Procedural Justice and the Shadow Docket

This Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket. Utilizing an experimental survey conducted over three critical time points—coinciding with the leak of the Dobbs v. Jackson Women’s Health Organization decision, its subsequent announcement, and a period of procedural calm—this Article measures the public’s reaction to various procedural scenarios, including the usage of the emergency docket. Results indicate that while the use of the emergency docket doesn’t substantially erode the Court’s diffuse support, it does impact how much respondents approve of how well the Court is doing its job, significantly so when filtered through policy agreement. This Article further finds that the Court’s Dobbs decision strongly influenced perceptions, particularly among those aware of the leak or the opinion, with disagreement causing more pronounced and consistent negative effects than the partial positive effects from agreement. These findings underscore the impact of the Court’s own behaviors on its perceived authority, suggesting that the justices’ actions, particularly their adherence to fair and transparent procedures, can bolster the Court’s legitimacy. As such, this Article highlights the urgent need for the Supreme Court to embrace resolving legal questions via due process in order to reaffirm its critical role in our democracy and regain public trust

The Ideology of Legal Interpretation

This Essay questions whether consistency in legal interpretation is truly a manifestation of the influence of law or instead a means to a preferred policy end

Context and Compliance: A Comparison of State Supreme Courts and the Circuits

A host of scholars have argued that decision making in lower courts is at least partially determined by decision making in the U.S. Supreme Court. In other words, Supreme Court jurisprudence in a given area influences the way that the lower courts decide similar cases. This may seem like an unremarkable assertion given the principle of stare decisis and the expectation that lower courts are bound by decisions made by higher courts. Nonetheless, there are intriguing evidentiary omissions with regard to what we know about compliance with Supreme Court precedent. In particular, despite the voluminous expenditures of scholarly time and attention, we do not know how the High Court’s influence on the federal circuit courts compares with its influence on the state courts of last resort. We might well assume that the Supreme Court has far greater impact on the U.S. Courts of Appeals since those courts are more closely constrained to follow Supreme Court precedent by virtue of their position in the federal judicial system. In contrast, state courts of last resort are not direct members of the federal judicial system and are therefore more divorced from Supreme Court influence. Further, while we know that the Supreme Court hears very few cases from the federal courts of appeals, it hears an even smaller percentage of cases most recently decided by the state supreme courts. It seems, therefore, that the motivation to abide by Supreme Court rulings is dramatically reduced in the state courts and, accordingly, that a reasonable expectation is that Supreme Court precedent will fare worse in structuring decision making on state courts in comparison to decisions on the federal circuit courts. Contrary to these expectations, however, Martinek found that state court decisions actually do comport closely with Supreme Court policy in the area of search and seizure. In fact, Martinek found that the state supreme courts decide their cases in greater accord with High Court prescriptions than do the federal circuit courts. Benesh and Martinek’s findings are also suggestive in the area of confession, the area of law we consider in this Article. They found that state high courts are influenced by Supreme Court policy, even after controlling for the influence state elites (who are instrumental in staffing the bench) have on these courts. They characterize this influence as a legal one, rather than one driven by a fear of reversal, because only those facts the Court deemed relevant to the decision whether to admit a given confession were significant, while the ideological predisposition of the Supreme Court, which a lower court looking to avoid reversal would consider, was not. Motivated by these somewhat counterintuitive findings, we suggest an additional comparative analysis of Supreme Court impact on state and lower federal courts. Here, we undertake a systematic comparison of decision making in state supreme courts and the U.S. courts of appeals in the area of criminal confessions. Prior work has demonstrated that the Supreme Court does indeed influence the federal courts of appeals in this area of law.11 We provide additional evidence that all lower courts are constrained and that the influence of the Supreme Court is seen throughout the lower courts, be they state or federal courts, and without regard to the fact that the High Court appears to do little to induce that compliance. Further, an increasing number of decisions emanating from both state and federal lower courts are final. If one type of court—state high court or federal intermediate appellate court—more closely adheres to Supreme Court precedent than another, there are important ramifications for due process. Certainly, it is unremarkable to note that there are regional differences across the country—the federal nature of American government is both a product of and a reflection of this fact. And it is also unremarkable to observe that these differences most likely manifest themselves in the policy making of various branches and levels of government. But the Supreme Court is charged with interpreting the Constitution for the entire nation, and its interpretation of the rights afforded to the accused in terms of representation and self-incrimination, which the Court has confirmed are constitutionally based, must be effectuated in all criminal systems, not just in the one for which it is naturally the apex (i.e., the federal system). If Supreme Court decisions did not matter to the state supreme courts, there would be myriad cases decided in the legal systems of this country every day that may be inconsistent with (or perhaps downright abhorrent to) Supreme Court policy. Because the High Court is the final arbiter of the Constitution, surely we expect some attention to be paid to it by the state courts. Just how much attention, and how that attention compares with the attention paid by the U.S. courts of appeals, is the question of interest in this Article

Accelerated inbreeding depression suggests synergistic epistasis for deleterious mutations in Drosophila melanogaster

