Caqe ,T-)65 61
Total Page：16
File Type：pdf, Size：1020Kb
Load more
Recommended publications
-
Early Understandings of the "Judicial Power" in Statutory Interpretation
ARTICLE ALL ABOUT WORDS: EARLY UNDERSTANDINGS OF THE 'JUDICIAL POWER" IN STATUTORY INTERPRETATION, 1776-1806 William N. Eskridge, Jr.* What understandingof the 'judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, ProfessorEskridge explores the background understandingof the judiciary's role in the interpretationof legislative texts, and answers earlier work by scholars like ProfessorJohn Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpre- tive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretationbegan with the words of the text, it by no means confined its searchfor meaning to the plain text. He concludes that the early practices, especially the methodology ofJohn Marshall,provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutionalnorms in the service of carrying out the judiciary's constitutional role. TABLE OF CONTENTS Introduction .................................................... 991 I. Three Nontextualist Powers Assumed by English Judges, 1500-1800 ............................................... 998 A. The Ameliorative Power .............................. 999 B. Suppletive Power (and More on the Ameliorative Pow er) .............................................. 1003 C. Voidance Power ..................................... 1005 II. Statutory Interpretation During the Founding Period, 1776-1791 ............................................... 1009 * John A. Garver Professor ofJurisprudence, Yale Law School. I am indebted toJohn Manning for sharing his thoughts about the founding and consolidating periods; although we interpret the materials differently, I have learned a lot from his research and arguments. -
Justice William Cushing and the Treaty-Making Power
Vanderbilt Law Review Volume 10 Issue 2 Issue 2 - February 1957 Article 9 2-1957 Justice William Cushing and the Treaty-Making Power F. William O'Brien S.J. Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons Recommended Citation F. William O'Brien S.J., Justice William Cushing and the Treaty-Making Power, 10 Vanderbilt Law Review 351 (1957) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol10/iss2/9 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]. JUSTICE WILLIAM CUSHING AND THE TREATY-MAKING POWER F. WILLIAM O'BRIEN, S.J.* Washington's First Appointees Although the work of the Supreme Court during the first few years was not great if measured in the number of cases handled, it would be a mistake to conclude that the six men who sat on the Bench during this formative period made no significant contribution to the develop- ment of American constitutional law. The Justices had few if any precedents to use as guides, and therefore their judicial work, limited though it was in volume, must be considered as stamped with the significance which attaches to all pioneer activity. Moreover, most of this work was done while on circuit duty in the different districts, and therefore from Vermont to Georgia the Supreme Court Justices were emissaries of good will for the new Constitution and the recently established general government. -
Conflicts of Interest in Bush V. Gore: Did Some Justices Vote Illegally? Richard K
Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship Spring 2003 Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally? Richard K. Neumann Jr. Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Richard K. Neumann Jr., Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally?, 16 Geo. J. Legal Ethics 375 (2003) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/153 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. ARTICLES Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally? RICHARD K. NEUMANN, JR.* On December 9, 2000, the United States Supreme Court stayed the presidential election litigation in the Florida courts and set oral argument for December 11.1 On the morning of December 12-one day after oral argument and half a day before the Supreme Court announced its decision in Bush v. Gore2-the Wall Street Journalpublished a front-page story that included the following: Chief Justice William Rehnquist, 76 years old, and Justice Sandra Day O'Connor, 70, both lifelong Republicans, have at times privately talked about retiring and would prefer that a Republican appoint their successors.... Justice O'Connor, a cancer survivor, has privately let it be known that, after 20 years on the high court,'she wants to retire to her home state of Arizona ... -
