The Scope of Precedent
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Reckless Caution: the Perils of Judicial Minimalism
RECKLESS CAUTION: THE PERILS OF JUDICIAL MINIMALISM Tara Smith* ABSTRACT Judicial Minimalism is the increasingly popular view that judges decide cases properly to the extent that they minimize their own imprint on the law by meticulously assessing “one case at a time,” ruling on narrow and shallow grounds, eschewing broader theories, and altering entrenched legal practices only incremen- tally. Minimalism’s ascendancy across the political spectrum, be- ing embraced by advocates of both right-wing and left-wing ide- ologies, is touted as a sign of its appropriate value-neutrality. This paper argues that such sought-after neutrality is, in fact, untenable. While others have objected to some of Minimalism’s specific tenets, critics have missed its more fundamental failing: it is an incoherent concept. On analysis, Minimalism’s several planks and rationales prove mutually contradictory and, corre- spondingly, offer conflicting guidance to judges. Thus the reason that Minimalism can appeal to people of such disparate substan- tive views is that in practice, it is merely a placeholder invoked to * Many people have offered helpful discussion of the ideas developed in this paper or feedback on earlier drafts. I am grateful to audiences at Oxford’s Uehiro Center and the University of Virginia, and in particular to Tom Bowden, Onkar Ghate, Wesley Hottot, Loren Lomasky, Al Martinich, Matt Miller, Adam Mossoff, Matt O’Brien, Greg Salmieri, Julian Savulescu, John Simmons, and Kevin Stuart. 347 348 New York University Journal of Law & Liberty [Vol. 5:347 sanction a grab-bag of desiderata rather than a distinctive method of decision-making that offers genuine guidance. -
Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government Neal Devins
Vanderbilt Law Review Volume 69 | Issue 4 Article 3 5-2016 Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government Neal Devins Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Neal Devins, Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government, 69 Vanderbilt Law Review 935 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol69/iss4/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Rethinking Judicial Minimalism: Abortion Politics, Party Polarization, and the Consequences of Returning the Constitution to Elected Government Neal Devins* IN TROD U CTION ............................................................................... 935 I. MINIMALISM THEORY AND ABORTION ................................. 939 II. WHAT ABORTION POLITICS TELLS US ABOUT JUDICIAL M INIMALISM ........................................................ 946 A . R oe v. W ade ............................................................. 947 B . From Roe to Casey ................................................... 953 C. Casey and Beyond .................................................. -
“Equal Right to the Poor” Richard M
“Equal Right to the Poor” Richard M. Re† By law, federal judges must swear or affirm that they will “do equal right to the poor and to the rich.” This frequently overlooked oath, which I call the “equal right principle,” has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle’s text, context, and history. This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implement- ing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor’s disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnera- ble groups. The equal right principle should also inform what qualifies as a com- pelling or legitimate governmental interest within campaign finance jurispru- dence, as well as whether to implement “underenforced” equal protection principles. More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. -
Review of “The Law of Judicial Precedent.”
BOOK REVIEW CRAFTING PRECEDENT THE LAW OF JUDICIAL PRECEDENT. By Bryan A. Garner et al. St. Paul, Minn.: Thomson Reuters. 2016. Pp. xxvi, 910. $49.95. Reviewed by Paul J. Watford, Richard C. Chen, and Marco Basile How does the law of judicial precedent work in practice? That is the question at the heart of The Law of Judicial Precedent, the first treatise on the subject in more than 100 years. The treatise sets aside more theoretical and familiar questions about whether and why earlier decisions (especially wrong ones) should bind courts in new cases.1 In- stead, it offers an exhaustive how-to guide for practicing lawyers and judges: how to identify relevant precedents, how to weigh them, and how to interpret them. In short, how to apply precedents to new cases. The treatise’s thirteen authors include representatives from several of the federal circuit courts, justices from two state supreme courts, and the U.S. Supreme Court’s newest member, Justice Neil Gorsuch.2 Their coauthor and the project’s fountainhead, Bryan Garner, is the editor of Black’s Law Dictionary and one of the country’s leading authorities on legal writing and reasoning.3 The treatise is not a compendium of chap- ters written separately by these authors and loosely tied to a common ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Judge, United States Court of Appeals for the Ninth Circuit. Associate Professor of Law, University of Maine School of Law; Law Clerk to the Honorable Paul J. Watford, 2012–2013. Law Clerk to the Honorable Paul J. Watford, 2016–2017. In many chambers, judges work closely with their law clerks to resolve cases and draft opinions. -
Maximinimalism
