DOCSLIB.ORG

Of Time and Judicial Behavior: Time Series Analyses

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Of Time and Judicial Behavior: Time Series Analyses OF TIME AND JUDICIAL BEHAVIOR: TIME SERIES ANALYSES OF UNITED STATES SUPREME COURT AGENDA SETTING AND DECISION-MAKING, 1888-1989 DISSERTATION Presented to the Graduate Council of the University of North Texas in Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY By Drew Noble Lanier, B.A., J.D. Denton, Texas December, 1997 Lanier, Drew Noble, Of Time and Judicial Behavior: Time Series Analyses of United States Supreme Court Agenda Setting and Decision-making, 1888-1989. Doctor of Philosophy (Political Science), December, 1997, 424 pp., 14 tables, 32 illustrations, references, 136 titles. This study examines the agenda setting and decision- making behavior of the United States Supreme Court from 1888 to 1989. Using Inter-University Consortium for Political and Social Research data and data that the author assisted in gathering, the study investigates the changing composition of the Court's agenda and the level of its unanimity. The study also examines the level of the liberalism of its decisions. The study specifies time series models and structural equations models to test the strength of the association between the justices' personal attributes and liberalism. The study finds that economics decisions dominated the Court's docket up until the 1950s, when civil liberties- civil rights cases became more prominent. Judicial power decisions remained relatively constant. The unanimity of its decisions also declined across the period analyzed, first observed during the White Court. The liberalism of the Court's economics decisions was unexpectedly high for or the Fuller and White Courts, but as expected for the Taft, Hughes and Stone Courts. The Court's civil liberties-civil rights jurisprudence was conservative through the 1940's, but became more liberal during the Warren Court. Judicial power liberalism was quite volatile. Time series analysis demonstrates that the justices' religious affiliations, and agricultural origins were positively associated with the Court's economic liberalism, while judicial experience was negatively associated with the Court's economic policy preferences. The Great Depression and Roosevelt's Court-packing plan served to increase the liberalism of the Court's economics rulings. Partisan affiliation was shown to be related to the Court's civil liberties-civil rights liberalism. The occurrence of World War I is modestly related to a decline in liberalism. Judicial power liberalism is related to party identification, religious affiliation and career service, as well as the Judiciary Act of 1925. OF TIME AND JUDICIAL BEHAVIOR: TIME SERIES ANALYSES OF UNITED STATES SUPREME COURT AGENDA SETTING AND DECISION-MAKING, 1888-1989 DISSERTATION Presented to the Graduate Council of the University of North Texas in Partial Fulfillment of the Requirements For the Degree of DOCTOR OF PHILOSOPHY By Drew Noble Lanier, B.A., J.D. Denton, Texas December, 1997 Copyright by- Drew Noble Lanier 1997 111 ACKNOWLEDGMENTS There have been many people whose help made the completion of this dissertation possible. First and foremost, the love, support, kindness and generosity of my parents, J.E. and Jeannine Lanier, were key to my completing the degree and my education in general. Their love for knowledge and learning provided me the motivation to earn education's highest degree. My father's analytical way provided me an environment in which to sharpen my own cognitive skills. Second, the unbelievable patience, high standards, good nature and humor of my dissertation supervisor, Dr. C. Neal Tate, have carried me through this ordeal. He prodded me when I was simply not working up to the level that he, thankfully, knew that I could reach. He has made a tough road a little bit easier. I certainly hope that I can learn from his example as