Advisory Opinions and the Problem of Legal Authority
Vanderbilt Law Review Volume 74 Issue 3 April 2021 Article 5 4-2021 Advisory Opinions and the Problem of Legal Authority Christian R. Burset Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Judges Commons, and the Jurisprudence Commons Recommended Citation Christian R. Burset, Advisory Opinions and the Problem of Legal Authority, 74 Vanderbilt Law Review 621 (2021) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol74/iss3/5 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]. Advisory Opinions and the Problem of Legal Authority Christian R. Burset* The prohibition against advisory opinions is fundamental to our understanding of federal judicial power, but we have misunderstood its origins. Discussions of the doctrine begin not with a constitutional text or even a court case, but a letter in which the Jay Court rejected President Washington’s request for legal advice. Courts and scholars have offered a variety of explanations for the Jay Court’s behavior. But they all depict the earliest Justices as responding to uniquely American concerns about advisory opinions. This Article offers a different explanation. Drawing on previously untapped archival sources, it shows that judges throughout the anglophone world—not only in the United States but also in England and British India— became opposed to advisory opinions in the second half of the eighteenth century. The death of advisory opinions was a global phenomenon, rooted in a period of anxiety about common-law authority. -
Keep Reading Wilson As a Justice
Wilson as a Justice MAEVA MARCUS* ABSTRACT James Wilson, a founding father of great intellect and promise, never ful®lled his potential as a Justice. This paper explores his experience on the Supreme Court and the reasons that led to his failure to achieve the distinction that was expected of him. James Wilson very much wanted to be the ®rst Chief Justice.1 But when George Washington denied him that honor and nominated him to be an Associate Justice, he accepted and threw himself into the work with characteristic industry.2 Other than a title and $500 more in annual salary3 (Wilson probably wanted this more than anything else), Wilson lost little. Life as an Associate Justice would be no different from life as the Chief. A Justice occupied one of the most exalted positions in the new government and was paid more than any other federal em- ployee, except the President and the Vice-President.4 Nominations were the sub- ject of ®erce competition.5 But in 1789 no one knew exactly what that job would entail. This paper gives the reader some idea of what a Justice, and speci®cally James Wilson, did in the 1790s.6 Wilson spent more of his time on the bench of circuit courts than he did on the Supreme Court bench; thus, this paper will focus signi®- cantly on his circuit court activities.7 And Wilson performed his circuit court * Currently Director of the Institute for Constitutional History at the New-York Historical Society and Research Professor at the George Washington University Law School and General Editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Maeva Marcus previously edited The Documentary History of the Supreme Court of the United States, 1789-1800, an eight-volume series completed in 2006. -
Supreme Court Justices
The Supreme Court Justices Supreme Court Justices *asterick denotes chief justice John Jay* (1789-95) Robert C. Grier (1846-70) John Rutledge* (1790-91; 1795) Benjamin R. Curtis (1851-57) William Cushing (1790-1810) John A. Campbell (1853-61) James Wilson (1789-98) Nathan Clifford (1858-81) John Blair, Jr. (1790-96) Noah Haynes Swayne (1862-81) James Iredell (1790-99) Samuel F. Miller (1862-90) Thomas Johnson (1792-93) David Davis (1862-77) William Paterson (1793-1806) Stephen J. Field (1863-97) Samuel Chase (1796-1811) Salmon P. Chase* (1864-73) Olliver Ellsworth* (1796-1800) William Strong (1870-80) ___________________ ___________________ Bushrod Washington (1799-1829) Joseph P. Bradley (1870-92) Alfred Moore (1800-1804) Ward Hunt (1873-82) John Marshall* (1801-35) Morrison R. Waite* (1874-88) William Johnson (1804-34) John M. Harlan (1877-1911) Henry B. Livingston (1807-23) William B. Woods (1881-87) Thomas Todd (1807-26) Stanley Matthews (1881-89) Gabriel Duvall (1811-35) Horace Gray (1882-1902) Joseph Story (1812-45) Samuel Blatchford (1882-93) Smith Thompson (1823-43) Lucius Q.C. Lamar (1883-93) Robert Trimble (1826-28) Melville W. Fuller* (1888-1910) ___________________ ___________________ John McLean (1830-61) David J. Brewer (1890-1910) Henry Baldwin (1830-44) Henry B. Brown (1891-1906) James Moore Wayne (1835-67) George Shiras, Jr. (1892-1903) Roger B. Taney* (1836-64) Howell E. Jackson (1893-95) Philip P. Barbour (1836-41) Edward D. White* (1894-1921) John Catron (1837-65) Rufus W. Peckham (1896-1909) John McKinley (1838-52) Joseph McKenna (1898-1925) Peter Vivian Daniel (1842-60) Oliver W. -
