rulings on controversial issues such as Obamacare, same-sex marriage, and religious liberty. Certain to appeal to anyone interested in American political science and history, Pushback closes with a detailed exami­nation of the unequivocally counterma­joritarian Supreme Court ruling of our lifetimes, Dobbs v. Jackson Women's Health Organization, which overturned Roe. For the first time in 50 years, conditions are ripe for a party to win votes by campaign­ing against the will of the Court. Upcom­ing elections will tell if the Republicans overplayed their hand, or if Democrats will play theirs as skillfully as did the GOP after Roe.

This volume explores the many ways in which politics shapes the allegedly nonpartisan judicial system in America, ranging from how judges are selected to the bench to how they rule when they get there. Each title in the Contemporary Debates series examines the veracity of controversial claims or beliefs surrounding a major political/cultural issue in the United States. Each book gives readers a clear and unbiased understanding of current high-interest issues by informing them about falsehoods, half-truths, and misconceptions-and confirming the factual validity of other assertions-that have gained traction in America's cultural and political discourse.This volume in the series provides a deeply researched and even-handed account of the relationship between America's judicial branch-which is supposed to view law through a nonpartisan lens-and the sometimes poisonous partisanship that is such a notorious factor in the nation's other two branches of government. Is political combat over judicial nominations worse than ever before? What impact is the politicization of the courts having on public faith in the legitimacy of the courts and our wider political system? Was former Supreme Court justice Sandra Day right when she asserted that'judicial independence is a bedrock principle of our court system, and we are losing it'? This work will provide insights into all these questions and more.

How to repair the dysfunction at the Supreme Court in a way that cuts across partisan ideologies The Supreme Court, once the most respected institution in American government, is now routinely criticized for rendering decisions based on the individual justices'partisan leanings rather than on a faithful reading of the law. For legal scholar Aaron Tang, however, partisanship is not the Court's root problem. Overconfidence is. Conservative and liberal justices alike have adopted a tone of uncompromising certainty in their ability to solve society's problems with just the right lawyerly arguments. The result is a Court that lurches stridently from one case to the next, delegitimizing opposing views and undermining public confidence in itself. To restore the Court's legitimacy, Tang proposes a different approach to hard cases: one in which the Court acknowledges the arguments and interests on both sides and rules in the way that will do the least harm possible. Examining a surprising number of popular opinions where the Court has applied this approach—ranging from LGBTQ rights to immigration to juvenile justice—Tang shows how the least harm principle can provide a promising and legally grounded framework for the difficult cases that divide our nation.

Known as the “swing justice,” Justice Anthony M. Kennedy provided the key vote determining which way the Supreme Court would decide on some of the most controversial cases in US history. Though criticized for his unpredictable rulings, Kennedy also gained a reputation for his opinion writing and, more so, for his legal rhetoric.This book examines Justice Kennedy's legacy through the lenses of rhetoric, linguistics, and constitutional law. Essays analyze Kennedy's opinion writing in landmark cases such as Romer v. Evans, Obergefell v. Hodges, and Planned Parenthood v. Casey. Using the Justice's rhetoric as an entry point into his legal philosophy, this volume reveals Kennedy as a justice with contradictions and blind spots—especially on race, women's rights, and immigration—but also as a man of empathy deeply committed to American citizenship.A sophisticated assessment of Justice Kennedy's jurisprudence, this book provides new insight into Kennedy's legacy on the Court and into the role that rhetoric plays in judging and in communicating judgment.In addition to the editors, the contributors to this volume are Ashutosh Bhagwat, Elizabeth C. Britt, Martin Camper, Michael Gagarin, James A. Gardner, Eugene Garver, Leslie Gielow Jacobs, Sean Patrick O'Rourke, Susan E. Provenzano, Clarke Rountree, Leticia M. Saucedo, Darien Shanske, Kathryn Stanchi, and Rebecca E. Zietlow.

The ability of US Supreme Court justices to dissent from the majority, to formally register and explain their belief that a case has been wrongly decided, represents a time-honored tradition of perhaps the most august American institution. Yet the impact of these dissents, which allow justices to engage in a dialogue over law and policy, has seldom, if ever, been the focus of dedicated study. Analyzing the influence of past dissents on later Supreme Court majority opinions, this book presents the first comprehensive study of the effects of dissenting opinions and illuminates which types of dissents successfully influence legal and policy debates, which ones fail to make a difference, and why.Drawing on the private papers of the justices and original data, this book demonstrates that court majorities engage with dissents posing a particular threat to their opinions, and that they can be persuaded by thoughtful and careful dissenting arguments.