a scholar, teacher, and supervisor of future graduate students. Third, the kindness, warmth, intelligence and generosity of Dr. Frank Feigert have helped me immeasurably during the nearly five years that this degree has taken to complete. His love of politics inspired me as a teacher and as a scholar. His genuine friendship (if a professor ever can be a graduate student's friend) is heartily appreciated. Fourth, this study could not have been completed without the work of Dr. Sandra L. Wood, Linda Camp Keith, and Ayo Ogundele. Each of them helped code the bulk of the data on which the analyses done in this work are based. Without their diligence, the data would not have been collected. They, of course, bear no responsibility for any of the analyses conducted in the study. Fifth, the data utilized in this dissertation were made available in part by the Inter-university Consortium for Political and Social Research. The data for United States Supreme Court Judicial Database, 1953-1988 Terms were originally collected by Harold J. Spaeth. Neither the collector of the original data nor the Consortium bears any responsibility for the analyses or interpretations presented here. TABLE OF CONTENTS Page LIST OF TABLES X LIST OF ILLUSTRATIONS xi Chapter I. THE DECISION-MAKING AND AGENDA SETTING FUNCTIONS OF THE UNITED STATES SUPREME COURT, 1888-1989 1 Purpose, Outline, and Importance of the Study The United States Supreme Court and Its Decision-Making and Agenda Setting The United States Supreme Court and Politics The Supreme Court's Agenda-Setting Process Determinants of Supreme Court Decision-Making Chapter Summary II. HISTORICAL SETTING OF THE UNITED STATES SUPREME COURT, 1888-1946 37 The Court in Historical Perspective The Fuller Court (1888-1910) Brief Biographical Sketches of the Fuller Court Justices Substance of the Fuller Court's Decisions The White Court (1910-1921) Brief Biographical Sketches of the White Court Justices Political Context of the White Court Substance of the White Court's Decisions The Taft Court (1921-1930) Brief Biographical Sketches of the Taft Court Justices Substance of the Taft Court's Decisions The Hughes Court (1930-1941) Brief Biographical Sketches of the Hughes Court Justices Substance of the Hughes Court's Decisions The Stone Court (1941-1946) Brief Biographical Sketches of the Stone Court Justices Substance of the Stone Court's Decisions Chapter Summary Notes III. INSTITUTIONAL LEVEL ANALYSES: COMPOSITION AND DYNAMICS OF THE WORKLOAD AND THE AGENDA OF THE UNITED STATES SUPREME COURT, 1888-1989 101 Data Collection Process Size and Composition of the Court's Caseload Total Reported Decisions Issue Areas Economics Decisions Judicial Power Federal Taxation Criminal Procedure Civil Rights First Amendment Privacy Due Process Federalism Interstate Relations Separation of Powers Union Attorney vi Major Issue Areas The Content of the Issue Areas Chapter Summary Notes Appendix A: Coding Sheet Appendix B: Coding Protocol for Agenda and Decisional Data for the United States Supreme Court, 1888-1989 IV. INSTITUTIONAL LEVEL ANALYSES: UNANIMITY OF UNITED STATES SUPREME COURT DECISION-MAKING, 1888-1989 165 Unanimity Explored Unanimity Examined The Influence of the Chief Justice on Unanimity Unanimity on the Supreme Court, 1888-1946 Concurring Votes Concurring Opinions Dissenting Votes: Behind the Purple Curtain The Judges' Bill and Dissensus Multiple Dissents The Decline of Consensual Norms Dissenting Opinions Chapter Summary Notes V. INSTITUTIONAL LEVEL ANALYSES: LIBERALISM OF UNITED STATES SUPREME COURT DECISION-MAKING, 1888-1989 222 Politics, Liberalism and the Supreme Court Liberalism Defined Liberalism in Individual Issue Areas Economics Federal Taxation Judicial Power Criminal Procedure Civil Rights First Amendment Due Process Privacy Attorneys Unions Liberalism in Aggregated Issue Areas The Content of the Issue Areas Economics Civil Liberties-Civil Rights Judicial Power Other Chapter