Journal of Supreme Court History
Journal of Supreme Court History THE SUPREME COURT HISTORICAL SOCIETY THURGOOD MARSHALL Associate Justice (1967-1991) Journal of Supreme Court History PUBLICATIONS COMMITTEE E. Barrett Prettyman, Jr. Chairman Donald B. Ayer Louis R. Cohen Charles Cooper Kenneth S. Geller James J. Kilpatrick Melvin I. Urofsky BOARD OF EDITORS Melvin I. Urofsky, Chairman Herman Belz Craig Joyce David O'Brien David J. Bodenhamer Laura Kalman Michael Parrish Kermit Hall Maeva Marcus Philippa Strum MANAGING EDITOR Clare Cushman CONSULTING EDITORS Kathleen Shurtleff Patricia R. Evans James J. Kilpatrick Jennifer M. Lowe David T. Pride Supreme Court Historical Society Board of Trustees Honorary Chairman William H. Rehnquist Honorary Trustees Harry A. Blackmun Lewis F. Powell, Jr. Byron R. White Chairman President DwightD.Opperman Leon Silverman Vice Presidents VincentC. Burke,Jr. Frank C. Jones E. Barrett Prettyman, Jr. Secretary Treasurer Virginia Warren Daly Sheldon S. Cohen Trustees George Adams Frank B. Gilbert Stephen W. Nealon HennanBelz Dorothy Tapper Goldman Gordon O. Pehrson Barbara A. Black John D. Gordan III Leon Polsky Hugo L. Black, J r. William T. Gossett Charles B. Renfrew Vera Brown Geoffrey C. Hazard, Jr. William Bradford Reynolds Wade Burger Judith Richards Hope John R. Risher, Jr. Patricia Dwinnell Butler William E. Jackson Harvey Rishikof Andrew M. Coats Rob M. Jones William P. Rogers William T. Coleman,1r. James 1. Kilpatrick Jonathan C. Rose F. Elwood Davis Peter A. Knowles Jerold S. Solovy George Didden IIJ Harvey C. Koch Kenneth Starr Charlton Dietz Jerome B. Libin Cathleen Douglas Stone John T. Dolan Maureen F. Mahoney Agnes N. Williams James Duff Howard T. -
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. -
Advisory Opinions and the Influence of the Supreme Court Over American Policymaking
ADVISORY OPINIONS AND THE INFLUENCE OF THE SUPREME COURT OVER AMERICAN POLICYMAKING The influence and prestige of the federal judiciary derive primarily from its exercise of judicial review. This power to strike down acts of the so-called political branches or of state governments as repugnant to the Constitution — like the federal judicial power more generally — is circumscribed by a number of self-imposed justiciability doctrines, among the oldest and most foundational of which is the bar on advi- sory opinions.1 In accord with that doctrine, the federal courts refuse to advise other government actors or private individuals on abstract legal questions; instead, they provide their views only in the course of deciding live cases or controversies.2 This means that the Supreme Court will not consider whether potential legislative or executive ac- tion violates the Constitution when such action is proposed or even when it is carried out, but only when it is challenged by an adversary party in a case meeting various doctrinal requirements. So, if a legisla- tive coalition wishes to enact a law that might plausibly be struck down — such as the 2010 healthcare legislation3 — it must form its own estimation of whether the proposal is constitutional4 but cannot know for certain how the Court will ultimately view the law. The bar on advisory opinions is typically justified by reference to the separation of powers and judicial restraint: when courts answer le- gal questions outside the legal dispute-resolution process, they reach beyond the judicial role and assume a quasi-legislative character. But ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See Flast v. -
Truth About Justice Iredell's Dissent in Chisholm V. Georgia (1793) John V