Each year the public, media, and government wait in anticipation for the Supreme Court to announce major decisions. These opinions have shaped legal policy in areas as important as healthcare, marriage, abortion, and immigration. It is not surprising that parties and outside individuals and interest groups invest an estimated $25 million to $50 million a year to produce roughly one thousand amicus briefs to communicate information to the justices, seeking to impact these rulings. Despite the importance of the Court and the information it receives, many questions remain unanswered regarding the production of such information and its relationship to the Court's decisions. Persuading the Supreme Court leverages the very written arguments submitted to the Court to shed light on both their construction and impact.Drawing on more than 25,000 party and amicus briefs led between 1984 and 2015 and the text of the related court opinions, as well as interviews with former Supreme Court clerks and attorneys who have prepared and led briefs before the Supreme Court, Morgan Hazelton and Rachael Hinkle have shed light on one of the more mysterious and consequential features of Supreme Court decision-making. Persuading the Supreme Court offers new evidence that the resource advantage enjoyed by some parties likely stems from both the ability of their experienced attorneys to craft excellent briefs and their reputations with the justices. The analyses also reveal that information operates differently in terms of influencing who wins and what policy is announced.Using those original interviews and quantitative analyses of a rich original dataset of tens of thousands of briefs, with measures built using sophisticated natural language processing tools, Hazelton and Hinkle investigate the factors that influence what information litigants and their attorneys provide to the Supreme Court and what the justices and their clerks do with that information in deciding cases that set legal policy for the entire country.

Nonjudicial officers (NJOs) permeate the criminal justice and the forensic mental health systems in hidden ways. But what are the impact and consequences of non-lawyers and non- “real judges” hearing cases? Across the nation, numerous cases are outsourced to administrative and other NJOs to decide issues ranging from family court cases involving custody disputes and foster care, to alcohol, substance abuse, as well as mental health and institutionalization issues. Moreover, NJOs may also deal with probation sentencing, conditions of confinement, release restrictions, and even capital punishment. The editors and contributors to the indispensable Justice Outsourced examine the hidden role of these non-judicial officers in the courtroom and administrative settings, as well as the ethical and practical considerations of using NJOs. Written from the perspective of therapeutic jurisprudence by judges, criminologists, lawyers, law professors, psychologists, and sociologists, this volume provides a much-needed wake-up call that emphasizes why the removal of a judge weakens a defendant's rights and dignity and corrupts the administration of justice. However, Justice Outsourced also suggests effective employments of NJOs, revealing the potential of therapeutic principles and procedures to enhance the practical knowledge supplied by nonjudicial decision-makers.

Precedent is an important tool of judicial decision making and reasoning in common law systems such as the United States. Instead of having each court decide cases anew, the rule of precedent or stares decisis dictates that similar cases should be decided similarly. Adherence to precedent promotes several values, including stability, reliability, and uniformity, and it also serves to constrain judicial discretion. Yet while adherence to precedent is important, there are some cases where the United States Supreme Court does not follow it when it comes to constitutional reasoning. Over time the US Supreme Court under its different Chief Justices has approached rejection of its own precedent in different ways and at varying rates of reversal. This book examines the role of constitutional precedent in US Supreme Court reasoning.The author surveys the entire history of the US Supreme Court up until 2020, keying in on decisions regarding when it chose to overturn its own constitutional precedent and why. He explores how the US Supreme Court under its different Chief Justices has approached constitutional precedents and justified its reversal and quantifies which Courts have reversed the most constitutional precedents and why.Constitutional Precedent in US Supreme Court Reasoning is essential reading for law professors and students interested in precedent and its role in legal reasoning. Law libraries which will find this book of importance to their collections on legal reasoning and analysis.

The Constitution was painstakingly crafted to offer guidance on questions and perennial conflicts, on issues where the secular and religious, the mundane and sacred, often flow into one another. Its authors sought to minimize ambiguities, but as they grappled with political architecture, they grappled unavoidably with spiritual ambiguity as well. The ideal of religious liberty enshrined in the Constitution stands in vivid contrast to the tendencies inherent in today's “living constitution.” This book discusses religious liberty in the largest sense.

An analysis of how problematic laws ought to be framed and consideredFrom the murder of George Floyd to the systematic dismantling of voting rights, our laws and their implementation are actively shaping the course of our nation. But however abhorrent a legal decision might be—whether Dred Scott v. Sanford or Plessy v. Ferguson—the stories we tell of the law's failures refer to their injustice and rarely label them in the language of infamy. Yet in many instances, infamy is part of the story law tells about citizens'conduct. Such stories of individual infamy work on both the social and legal level to stigmatize and ostracize people, to mark them as unredeemably other. Law's Infamy seeks to alter that course by making legal actions and decisions the subject of an inquiry about infamy. Taken together, the essays demonstrate how legal institutions themselves engage in infamous actions and urge that scholars and activists label them as such, highlighting the damage done when law itself acts infamously and focus of infamous decisions that are worthy of repudiation. Law's Infamy asks when and why the word infamy should be used to characterize legal decisions or actions. This is a much-needed addition to the broader conversation and questions surrounding law's complicity in evil.

In addition to citing case law, Judges have traditionally used recognized legal maxims or treatise citations to support their rulings. But today's judiciary is becoming more apt to use pop culture, modern music, as well as humor in their decisions. This book gives examples of how songs and their lyrics have influenced judges, provided themes for their decisions, and helped make existing law more accessible to lay persons. Mark W. Klingensmith examines the clever ways judges have used them to enhance their judicial writings and how modern day musical lyrics that have effectively become recognized legal maxims by the courts.judicial writings.