Summary Notes VI. INSTITUTIONAL LEVEL ANALYSES: TIME SERIES ANALYSES OF UNITED STATES SUPREME COURT LIBERALISM, 1888-1989 296 Overview of Box-Jenkins-Tiao Modeling Scheme General Rationale and Procedure Transfer Functions Interventions Diagnostics Models of Institutional Liberalism Case Selection Aggregated Issue Dimensions Economic Liberalism Civil Liberties-Civil Rights Liberalism Judicial Power Liberalism Chapter Summary Notes VII. CONCLUSION 376 Overview and Importance of the Study's Findings The Court in Historical Context Importance of the Dataset Workload and Agenda Dynamics Unanimity of Decisions Liberalism of the Court's Decisions Explaining the Supreme Court's Liberalism Importance of the Study's Findings Suggestions for Further Research REFERENCES 409 LIST OF TABLES Table Page 3-1. United States Supreme Court's Agenda, 1888-1989 108 4-1. Percentage of Unanimous Decisions and Concurring Votes and Decisions of the United States Supreme Court, 1888-1989 169 4-2. Percentage of United States Supreme Court Decisions with Dissenting Votes and Opinions, 1888-1989 193 5-1. Proportion of Liberal Decisions of the United States Supreme Court in Indicated Issues, 1888-1989 229 5-2. Percentage of Liberal Decisions of the United States Supreme Court in Aggregated Issue Dimensions, 1888-1989 277 6-1. Univariate ARIMA Model of United States Supreme Court Economic Liberalism, 1888-1989 310 6-2. Multivariate Models of United States Supreme Court Liberalism, 1888-1989 333 6-3. Summary of Research Findings With Regard to Individual Hypotheses of Economic Liberalism 342 6-4. Univariate ARIMA Model of United States Supreme Court Civil Liberties-Civil Rights Liberalism, 1888-1989 344 6-5. Multivariate ARIMA Models of United States Supreme Court Civil Liberties Liberalism, 1888-1989 351 6-6. Summary of Research Findings With Regard to Individual Hypotheses of Civil Liberties-Civil Rights Liberalism 360 6-7. Univariate ARIMA Model of United States Supreme Court Judicial Power Liberalism, 1888-1989 361 6-8. Multivariate ARIMA Models of United States Supreme Court Judicial Power Liberalism, 1888-1989 365 6-9. Summary of Research Findings With Regard to Individual Hypotheses of Judicial Power Liberalism 369 LIST OF ILLUSTRATIONS Figure Page 3-1. Caseload of the United States Supreme Court, 1888-1989 107 3-2. Composition of the Agenda of the United States Supreme Court, 1888-1989 118 3-3. Composition of the Agenda of the United States Supreme Court, 1888-1989 123 3-4.
Load more

Recommended publications
  • The Importance of Dissent and the Imperative of Judicial Civility
    Valparaiso University Law Review Volume 28 Number 2 Symposium on Civility and Judicial Ethics in the 1990s: Professionalism in the pp.583-646 Practice of Law Symposium on Civility and Judicial Ethics in the 1990s: Professionalism in the Practice of Law The Importance of Dissent and the Imperative of Judicial Civility Edward McGlynn Gaffney Jr. Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Edward McGlynn Gaffney Jr., The Importance of Dissent and the Imperative of Judicial Civility, 28 Val. U. L. Rev. 583 (1994). Available at: https://scholar.valpo.edu/vulr/vol28/iss2/5 This Symposium is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Gaffney: The Importance of Dissent and the Imperative of Judicial Civility THE IMPORTANCE OF DISSENT AND THE IMPERATIVE OF JUDICIAL CIVILITY EDWARD McGLYNN GAFFNEY, JR.* A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the errorinto which the dissentingjudge believes the court to have been betrayed... Independence does not mean cantankerousness and ajudge may be a strongjudge without being an impossibleperson. Nothing is more distressing on any bench than the exhibition of a captious, impatient, querulous spirit.' Charles Evans Hughes I. INTRODUCTION Charles Evans Hughes served as Associate Justice of the Supreme Court from 1910 to 1916 and as Chief Justice of the United States from 1930 to 1941.