NORTH CAROLINA LAW REVIEW Volume 73 | Number 1 Article 7 11-1-1994 Truth about Justice Iredell's Dissent in Chisholm v. Georgia (1793) John V. Orth Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation John V. Orth, Truth about Justice Iredell's Dissent in Chisholm v. Georgia (1793), 73 N.C. L. Rev. 255 (1994). Available at: http://scholarship.law.unc.edu/nclr/vol73/iss1/7 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE TRUTH ABOUT JUSTICE IREDELL'S DISSENT IN CHISHOLM v. GEORGIA (1793) JOHN V. ORTH* Professor John Orth delivered this lecture at the Univer- sity of North Carolina School of Law on April 14, 1994, as part of the Faculty Perspectives Series. Professor Orth ex- plains that Justice Iredell's dissent in Chisolm v. Georgia has long been misrepresented: by the Supreme Court in its inter- pretation of the events surrounding the Eleventh Amend- ment's ratification;by Southerners who espoused states rights in the nineteenth century; and by legal historians who verified these accounts. Professor Orth exposes the "truth" in Justice Iredell's dissent-that the opinion of the North Carolinajus- tice not only reveals his Federalistleanings, but also presages Chief Justice John Marshall's reasoning in Marbury v. Madison. What is truth? said jesting Pilate, and would not stay for an answer. -
“Judicial Lockjaw”: the Debate Over Extrajudicial Activity
\\server05\productn\N\NYU\82-2\NYU205.txt unknown Seq: 1 18-APR-07 8:21 UNDERSTANDING “JUDICIAL LOCKJAW”: THE DEBATE OVER EXTRAJUDICIAL ACTIVITY LESLIE B. DUBECK* Federal judges are expected to conduct themselves differently than their counter- parts in the political branches. This Note considers the policy and historical rea- sons used to justify this different standard of conduct and concludes that these justifications are largely unsupported or overstated. These erroneous justifications obfuscate the debate over extrajudicial conduct and may result in a suboptimal level of extrajudicial activity. INTRODUCTION In 2006, news coverage of the State of the Union address included an analysis of the behavior of the four Supreme Court Justices in attendance. The Washington Post reported: “When Bush said ‘We love our freedom, and we will fight to keep it,’ Thomas looked at Roberts, who looked at Breyer, who gave an approving shrug; all four gentlemen stood and gave unanimous applause.”1 This brief episode illustrates three important points: First, there is a deep- seated understanding that federal judges are held to a different stan- dard of behavior than their counterparts in the legislative and execu- tive branches. Although audience members on both sides of the aisle were applauding, the Justices hesitated to do so. Second, it is difficult to identify exactly what is expected of judges. The Justices had to confer to determine whether applause would be appropriate. Third, the public is aware of the special behavior expected of judges. The Washington Post found it relevant enough to warrant a story the fol- lowing morning. Sixty years before this incident, Justice Felix Frankfurter noted that he suffered from “judicial lockjaw”2—a phenomenon of self- censorship that prevents judges from speaking about the judicial pro- cess and from pursuing extrajudicial activities. -
The Line Item Veto Case and the Separation of Powers
The Line Item Veto Case and the Separation of Powers Matthew Thomas Klinet In Clinton v. City of New York, the Supreme Court struck down the Line Item Veto Act because it upset the finely wrought law-making process provided for in the Constitution's Presentment Clause. This Comment argues that the Court reached the right result in Clinton, but for the wrong reason. The Act gave the President the power to cancel certain budgetary items, thus vesting more law-execution power in the executive. Properly understood, the Act did not expand or alter the President's limited law- making veto power, as it is defined in the Presentment Clause. This Comment argues that the Act's reshuffling of power did, however, violate the separation-of-powersprinciple-one of the core political tenets upon which our government of limited powers rests. This Comment further con- tends that the Court should not have relied upon even an expansive inter- pretation of the Presentment Clause to strike down the Act, because as case law and history teach, the clause is directedat curbing the expansion of Congress'spower, not that of the President.Rather, the Court should have examined in their full light the fundamental separation-of-powers issues at play. After determining whether the shift in power presented the several indicia of a separation-of-powersviolation, the Court should have struck down the Line Item Veto Act on explicit separation-of-powers grounds, thus vindicating the long-term liberty interest that the principle centrally serves to safeguard. INTRODUCTION Dissents often help create a Supreme Court Justice's reputation.