Praise for In Chambers:'This new collection of essays, including some by former clerks, takes readers inside justices'chambers for a look at clerkship life.... [T]he best parts of the book are the behind-the-scenes descriptions of life at the court.'— Associated Press'An excellent book... It's interesting for many different reasons, not the least of which as a reminder of how much of a bastion of elitism the Court has always been.'— Atlantic MonthlyIn his earlier books, In Chambers and Of Courtiers and Kings, Todd C. Peppers provided an insider's view of the Supreme Court from the perspective of the clerks who worked closely with some of its most important justices. With Of Courtiers and Princes, he concludes the trilogy by examining the understudied yet equally fascinating role of lower court clerks—encompassing pioneering women and minorities.Drawing on contributions from former law clerks and judicial scholars—including an essay by Ruth Bader Ginsburg—the book provides an inside look at the professional and personal bonds that form between lower court judges and their clerks. While the individual essays often focus on a single judge and his or her corps of law clerks, including their selection process, contributions, and even influence, the book as a whole provides a macro-level view of the law clerk's role in the rapidly changing world of lower federal and state courts, thereby offering an unusual yet crucial perspective on the inner workings of our judicial system.

United States Supreme Court justices make decisions that have a profound impact on American society. Empirical legal scholars have portrayed justices as either single-minded or strategic seekers of policy, and there is little room in these theories for things like law, reputation, or personality. This book offers a fresh perspective that will jar Supreme Court scholarship out of complacency. It argues that justices'personalities influence their behavior, which in turn influences legal development and the United States Constitution. This impressive group of authors exhaustively examine every part of the Court's decision-making process, and focus on the trait of conscientiousness and how it influences justices over nine different empirical contexts, from agenda setting to writing the Court's opinions. The Conscientious Justice is an important and comprehensive account of judging that restructures existing approaches to analyzing the High Court.

Philosophers have been puzzled for quite some time by the fact that intelligent and generally reasonable individuals who are equally well-informed and familiar with the same bodies of evidence still disagree with one another. Legal theorists wonder why this is puzzling for philosophers in the first place as disagreement is the very foundation of their work. This book, placed at the intersection of philosophical epistemology and jurisprudence, deals with the theoretical challenges that disagreements between judges create. The philosophical debate is applied to German and American legal disputes. How can such disagreements be integrated into the general philosophical debate on »peer disagreement« and into the legal theory of judicial decisionmaking? How should one deal with such disagreements under the existing legal framework but also in terms of legal policy?

The government has no power greater than to take away a person's freedom or even life. We trust our judges to balance justice and mercy to arrive at an appropriate sentence when a person has been convicted of a crime. Yet to a large extent, how a judge goes about this process is invisible to the lawyers in a case, the public, and even to the criminal defendant being sentenced. To be sure, judges often give reasons for their sentences, such as explaining when their sentence is dictated by a statute requiring a mandatory minimum sentence or how the punish-ment fits under the sentencing guidelines. But the human dimension of this - how a judge actually balances justice and mercy, what a judge feels in putting a person in prison for a long time or condemning a person to death - is rarely publicly explored. Judge Frederic Block, a long-time federal district court judge, has written a book which describes the experience of a human being punishing other human beings. Judge Block does this by telling the stories of some of the cases that he has handled since coming on the bench in 1994. Each of the cases is compelling and Judge Block is a great storyteller. Each evokes important issues concerning our crim-inal justice system. Judge Block is candid in sharing his thinking and his feelings as he approached imposing punishments in these instances. He is remarkably self-reflective, often describing his concerns that his religion or the unfounded accusations against him or his recent reading might be unduly influencing the sentences he is imposing. Along the way, he tells us a lot about the workings of the federal courts and also about his life. This is a book that can be enjoyed simply for its stories and its humanity. It is about the crimes people commit and what a judge considers in punishing them. It is accessible to lawyers and non-lawyers alike.

An excellent introduction to judicial politics as a method of analysis, the seventh edition of Judicial Process and Judicial Policymaking focuses on policy in the judicial process. Rather than limiting the text to coverage of the U.S. Supreme Court, G. Alan Tarr examines the judiciary as the third branch of government, and weaves four major premises throughout the text: 1) Courts in the United States have always played an important role in governing and their role has increased in recent decades; 2) Judicial policymaking is a distinctive activity; 3) Courts make policy in a variety of ways; and 4) Courts may be the objects of public policy, as well as creators.New to the Seventh Edition■ New cases through the end of the Supreme Court's 2018 term.■ New case studies on the Garland-Gorsuch controversy; plea negotiation (of special relevance to the Trump administration); and the litigation over Obamacare, as well as brief coverage of the Kavanaugh confirmation.■ Expanded coverage of the crisis in the legal profession, sentencing with attention to the rise of mass incarceration and the issue of race, constitutional interpretation and the rise of “originalism,” and same-sex marriage.■ Updated tables and figures throughout.■ A new online e-Resource including edited cases, a glossary of terms, and resources for further learning.This text is appropriate for all students of judicial process and policy.