    [Show full text]
  • WILLIAM HOWARD TAFT HOME Page 1 United States Department of the Interior, National Park Service National Register of Historic Places Registration Form
    NATIONAL HISTORIC LANDMARK NOMINATION NPS Form 10-900 USDI/NPS NRHP Registration Form (Rev. 8-86) OMB No. 1024-0018 WILLIAM HOWARD TAFT HOME Page 1 United States Department of the Interior, National Park Service National Register of Historic Places Registration Form 1. NAME OF PROPERTY Historic Name: William Howard Taft Home (Updated Documentation and Name Change) Other Name/Site Number: Alphonso Taft Home William Howard Taft National Historic Site 2. LOCATION Street & Number: 2038 Auburn Avenue Not for publication: City/Town: Cincinnati Vicinity: State: OH County: Hamilton Code: 061 Zip Code: 45219-3025 3. CLASSIFICATION Ownership of Property Category of Property Private: Building(s): _X_ Public-Local: District: ___ Public-State: ___ Site: ___ Public-Federal: _X_ Structure: ___ Object: ___ Number of Resources within Property Contributing Noncontributing 1 1 buildings 1 0 sites 0 0 structures 0 objects 2 1 Total Number of Contributing Resources Previously Listed in the National Register: 1 Name of Related MultipleDRAFT Property Listing: N/A NPS Form 10-900 USDI/NPS NRHP Registration Form (Rev. 8-86) OMB No. 1024-0018 WILLIAM HOWARD TAFT HOME Page 2 United States Department of the Interior, National Park Service National Register of Historic Places Registration Form 4. STATE/FEDERAL AGENCY CERTIFICATION As the designated authority under the National Historic Preservation Act of 1966, as amended, I hereby certify that this ____ nomination ____ request for determination of eligibility meets the documentation standards for registering properties in the National Register of Historic Places and meets the procedural and professional requirements set forth in 36 CFR Part 60.
    [Show full text]
  • Foundation Document William Howard Taft National Historic Site Ohio December 2014 Foundation Document
    Attachment 12 NATIONAL PARK SERVICE • U.S. DEPARTMENT OF THE INTERIOR Foundation Document William Howard Taft National Historic Site Ohio December 2014 Foundation Document e To 275 v To 275 fton ward li A Calhoun Ho 22 C Street lliam Wi y Taft Road one-wa McMillan Exit 3 Street one-way ue Western Hills n e e To 275 Viaduct v Southern 71 v A A Avenue t r Christ Hospital rn Parking e Ce lb ntral i OHIO bu entrance G 75 u A Exit 50 Willia m Howard Taft Young 52 2 Street E Nationa l Historic Site d e n D e r o m a c y S o e P rchester Av P a a r r k k EDEN w D d r a a y Liberty Street o Krohn R PARK Conservatory Stree y Museum Museum a C I N C I N N A T I g Center n e of Art w t i k Ezzard Char d u r les ea n a R e P Driv v e y A Y kwa l Par K tra Main t IO Cen r ia C e b H t lb P ee i m O lu th Str lu 9 St G o m S reet C 7th St KENTU r reet ee treet St 6th Street To 275 t 5th 50 Pike Fountain Street Taft Square Museum of Art 471 Roebl North 71 Great American Ballpark i n 71 Paul Brown g R E V Stadium B RI r 75 id 0 0.5 1 Kilometer IO KENTUCKY OH g e 0 0.5 1 Mile To 275 To 275 2 William Howard Taft National Historic Site CONTENTS Mission of the National Park Service 1 Introduction 2 Part 1: Core Components 3 Brief Description of the Park 3 William Howard Taft – Influences and Legacy 5 Park Purpose 7 Park Significance 8 Fundamental Resources and Values 9 Interpretive Themes 10 Part 2: Dynamic Components 11 Special Mandates and Administrative Commitments 11 Administrative Commitments 11 Assessment of Planning and Data Needs 11 Analysis of Fundamental
    [Show full text]
  • James Buchanan As Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25
    MARK A. GRABER* James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25 A ntebellum Americans anticipated contemporary political science when they complained about the tendency of embattled political elites to take refuge in the judiciary. Recent scholarship on comparative judicial politics suggests that judicial review is a means by which constitutional framers provided protection for certain class interests that may no longer be fully protected in legislative settings. Tom Ginsburg claims, "[I]f they foresee themselves losing in postconstitutional elections," the politicians responsible for the constitution "may seek to entrench judicial review as a form of political insurance." 1 Such a constitutional design ensures "[e]ven if they lose the election, they will be able to have some access to a forum in which to challenge the legislature."2 In 1801, Thomas Jefferson foreshadowed this strategy. He asserted that the defeated Federalist Party had "retired into the judiciary as a stronghold ...and from that battery all the works of republicanism are to be beaten down and erased.",3 More than a half century later, Chief Justice David S. *Professor of Law and Government, University of Maryland School of Law. This Article was written while the author was the 2008-09 Wayne Morse Chair at the University of Oregon School of Law. I am grateful to the Morse Foundation, Margaret Hallock, and Elizabeth Weber for their remarkable support. I am also grateful to numerous colleagues at the University of Maryland School of Law and elsewhere who read and commented on what follows without giggling too much.