GREENE.38.2.8 (Do Not Delete) 12/14/2016 12:55 PM MAXIMINIMALISM Jamal Greene† TABLE OF CONTENTS INTRODUCTION .................................................................................................................623 I. ONE CONCEPTION OF MINIMALISM.........................................................................626 II. CHIEF JUSTICE ROBERTS’S MAXIMINIMALISM .........................................................629 A. What Chief Justice Roberts Has Preached ..................................................629 B. What Chief Justice Roberts Has Practiced .................................................631 1. Citizens United v. FEC ......................................................................632 2. Shelby County v. Holder ...................................................................635 3. NFIB v. Sebelius .................................................................................638 C. Other Examples .............................................................................................644 III. ASSESSMENT ...............................................................................................................646 CONCLUSION......................................................................................................................649 INTRODUCTION When John Roberts became Chief Justice of the United States more than a decade ago, commenters frequently described him as a minimalist.1 Although Chief Justice Roberts himself resisted this label,2 he fairly inspired it by advocating -
Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme Court
Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme Court October 6, 2020 Congressional Research Service https://crsreports.congress.gov R46562 SUMMARY R46562 Judge Amy Coney Barrett: Her Jurisprudence October 6, 2020 and Potential Impact on the Supreme Court Valerie C. Brannon, On September 26, 2020, President Donald J. Trump announced the nomination of Judge Amy Coordinator Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit to the Supreme Court of the Legislative Attorney United States to fill the vacancy left by the death of Justice Ruth Bader Ginsburg on September 18, 2020. Judge Barrett has been a judge on the Seventh Circuit since November 2017, having Michael John Garcia, been nominated by President Trump and confirmed by the Senate earlier that year. The nominee Coordinator earned her law degree from Notre Dame Law School in 1997, and clerked for Judge Laurence H. Section Research Manager Silberman of the U.S. Court of Appeals for the D.C. Circuit and Supreme Court Justice Antonin Scalia. From 2002 until her appointment to the Seventh Circuit in 2017, Judge Barrett was a law professor at Notre Dame Law School, and she remains part of the law school faculty. Her Caitlain Devereaux Lewis, scholarship has focused on topics such as theories of constitutional interpretation, stare decisis, Coordinator and statutory interpretation. If confirmed, Judge Barrett would be the fifth woman to serve as a Section Research Manager Supreme Court Justice. During Judge Barrett’s September 26 Supreme Court nomination ceremony, she paid tribute to both Justice Ginsburg and her former mentor, Justice Scalia. -
The Philosophy and Jurisprudence of Chief Justice Roberts
Utah Law Review Volume 2014 | Number 1 Article 4 2014 The hiP losophy and Jurisprudence of Chief Justice Roberts Kiel Brennan-Marquez Follow this and additional works at: http://dc.law.utah.edu/ulr Part of the Judges Commons, Jurisprudence Commons, and the Supreme Court of the United States Commons Recommended Citation Brennan-Marquez, Kiel (2014) "The hiP losophy and Jurisprudence of Chief Justice Roberts," Utah Law Review: Vol. 2014 : No. 1 , Article 4. Available at: http://dc.law.utah.edu/ulr/vol2014/iss1/4 This Article is brought to you for free and open access by Utah Law Digital Commons. It has been accepted for inclusion in Utah Law Review by an authorized editor of Utah Law Digital Commons. For more information, please contact [email protected]. THE PHILOSOPHY AND JURISPRUDENCE OF CHIEF JUSTICE ROBERTS Kiel Brennan-Marquez* Abstract A thicket of commentary has blossomed around the figure of Chief Justice Roberts. The bulk of it, however, has either focused exclusively on his role in the 2011 term or has lumped him in uncritically with the Court’s conservative wing. In response, this Article takes a wider view of his tenure, arguing that Chief Justice Roberts is best understood as an idealist, a true believer in the rule of law, with a special sensitivity toward issues of constitutional structure. In the first Part of the Article, I explore Chief Justice Roberts’s penchant for infusing his opinions with “teaching moments”—a tendency certainly on display in National Federation of Independent Business v. Sebelius1 (NFIB), but discernable in many other opinions as well. -
Precedent and Jurisprudential Disagreement Amy Coney Barrett Notre Dame Law School, [email protected]
Notre Dame Law School NDLScholarship Journal Articles Publications 2013 Precedent and Jurisprudential Disagreement Amy Coney Barrett Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Jurisprudence Commons Recommended Citation Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/293 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. Precedent and Jurisprudential Disagreement Amy Coney Barrett* Introduction Over the years, some have lamented the Supreme Court's willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.' In this Article, I point out that one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error, and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution.2 Because the justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying "error" in constitutional cases. Rejection of a controversial precedent does not always mean that the case is wrong when judged by its own lights; it sometimes means that the justices voting to reverse rejected the interpretive premise of the case. -
The Nomination of Amy Coney Barrett: an Indian Law Perspective