This book examines the significance of values in Supreme Court decision making. Drawing on theories and techniques from psychology, it focuses on the content analysis of judgments and uses a novel methodology to reveal the values that underpin decision making. The book centres on cases which divide judicial opinion: Dworkin's hard cases'in which the result is not clearly dictated by statute or precedent'. In hard cases, there is real uncertainty about the legal rules that should be applied, and factors beyond traditional legal sources may influence the decision-making process. It is in these uncertain cases – where legal developments can rest on a single judicial decision – that values are revealed in the judgments. The findings in this book have significant implications for developments in law, judicial decision making and the appointment of the judiciary.

NEW YORK TIMES BESTSELLER • Justice Neil Gorsuch reflects on his journey to the Supreme Court, the role of the judge under our Constitution, and the vital responsibility of each American to keep our republic strong. As Benjamin Franklin left the Constitutional Convention, he was reportedly asked what kind of government the founders would propose. He replied, “A republic, if you can keep it.” In this book, Justice Neil Gorsuch shares personal reflections, speeches, and essays that focus on the remarkable gift the framers left us in the Constitution. Justice Gorsuch draws on his thirty-year career as a lawyer, teacher, judge, and justice to explore essential aspects our Constitution, its separation of powers, and the liberties it is designed to protect. He discusses the role of the judge in our constitutional order, and why he believes that originalism and textualism are the surest guides to interpreting our nation's founding documents and protecting our freedoms. He explains, too, the importance of affordable access to the courts in realizing the promise of equal justice under law—while highlighting some of the challenges we face on this front today. Along the way, Justice Gorsuch reveals some of the events that have shaped his life and outlook, from his upbringing in Colorado to his Supreme Court confirmation process. And he emphasizes the pivotal roles of civic education, civil discourse, and mutual respect in maintaining a healthy republic. A Republic, If You Can Keep It offers compelling insights into Justice Gorsuch's faith in America and its founding documents, his thoughts on our Constitution's design and the judge's place within it, and his beliefs about the responsibility each of us shares to sustain our distinctive republic of, by, and for “We the People.”

This book provides a rare view of a creative scholar at work during a highly productive phase of his career. It shows him as an innovator, theorist, methodologist, “missionary,” critic, and scientist, but he remains, withal, in his fashion, a humanist. He believes that institutions and processes—particularly law, politics, and scholarship—are best understood in human terms. With Holmes, he believes that law is a prediction of what courts will do; hence, to understand law it is necessary to understand judicial behavior. A full explanation of a judge's behavior would take into account his health (both physical and mental), his personality, his culture and society, and his ideology. Glendon Schubert concedes this but focuses primarily on ideology because he believes the other variables are sublimated in it. Therefore, to him, ideology—attitudes toward human values—is the basic explanation of judicial behavior, and jurisprudence is necessarily human.The studies in this volume are important in the study of judicial behavior, for they broke new ground, and some were forerunners of major books, such as The Judicial Mind, which was published in 1965. Each shows Professor Schubert's concern at the time they were written, and taken together they show the movement and growth of his ideas and interests.

The United States Supreme Court exists to resolve constitutional disputes among lower courts and the other branches of government, allowing elected officials, citizens, and businesses to act without legal uncertainty. American law and society function more effectively when the Court resolves these ambiguous questions of Constitutional law. Since lower courts must defer to its reasoning, the Court should also promulgate clear and consistent legal doctrine, giving a reason for its judgment that a majority of justices support. Yet a Court that prioritizes resolving many disputes will at times produce contradictory sets of opinions or fail to provide a rationale and legal precedent for its decision at all. In either case, it produces an unreasoned judgment. Conversely, a Court that prioritizes logically consistent doctrine will fail to resolve many underlying disputes in law and society. Inconsistency and Indecision in the United States Supreme Court demonstrates that over time, institutional changes, lobbied for by the justices, substantially reduced unreasoned judgments in the Court's output, coinciding with a reduction in the Court's caseload. Hence, the Supreme Court historically emphasized the first goal of dispute resolution, but evolved into a Court that prioritizes the second goal of logically consistent doctrine. As a result, the Court today fails to resolve more underlying questions in law and society in order to minimize criticism of its output from other elites. In so doing, the modern Court often fails to live up to its Constitutional obligation.

In this groundbreaking analysis of Supreme Court decision-making, Andrew Coan explains how judicial caseload shapes the course of American constitutional law and the role of the Court in American society.Compared with the vast machinery surrounding Congress and the president, the Supreme Court is a tiny institution that can resolve only a small fraction of the constitutional issues that arise in any given year. Rationing the Constitution shows that this simple yet frequently ignored fact is essential to understanding how the Supreme Court makes constitutional law.Due to the structural organization of the judiciary and certain widely shared professional norms, the capacity of the Supreme Court to review lower-court decisions is severely limited. From this fact, Andrew Coan develops a novel and arresting theory of Supreme Court decision-making. In deciding cases, the Court must not invite more litigation than it can handle. On many of the most important constitutional questions—touching on federalism, the separation of powers, and individual rights—this constraint creates a strong pressure to adopt hard-edged categorical rules, or defer to the political process, or both.The implications for U.S. constitutional law are profound. Lawyers, academics, and social activists pursuing social reform through the courts must consider whether their goals can be accomplished within the constraints of judicial capacity. Often the answer will be no. The limits of judicial capacity also substantially constrain the Court's much touted—and frequently lamented—power to overrule democratic majorities. As Rationing the Constitution demonstrates, the Supreme Court is David, not Goliath.