    [Show full text]
  • Protecting the Supreme Court: Why Safeguarding the Judiciary’S Independence Is Crucial to Maintaining Its Legitimacy
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2021 Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Isabella Abelite Fordham University School of Law Evelyn Michalos Fordham University School of Law John Rogue Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Law and Politics Commons Recommended Citation Isabella Abelite, Evelyn Michalos, and John Rogue, Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy, January (2021) Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/1112 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Democracy and the Constitution Clinic Fordham University School of Law Isabella Abelite, Evelyn Michalos, & John Roque January 2021 Protecting the Supreme Court: Why Safeguarding the Judiciary’s Independence is Crucial to Maintaining its Legitimacy Democracy and the Constitution Clinic Fordham University School of Law Isabella Abelite, Evelyn Michalos, & John Roque January 2021 This report was researched and written during the 2019-2020 academic year by students in Fordham Law School’s Democracy and the Constitution Clinic, where students developed non-partisan recommendations to strengthen the nation’s institutions and its democracy.
    [Show full text]
  • Informing the Public About the U.S. Supreme Court's Work Ruth Bader Ginsberg Supreme Court of the United States
    Loyola University Chicago Law Journal Volume 29 Article 2 Issue 2 Winter 1998 1998 Informing the Public about the U.S. Supreme Court's Work Ruth Bader Ginsberg Supreme Court of the United States Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Legal Education Commons Recommended Citation Ruth B. Ginsberg, Informing the Public about the U.S. Supreme Court's Work, 29 Loy. U. Chi. L. J. 275 (1998). Available at: http://lawecommons.luc.edu/luclj/vol29/iss2/2 This Speech is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Address Informing the Public about the U.S. Supreme Court's Work Ruth Bader Ginsburg* My remarks this afternoon concern informing the public about the work the Supreme Court does. I will speak of efforts simply to describe the Court's actions (both in-house efforts and press reports), and also of feedback on the Court's dispositions-comment on, or criticism of, the Court's work from people who keep us alert to our fallibility, reviewers who stimulate us to try harder, especially to write more comprehensibly. I. The Court speaks primarily through its opinions. It holds no press conferences and its members appear on no talk shows. But we try, in several ways, to advance public understanding of the Court's role and judgments. On mornings when decisions are announced, opinion authors read aloud in the Courtroom short bench statements, running three to ten minutes in length, summarizing what the Court held and the principal reasons for the decision.
    [Show full text]
  • “Crisis”: Charting a Path for Federal Judiciary Reform
    University of New Hampshire University of New Hampshire Scholars' Repository University of New Hampshire – Franklin Pierce Law Faculty Scholarship School of Law 7-1-2020 Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform Ryan G. Vacca University of New Hampshire School of Law, [email protected] Peter S. Menell University of California, Berkeley, School of Law Follow this and additional works at: https://scholars.unh.edu/law_facpub Part of the Courts Commons, and the Judges Commons Recommended Citation 108 Cal. L. Rev. 789 (2020) This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting a Path for Federal Judiciary Reform Peter S. Menell* and Ryan Vacca** The modern federal judiciary was established well over a century ago by the Judiciary Act of 1891. Over the next seventy years, the structure and core functioning of the judiciary largely remained unchanged apart from gradual increases in judicial slots. By the mid- 1960s, jurists, scholars, practitioners, and policy-makers had voiced grave concerns about the capacity of the federal system to function effectively in the face of ever-increasing caseloads. Heeding calls for reform, in 1972 Congress charged a commission chaired by Senator Roman Hruska to study the functioning of the federal courts and recommend reforms.