Native American Rights Fund 1506 Broadway, Boulder, Colorado 80302-6296 (303) 447-8760 FAX (303) 443-7776 EXECUTIVE DIRECTOR www.narf.org WASHINGTON OFFICE John E. Echohawk 1514 P Street, NW (Rear) Suite D LITIGATION MANAGEMENT COMMITTEE Washington, D.C. 20005-1910 David L. Gover Matthew L. Campbell Ph. (202) 785-4166 Erin C. Dougherty Lynch FAX (202) 822-0068 October 6, 2020 ATTORNEYS ATTORNEYS Joel W. Williams Matthew L. Campbell Daniel D. Lewerenz Jacqueline De León Samantha B. Kelty K. Jerome Gottschalk David L. Gover ANCHORAGE OFFICE MEMORANDUM th Melody L. McCoy 745 W. 4 Avenue, Ste. 502 Anchorage, AK 99501-1736 Steven C. Moore Susan Y. Noe Ph. (907) 276-0680 Brett Lee Shelton Joe M. Tenorio FAX (907) 276-2466 CHIEF FINANCIAL OFFICER ATTORNEYS Michael Kennedy Natalie A. Landreth Erin C. Dougherty Lynch DIRECTOR OF DEVELOPMENT Matthew N. Newman Donald M. Ragona Wesley J. Furlong Megan Condon CORPORATE SECRETARY Ronald P. Mack To: Tribal Leaders National Congress of American Indians – Project on the Judiciary From: Joel West Williams, Senior Staff Attorney, Native American Rights Fund RE: The Nomination of Amy Coney Barrett to the Supreme Court of the United States: An Indian Law Perspective I. Introduction On September 26, 2020, President Trump nominated Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit (Seventh Circuit) to be an Associate Justice on the Supreme Court of the United States (U.S. Supreme Court), to fill the seat opened by the death of Justice Ruth Bader Ginsburg. On October 12, 2020, the Senate Judiciary Committee will convene hearings to consider her nomination. -
The Administrative State's Passive Virtues
University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2014 The Administrative State's Passive Virtues Sharon B. Jacobs University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Administrative Law Commons, and the Courts Commons Citation Information Sharon B. Jacobs, The Administrative State's Passive Virtues, 66 ADMIN. L. REV. 565 (2014), available at https://scholar.law.colorado.edu/articles/431. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 66 Admin. L. Rev. 565 2014 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Tue May 2 11:38:55 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information THE ADMINISTRATIVE STATE'S PASSIVE VIRTUES SHARON B.JACOBS* Fift years ago, Alexander Bickelfamousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. -
Report on the Nomination of Judge Amy Coney Barrett As an Associate Justice of the United States Supreme Court
REPORT ON THE NOMINATION OF JUDGE AMY CONEY BARRETT AS AN ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT 1 ABOUT THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure equal justice for all through the rule of law, targeting in particular the inequities confronting African Americans and other racial and ethnic minorities. The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to enlist the private bar’s leadership and resources in combating racial discrimination and the resulting inequality of opportunity – work that continues to be vital today. Among its major areas of work are Educational Opportunities, Fair Housing & Community Development, Voting Rights, Criminal Justice, Economic Justice and Judicial Diversity. Since its inception, the Lawyers’ Committee has been committed to vigorous civil rights enforcement, the pursuit of equal justice under law, and fidelity to the rule of law. Lawyers’ Committee for Civil Rights Under Law 1500 K Street, N.W., 9th Fl. Washington, DC 20005 [email protected] 2 Judge Amy Coney Barrett Judge, U.S. Court of Appeals for the Seventh Circuit Nominated September 26, 2020 to United States Supreme Court 3 Table of Contents I. EXECUTIVE SUMMARY 1 II. BIOGRAPHY 2 III. ANALYSIS OF JUDGE BARRETT’S JUDICIAL OPINIONS 4 A. Workers’ and Civil Rights 4 B. Criminal Justice 5 C. Reproductive Rights 6 D. Second Amendment 7 E. Immigration 8 F. LGBTQ Rights 9 G. Healthcare 9 IV. ANALYSIS OF JUDGE BARRETT’S THEORY OF CONSTITUTIONAL INTERPRETATION 10 V. -
Speaking in a Judicial Voice
NEW YORK UNIVERSITY LAW REVIEW VOLUME 67 DECEMBER 1992 NUMBER 6 SPEAKING IN A JUDICIAL VOICE RUTH BADER GINSBURG* An active participantin the women's movement of the 1970S and,since 19SO, a mem- berof thefederaljudiciary,Ruth Bader Ginsburg has held influentialpositions as both an advocate and a judge. In this Madison Lecture, then Judge Ginsburg drew upon her experiences to examine the 'yudicial voice"from two different perspecti=e± First, she explores the relationshipamong members of the bench, advocating a greatersense of collegiality amongjudge. Second, she contrasts the Supreme Court'ssweeping opin- ion in Roe v. Wade with the Court's more restrained approach in contemporaneous cases involving explicitly gender-baseddiscrimination. offering a vision ofjudicialdeci- sionmaking that recognizes the interdependent role of thejudiciary within the Ameri- can politicalsystem. INTRODUCTION The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation's federal courts.' My remarks touch on both themes; I will speak first about collegiality in style, and next, about moderation in the substance of appellate decisiomaking. My views on these matters reflect experiences over a span of three decades. They have been shaped from my years as a law teacher beginning in the 1960s, through the 1970s when I helped to launch the American Civil Liberties Union's Women's Rights Project, and most recently during the nearly thirteen years I have had the good fortune to serve on the United States Court of Appeals for the District of Columbia Circuit. What I hope to convey about courts, I believe, is in line with the founders'-Madison's and Hamilton's---expec- * Circuit Judge, United States Court of Appeals for the DC Circuit.