Are Supreme Court justices swayed by the political environment that surrounds them? Most people think'yes,'and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however. As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of. The evidence is strong: Justices take cues primarily from the people who are closest to them and whose approval they care most about: political, social, and professional elites. In an era of strong partisan polarization, elite social networks are largely bifurcated by partisan and ideological loyalties, and the Justices reflect that division. The result is a Court in which the Justices'ideological stances reflect the dominant views in the appointing president's party. Justices such as Clarence Thomas and Ruth Bader Ginsburg live largely in a milieu populated by like-minded elites. Today's partisanship on the Court also stems from the emergence of conservative legal networks such as the Federalist Society, that reinforce the conservative leanings of Republican appointees. For the Warren and Burger Courts, elite social networks were dominated by liberal elites and not divided by political party or ideology. A fascinating examination of the factors that shape decision-making, The Company They Keep will reshape our understanding of how political polarization occurs on the contemporary Supreme Court.

Despite the tepid reception of Regents of the University of California v. Bakke in 1978, the Supreme Court has thrice affirmed its holding: universities can use race as an admissions factor to achieve the goal of a diverse student body. This book examines the process of rhetorical invention followed by Justice Lewis F. Powell Jr., his colleagues, and other interlocutors as they sifted through arguments surrounding affirmative action policies to settle on diversity as affirmative action's best constitutional justification. Here M. Kelly Carr explores the goals, constraints, and argumentative tools of the various parties as they utilized the linguistic resources available to them, including arguments about race, merit, and the role of the public university in civic life. Using public address texts, legal briefs, memoranda, and draft opinions, Carr looks at how public arguments informed the amicus briefs, chambers memos, and legal principles before concluding that Powell's pragmatic decision making fused the principle of individualism with an appreciation of multiculturalism to accommodate his colleagues'differing opinions. She argues that Bakke is thus a legal and rhetorical milestone that helped to shift the justificatory grounds of race-conscious policy away from a recognition of historical discrimination and its call for reparative equality, and toward an appreciation of racial diversity.

Winner of the Thomas M. Cooley Book Prize, Georgetown Center on the ConstitutionWhy do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution's language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy.Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate.Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon's account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.

Judicial Behavior and Policymaking introduces students to the politics of judging, exploring why judges make the decisions they do, who has the power to influence judicial decision-making, and what the consequences of court decisions are for policymaking. Further, this text familiarizes students with the methods that professional political scientists use to conduct research about the courts, including the quantitative analysis of data. Designed for undergraduates and graduate students alike, this accessible and engaging text provides a thorough introduction to the world of judicial politics.

With experience as both a trial and appellate judge, Charles Benjamin Schudson knows the burdens on judges. With engaging candor, he takes readers behind the bench to probe judicial minds analyzing actual trials and sentencings—of abortion protesters, murderers, sex predators, white supremacists, and others. He takes us into chambers to hear judges forging appellate decisions about life and death, multimillion-dollar damages, and priceless civil rights. And, most significantly, he exposes the financial, political, personal, and professional pressures that threaten judicial ethics and independence. As political attacks on judges increase, Schudson calls for reforms to protect judicial independence and for vigilance to ensure justice for all. Independence Corrupted is invaluable for students and scholars, lawyers and judges, and all citizens concerned about the future of America's courts.

Since 2007, the Supreme Court of Pakistan has emerged as a dominant force in Pakistani politics through its hyper-active use of judicial review, or the power to overrule Parliament's laws and the Prime Minister's acts. This hyper-activism was on display during the Supreme Court's unilateral disqualification of Prime Minister Yousef Raza Gilani in 2012 under the leadership of Chief Justice Iftikhar Chaudhry. Despite the Supreme Court's practical adoption of restraint subsequent to the retirement of Chief Justice Chaudhry in 2013, the Court has once again disqualified a prime minister, Nawaz Sharif, due to allegations of corruption in 2017. While many critics have focused on the substance of the Court's decisions in these cases, sufficient focus is not paid to the amorphous case-selection process of the Supreme Court of Pakistan. In order to compare the relatively unregulated process of case-selection in Pakistan to the more structured processes utilized by the Supreme Courts of the United States'and India, this book aims to understand the historical roots of judicial review in each country dating back to the colonial era extending through the foundational period of each nation impacting present-day jurisprudence. As a first in its kind, this study comparatively examines these periods of history in order to contextualize a practical prescription to standardize the case-selection process in the Supreme Court of Pakistan in a way that retains the Court's overall power while limiting its involvement in purely political issues.This publication offers a critical and comparative view of the Supreme Court of Pakistan's recent involvement in political disputes due to the lack of a discerning case-selection system that has otherwise been adopted by the Supreme Courts of India and the United States'to varying degrees. It will be of interest to academics in the fields of Asian Law, South Asian Politics and Law and Comparative Law.