    [Show full text]
  • The Constitution in the Supreme Court: the Protection of Economic Interests, 1889-1910
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1985 The Constitution in the Supreme Court: The Protection of Economic Interests, 1889-1910 David P. Currie Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation David P. Currie, "The Constitution in the Supreme Court: The Protection of Economic Interests, 1889-1910," 52 University of Chicago Law Review 324 (1985). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. The Constitution in the Supreme Court: The Protection of Economic Interests, 1889-1910 David P. Curriet The Supreme Court's first hundred years virtually ended with the death of Chief Justice Morrison R. Waite in March 1888. Five of Waite's brethren-Stanley Matthews, Samuel F. Miller, Joseph P. Bradley, Samuel Blatchford, and Lucius Q.C. Lamar-left the Court within the next five years, and a sixth-Stephen J. Field-hung on after his powers had faded.1 By 1894, Melville W. Fuller2 presided over an essentially new Court consisting of David J. Brewer, Henry B. Brown, George Shiras, Howell E. Jackson, and Edward Douglass White3 in addition to the three holdovers, John M. Harlan, Horace Gray, and Field. Jackson and Field soon gave way to Rufus W. Peckham and Joseph McKenna; Gray and Shiras, after the turn of the century, were replaced by Oliver Wendell Holmes and William R.
    [Show full text]
  • The Ratings Game: Factors That Influence Judicial Reputation William G
    Marquette Law Review Volume 79 Article 2 Issue 2 Winter 1996 The Ratings Game: Factors That Influence Judicial Reputation William G. Ross Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation William G. Ross, The Ratings Game: Factors That Influence Judicial Reputation, 79 Marq. L. Rev. 401 (1996). Available at: http://scholarship.law.marquette.edu/mulr/vol79/iss2/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW Volume 79 Winter 1996 Number 2 THE RATINGS GAME: FACTORS THAT INFLUENCE JUDICIAL REPUTATION WILLIAM G. ROSS* INTRODUCTION The rating of United States Supreme Court justices is an increasingly favorite pastime among scholars, judges, journalists, students, and practicing attorneys. Once the domain of a few pundits who made personal lists of the all-time "greatest" justices,' surveys are becoming more formal and are embracing more participants. The most extensive * Professor of Law, Cumberland School of Law of Samford University; A.B., Stanford, 1976; J.D., Harvard, 1979. The author was one of the scholars polled in the 1993 Blaustein- Mersky survey that is discussed in this Article. The author thanks Professor Roy M. Mersky of the University of Texas for advice and encouragement in connection with this Article and for his permission to publish the results of that survey as an appendix to this Article.
    [Show full text]
  • Tiers of Scrutiny in a Hierarchical Judiciary Tara Leigh Grove William & Mary Law School, [email protected]
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2016 Tiers of Scrutiny in a Hierarchical Judiciary Tara Leigh Grove William & Mary Law School, [email protected] Repository Citation Grove, Tara Leigh, "Tiers of Scrutiny in a Hierarchical Judiciary" (2016). Faculty Publications. 1834. https://scholarship.law.wm.edu/facpubs/1834 Copyright c 2016 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs Tiers of Scrutiny in a Hierarchical Judiciary TARA LEIGH GROVE* INTRODUCTION .......................................... 475 I. A NEW JUDICIAL STRUCTURE ............................ 478 11. CHANGES IN SUPREME COURT DECISIONMAKING ............... 483 III. IMPLICATIONS FOR CHALLENGES TO THE TIERS OF SCRUTINY ....... .. 487 CONCLUSION . ........................................... 491 INTRODUCTION The standards of scrutiny governing judicial application of, for example, free speech, due process, or equal protection doctrine, are an integral feature of constitutional law. Every lawyer knows that certain regulations will be subject to "strict scrutiny," while others will receive only "rational basis" review. Yet one striking-and puzzling-feature of these standards of scrutiny is their relatively recent vintage. The Supreme Court did not begin to develop these standards until the early-to-mid twentieth century-and even then, the Court did not settle on the rigid rules that we know today for several more decades.' Prior to that time, the Court generally subjected government regulations to a single "reasonableness" test, examining whether a given law was a reasonable means of fulfilling a legitimate government purpose.2 This lack of historical pedigree * Professor of Law and Cabell Research Professor, William and Mary Law School.