The 2016 presidential election campaign and its aftermath have underscored worrisome trends in the present state of our democracy: the extreme polarization of the electorate, the dismissal of people with opposing views, and the widespread acceptance and circulation of one-sided and factually erroneous information. Only a small proportion of those who are eligible actually vote, and a declining number of citizens actively participate in local community activities. In Flunking Democracy, Michael A. Rebell makes the case that this is not a recent problem, but rather that for generations now, America's schools have systematically failed to prepare students to be capable citizens. Rebell analyzes the causes of this failure, provides a detailed analysis of what we know about how to prepare students for productive citizenship, and considers examples of best practices. Rebell further argues that this civic decline is also a legal failure—a gross violation of both federal and state constitutions that can only be addressed by the courts. Flunking Democracy concludes with specific recommendations for how the courts can and should address this deficiency, and is essential reading for anyone interested in education, the law, and democratic society.

The single most important issue in American constitutional law is the role the Supreme Court should play in interpretation of the constitution. This issue has been a source of controversy since at least 1803, when Chief Justice John Marshall proclaimed that the Supreme Court could declare acts of Congress unconstitutional. But public attention has been refocused by the recent debate between Attorney General Edwin Meese and Supreme Court Justice William Brennan. The Attorney General admonished the Justices to confine themselves to strict construction of the Constitution-to apply the Constitution as the framers intended. Justice Brennan rejected this as errant and arrogant because the framers had certainly not thought about the specific problems facing the country today.

Judicial decision-making may ideally be impartial, but in reality it is influenced by many different factors, including institutional context, ideological commitment, fellow justices on a panel, and personal preference. Empirical literature in this area increasingly analyzes this complex collection of factors in isolation, when a larger sample size of comparative institutional contexts can help assess the impact of the procedures, norms, and rules on key institutional decisions, such as how appeals are decided. Four basic institutional questions from a comparative perspective help address these studies regardless of institutional context or government framework. Who decides, or how is a justice appointed? How does an appeal reach the court; what processes occur? Who is before the court, or how do the characteristics of the litigants and third parties affect judicial decision-making? How does the court decide the appeal, or what institutional norms and strategic behaviors do the judges perform to obtain their preferred outcome? This book explains how the answers to these institutional questions largely determine the influence of political preferences of individual judges and the degree of cooperation among judges at a given point in time. The authors apply these four fundamental institutional questions to empirical work on the Supreme Courts of the US, UK, Canada, India, and the High Court of Australia. The ultimate purpose of this book is to promote a deeper understanding of how institutional differences affect judicial decision-making, using empirical studies of supreme courts in countries with similar basic structures but with sufficient differences to enable meaningful comparison.

Interest in social science and empirical analyses of law, courts and specifically the politics of judges has never been higher or more salient. Consequently, there is a strong need for theoretical work on the research that focuses on courts, judges and the judicial process. The Routledge Handbook of Judicial Behavior provides the most up to date examination of scholarship across the entire spectrum of judicial politics and behavior, written by a combination of currently prominent scholars and the emergent next generation of researchers. Unlike almost all other volumes, this Handbook examines judicial behavior from both an American and Comparative perspective. Part 1 provides a broad overview of the dominant Theoretical and Methodological perspectives used to examine and understand judicial behavior, Part 2 offers an in-depth analysis of the various current scholarly areas examining the U.S. Supreme Court, Part 3 moves from the Supreme Court to examining other U.S. federal and state courts, and Part 4 presents a comprehensive overview of Comparative Judicial Politics and Transnational Courts. Each author in this volume provides perspectives on the most current methodological and substantive approaches in their respective areas, along with suggestions for future research. The chapters contained within will generate additional scholarly and public interest by focusing on topics most salient to the academic, legal and policy communities.

Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court's First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speech decisions embody a version of expressive freedom that Professor Magarian calls'managed speech'. Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts'ascent in 2005 and Justice Antonin Scalia's death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate. Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion:'dynamic diversity.'A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.

How does the American judiciary impact the development of legal and social policies in the United States? How are the state and federal court systems constructed? This book answers these questions and many others regarding politics, the U.S. courts, and society.This single-volume work provides a comprehensive and contemporary treatment of the historical development of state and federal courts that clearly documents how they have evolved into significant political institutions. It addresses vital and highly relevant subjects such as the constitutional origins of courts, the nature of judicial selection and service, and the organization of courts and their administration. The book explains civil and criminal legal proceedings, the political impact of judicial rulings, and the restraints placed upon the exercise of judicial powers. Readers will come away with an understanding of the key principles of constitutional interpretation and judicial review as well as judicial independence, what factors affect access to courts, the underlying politics of state judicial campaigns, and the confirmation of presidential appointments to the federal bench. The book covers historical and contemporary court perspectives on major issues, such as same-sex marriage, the Affordable Care Act, campaign financing, gun rights, free speech and religious freedom, racial discrimination, affirmative action, criminal procedure and punishments, property rights, and voting rights.