    [Show full text]
  • The Supreme Court Opinion As Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court
    The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court Robert Postt In 1921, when William Howard Taft became Chief Justice, the Supreme Court did not occupy the serene and imposing marble building that has since become its contemporary icon.1 Its courtroom was instead located in the old Senate Chamber, whose intimate, elegant surroundings echoed with the debates of Webster, Clay, and Calhoun.2 Its administrative staff and offices were scattered haphazardly and inefficiently throughout the Capitol.3 It was Taft who, with great skill and patience, t I am very grateful for the advice and insight of friends and colleagues. I would particularly like to thank Paul Carrington, Jesse Choper, Meir Dan- Cohen, Mel Eisenberg, Dan Farber, Phil Frickey, Barry Friedman, Howard Gillman, Jim Gordley, Morton Horowitz, Laura Kalman, Robert Kagan, Larry Kramer, David Lieberman, Sandy Levinson, David and Miranda McGowan, Paul Mishkin, William Nelson, Judith Resnik, Dan Rubinfeld, Reva Siegel, and Mark Tushnet. I am especially grateful for the stalwart and heroic efforts of Linda Lye, Cathy Shuck, and Sambhav Nott Sankar. Copyright 2001 by Robert Post. Many of the materials cited and quoted herein are archival and on file with the author. The Minnesota Law Review was thus unable to independ- ently verify this authority. Unless otherwise noted, figures are based on the independent research of the author or annual reports of the Attorney General of the United States. 1. Writing in 1984, Margaret P. Lord noted that to the Justices who first moved into the contemporary Supreme Court building in 1935, "the spaces were too huge, the corridors were too long and cold, the rooms too formal." Margaret P.
    [Show full text]
  • Building the Federal Judiciary (Literally and Legally): the Monuments of Chief Justices Taft, Warren, and Rehnquist†
    The Addison C. Harris Lecture Building the Federal Judiciary (Literally and Legally): The † Monuments of Chief Justices Taft, Warren, and Rehnquist * JUDITH RESNIK ABSTRACT The “federal courts” took on their now familiar contours over the course of the twentieth century. Three chief justices—William Howard Taft, Earl Warren, and William Rehnquist—played pivotal roles in shaping the institutional, jurisprudential, and physical premises. Taft is well known for promoting a building to house the U.S. Supreme Court and for launching the administrative infrastructure that came to govern the federal courts. Earl Warren’s name has become the shorthand for a jurisprudential shift from state toward federal authority; the Warren Court offered an expansive understanding of the role federal courts could play in enabling access for a host of new claimants seeking an array of rights. William Rehnquist is identified with limiting both rights and access in favor of state court and of executive authority. He has been less well appreciated for his role in changing the institutional capacity of the federal courts. During the Rehnquist era, the budget of the federal courts doubled as staff and facilities expanded, in part by way of the largest federal building program since the New Deal. Over the course of the twentieth century and under the leadership of all three chief justices, the judiciary gained an increasingly robust corporate persona. Judges shifted their sights from “court quarters” to custom-designed courthouses † Copyright © 2012 Judith Resnik. * Arthur Liman Professor of Law, Yale Law School. All rights reserved. Judith Resnik. This Lecture built on and is related to the book Representing Justice: Inventions, Controversies, and Rights in City-States and Democratic Courtrooms (2011), co-authored with Dennis Curtis.
    [Show full text]