To a historian the most interesting thing about decisions is the fact that everyone talks about them. No one interested in social ideas can fail to notice how large a part the word'decision'has come to play in the vocabulary of moral and political discourse. It meets one on every page. Inevitably one asks,'Why?'Why is there so much talk of decisions and of those who are said to make them? Are there any ideological reasons for it?

Thoroughly revised and updated for this Fifth Edition, Judges on Judging offers insights into the judicial philosophies and political views of those on the bench. Broad in scope, this one-of-a-kind book features'off-the-bench'writings and speeches in which Supreme Court justices, as well as lower federal and state court judges, discuss the judicial process, constitutional interpretation, judicial federalism, and the role of the judiciary. Engaging introductory material provides students with necessary thematic and historical context making this book the perfect supplement to present a nuanced view of the judiciary.'Judges on Judging is consistently rated by my students as their favorite book in my class. No other single volume provides them with such a clear and accessible sense of what judges do, what courts do, and the way judges think about their roles and their courts.'—Douglas Edlin, Dickinson College

Arguing that good legal reasoning remains the best device by which we can ensure that judicial impartiality, the rule of law, and social trust and peace are preserved, Thomas F. Burke and Lief H. Carter present an accessible and lively text that analyzes the politics of the judicial process. Looking at the larger social and institutional contexts that affect the rule of law - including religious beliefs and media coverage of the courts - Reason in Law uses cases ripped from the headlines to illustrate its theory in real-world practice.

This book provides an introduction to the legal reasoning and the modes of persuasion and justification used by Supreme Court justices in the United States, as well as others engaged in constitutional adjudication. It is designed to be used as a supplement to a constitutional law casebook.

Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner's analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.

This book is a selection of articles and chapters published over Martin Golding's academic career. Golding's approach to the philosophy of law is that it contains conceptual and normative issues and in this volume logical issues in legal reasoning are examined, and various theories of law are critically discussed. Normative questions are dealt with regarding the rule of law and criminal law defenses, and the concept of rights and the terminology of rights are analyzed. Much of Golding's work is critical-historical as well as constructive. This volume will prove an informative and useful collection for scholars and students of the philosophy of law.

Not so long ago, being aggressively'pro–free speech'was as closely associated with American political liberalism as being pro-choice, pro–affirmative action, or pro–gun control. With little notice, this political dynamic has been shaken to the core. The Right's First Amendment examines how conservatives came to adopt and co-opt constitutional free speech rights. In the 1960s, free speech on college campuses was seen as a guarantee for social agitators, hippies, and peaceniks. Today, for many conservatives, it represents instead a crucial shield that protects traditionalists from a perceived scourge of political correctness and liberal oversensitivity. Over a similar period, free market conservatives have risen up to embrace a once unknown, but now cherished, liberty: freedom of commercial expression. What do these changes mean for the future of First Amendment interpretation? Wayne Batchis offers a fresh entry point into these issues by grounding his study in both political and legal scholarship. Surveying six decades of writings from the preeminent conservative publication National Review alongside the evolving constitutional law and ideological predispositions of Supreme Court justices deciding these issues, Batchis asks the conservative political movement to answer to its judicial logic, revealing how this keystone of our civic American beliefs now carries a much more complex and nuanced political identity.

The Judicial Process: Law, Courts, and Judicial Politics is an all-new, concise yet comprehensive core text that introduces students to the nature and significance of the judicial process in the United States and across the globe. It is social scientific in its approach, situating the role of the courts and their impact on public policy within a strong foundation in legal theory, or political jurisprudence, as well as legal scholarship. Authors Christopher P. Banks and David M. O'Brien do not shy away from the politics of the judicial process, and offer unique insight into cutting-edge and highly relevant issues. In its distinctive boxes,'Contemporary Controversies over Courts'and'In Comparative Perspective,'the text examines topics such as the dispute pyramid, the law and morality of same-sex marriages, the'hardball politics'of judicial selection, plea bargaining trends, the right to counsel and'pay as you go'justice, judicial decisions limiting the availability of class actions, constitutional courts in Europe, the judicial role in creating major social change, and the role lawyers, juries and alternative dispute resolution techniques play in the U.S. and throughout the world. Photos, cartoons, charts, and graphs are used throughout the text to facilitate student learning and highlight key aspects of the judicial process.

This text is a general introduction to American judicial process. The authors cover the major institutions, actors, and processes that comprise the U.S. legal system, viewed from a political science perspective. Grounding their presentation in empirical social science terms, the authors identify popular myths about the structure and processes of American law and courts and then contrast those myths with what really takes place. Three unique elements of this'myth versus reality'framework are incorporated into each of the topical chapters:1)'Myth versus Reality'boxes that lay out the topics each chapter covers, using the myths about each topic contrasted with the corresponding realities.2)'Pop Culture'boxes that provide students with popular examples from film, television, and music that tie-in to chapter topics and engage student interest.3)'How Do We Know?'boxes that discuss the methods of social scientific inquiry and debunk common myths about the judiciary and legal system.Unlike other textbooks, American Judicial Process emphasizes how pop culture portrays—and often distorts—the judicial process and how social science research is brought to bear to provide an accurate picture of law and courts. In addition, a rich companion website will include PowerPoint lectures, suggested topics for papers and projects, a test bank of objective questions for use by instructors, and downloadable artwork from the book. Students will have access to annotated web links and videos, flash cards of key terms, and a glossary.

This book studies the US Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, which often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules, using them as premises for developing consistent unitary theories to meet current social conditions. This model requires that judicial opinions be informed by a wide range of considerations, including established legal standards, the insights derived from deductive and inductive reasoning, the lessons learned from history and custom, and an examination of the social and economic consequences of the decision.

Until President Jimmy Carter launched an effort to diversify the lower federal courts, the U.S. courts of appeals had been composed almost entirely of white males. But by 2008, over a quarter of sitting judges were women and 15 percent were African American or Hispanic. Underlying the argument made by administration officials for a diverse federal judiciary has been the expectation that the presence of women and minorities will ensure that the policy of the courts will reflect the experiences of a diverse population. Yet until now, scholarly studies have offered only limited support for the expectation that judges'race, ethnicity, or gender impacts their decision making on the bench. In Diversity Matters, Susan B. Haire and Laura P. Moyer employ innovative new methods of analysis to offer a fresh examination of the effects of diversity on the many facets of decision making in the federal appellate courts.Drawing on oral histories and data on appellate decisions through 2008, the authors'analyses demonstrate that diversity on the bench affects not only individual judges'choices but also the overall character and quality of judicial deliberation and decisions. Looking forward, the authors anticipate the ways in which these process effects will become more pronounced as a result of the highly diverse Obama appointment cohort.

The Court's decisions are interpreted and disseminated via the media. During this process, the media paints an image of the Court and its business. Like any artist, the media has license regarding what to cover and the amount of attention devoted to any aspect of the Court and its business. Some cases receive tremendous attention, while others languish on the back pages or are ignored. These selection effects create a skewed picture of the Court and its work, and might affect public attitudes toward the Court. Indeed, studies of media coverage of other governmental institutions reveal that when, and how, their policy decisions are covered has implications for the public's understanding of, compliance with, support for, and cynicism about the policy.This book uncovers and describes this coverage and compares it to the confirmation hearings, the Court's actual work, even its members. Rorie Spill Solberg and Eric N. Waltenburg analyze media coverage of nominations and confirmation hearings, the justices''extra-curricular'activities and their retirements/deaths, and the Court's opinions, and compare this coverage to analyses of confirmation transcripts and the Court's full docket. Solberg and Waltenburg contend that media now cover the Court and its personnel more similarly to its coverage of other political institutions. Journalists still regurgitate a mythology supported by the justices, a'cult of the robe,'wherein unbiased and apolitical judges mechanically base their decisions upon the law and the Constitution. Furthermore, they argue the media also focus on the'cult of personality,'wherein the media emphasize certain attributes of the justices and their work to match the public's preferences for subject matter and content. The media's portrayal, then, may undercut the Court's legitimacy and its reservoir of good will.

The U.S. Supreme Court is not a unitary actor and it does not function in a vacuum. It is part of an integrated political system in which its decisions and doctrine must be viewed in a broader context. In some areas, the Court is the lead policy maker. In other areas, the Court fills in the gaps of policy created in the legislative and executive branches. In either instance, the Supreme Court's work is influenced by and in turn influences all three branches of the federal government as well as the interests and opinions of the American people.Pacelle analyzes the Court's interaction in the separation of powers system, detailing its relationship to the presidency, Congress, the bureaucracy, public opinion, interest groups, and the vast system of lower courts. The niche the Court occupies and the role it plays in American government reflect aspects of both the legal and political models. The Court has legal duties and obligations as well as some freedom to exercise its collective political will. Too often those studying the Court have examined it in isolation, but this book urges scholars and students alike to think more broadly and situate the highest court as the'balance wheel'in the American system.

Constitutional law is clearly shaped by judicial actors. But who else contributes? Scholars in the past have recognized that the legislative branch plays a significant role in determining structural issues, such as separation of powers and federalism, but stopped there--claiming that only courts had the independence and expertise to safeguard individual and minority rights. In this readable and engaging narrative, the authors identify the nuts and bolts of the national dialogue and relate succinct examples of how elected officials and the general public often dominate the Supreme Court in defining the Constitution's meaning. Making use of case studies on race, privacy, federalism, war powers, speech, and religion, Devins and Fisher demonstrate how elected officials uphold individual rights in such areas as religious liberty and free speech as well as, and often better than, the courts. This fascinating debunking of judicial supremacy argues that nonjudicial contributions to constitutional interpretation make the Constitution more stable, more consistent with constitutional principles, and more protective of individual and minority rights.