Epistasis may have important consequences for a number of issues in quantitative genetics and evolutionary biology. In particular, synergistic epistasis for deleterious alleles is relevant to the mutation load paradox and the evolution of sex and recombination. Some studies have shown evidence of synergistic epistasis for spontaneous or induced deleterious mutations appearing in mutation-accumulation experiments. However, many newly arising mutations may not actually be segregating in natural populations because of the erasing action of natural selection. A demonstration of synergistic epistasis for naturally segregating alleles can be achieved by means of inbreeding depression studies, as deleterious recessive allelic effects are exposed in inbred lines. Nevertheless, evidence of epistasis from these studies is scarce and controversial. In this paper, we report the results of two independent inbreeding experiments carried out with two different populations of Drosophila melanogaster. The results show a consistent accelerated inbreeding depression for fitness, suggesting synergistic epistasis among deleterious alleles. We also performed computer simulations assuming different possible models of epistasis and mutational parameters for fitness, finding some of them to be compatible with the results observed. Our results suggest that synergistic epistasis for deleterious mutations not only occurs among newly arisen spontaneous or induced mutations, but also among segregating alleles in natural populationsWe acknowledge the support by Uvigo Marine Research Centre funded by the “Excellence in Research (INUGA)” Programme from the Regional Council of Culture, Education and Universities, with co-funding from the European Union through the ERDF Operational Programme Galicia 2014-2020. This work was funded by Agencia Estatal de Investigación (AEI) (CGL2016-75904-C2-1-P), Xunta de Galicia (ED431C 2016-037) and Fondos Feder: “Unha maneira de facer Europa.” SD was founded by a predoctoral (FPI) grant from Ministerio de Economía y Competitividad, SpainS

Convalescent plasma in patients admitted to hospital with COVID-19 (RECOVERY): a randomised controlled, open-label, platform trial

SummaryBackground Azithromycin has been proposed as a treatment for COVID-19 on the basis of its immunomodulatoryactions. We aimed to evaluate the safety and efficacy of azithromycin in patients admitted to hospital with COVID-19.Methods In this randomised, controlled, open-label, adaptive platform trial (Randomised Evaluation of COVID-19Therapy [RECOVERY]), several possible treatments were compared with usual care in patients admitted to hospitalwith COVID-19 in the UK. The trial is underway at 176 hospitals in the UK. Eligible and consenting patients wererandomly allocated to either usual standard of care alone or usual standard of care plus azithromycin 500 mg once perday by mouth or intravenously for 10 days or until discharge (or allocation to one of the other RECOVERY treatmentgroups). Patients were assigned via web-based simple (unstratified) randomisation with allocation concealment andwere twice as likely to be randomly assigned to usual care than to any of the active treatment groups. Participants andlocal study staff were not masked to the allocated treatment, but all others involved in the trial were masked to theoutcome data during the trial. The primary outcome was 28-day all-cause mortality, assessed in the intention-to-treatpopulation. The trial is registered with ISRCTN, 50189673, and ClinicalTrials.gov, NCT04381936.Findings Between April 7 and Nov 27, 2020, of 16 442 patients enrolled in the RECOVERY trial, 9433 (57%) wereeligible and 7763 were included in the assessment of azithromycin. The mean age of these study participants was65·3 years (SD 15·7) and approximately a third were women (2944 [38%] of 7763). 2582 patients were randomlyallocated to receive azithromycin and 5181 patients were randomly allocated to usual care alone. Overall,561 (22%) patients allocated to azithromycin and 1162 (22%) patients allocated to usual care died within 28 days(rate ratio 0·97, 95% CI 0·87–1·07; p=0·50). No significant difference was seen in duration of hospital stay (median10 days [IQR 5 to >28] vs 11 days [5 to >28]) or the proportion of patients discharged from hospital alive within 28 days(rate ratio 1·04, 95% CI 0·98–1·10; p=0·19). Among those not on invasive mechanical ventilation at baseline, nosignificant difference was seen in the proportion meeting the composite endpoint of invasive mechanical ventilationor death (risk ratio 0·95, 95% CI 0·87–1·03; p=0·24).Interpretation In patients admitted to hospital with COVID-19, azithromycin did not improve survival or otherprespecified clinical outcomes. Azithromycin use in patients admitted to hospital with COVID-19 should be restrictedto patients in whom there is a clear antimicrobial indication

Law Clerks as Advisors: A Look at the Blackmun Papers

The Justices of the United States Supreme Court seek advice, by way of cert pool memos, when making their consequential agenda-setting decisions. There is some debate over the extent to which these law clerks actually influence the Justices. Focusing on the certiorari stage and on the information and advice provided to the Court via the cert pool memos, we ascertain the extent to which the contents of the memos drive the decision making of the Court. We find that information about conflict, amici, and the position of the United States does indeed influence the Court’s votes, but also that the clerks’ specific advice, the apparent percolation of the issue, and the perceptions of the strength of the reasoning below matters as well. We conclude with some thoughts on the findings and directions for future research

Procedural Justice and the Shadow Docket

This Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket. Utilizing an experimental survey conducted over three critical time points—coinciding with the leak of the Dobbs v. Jackson Women’s Health Organization decision, its subsequent announcement, and a period of procedural calm—this Article measures the public’s reaction to various procedural scenarios, including the usage of the emergency docket. Results indicate that while the use of the emergency docket doesn’t substantially erode the Court’s diffuse support, it does impact how much respondents approve of how well the Court is doing its job, significantly so when filtered through policy agreement. This Article further finds that the Court’s Dobbs decision strongly influenced perceptions, particularly among those aware of the leak or the opinion, with disagreement causing more pronounced and consistent negative effects than the partial positive effects from agreement. These findings underscore the impact of the Court’s own behaviors on its perceived authority, suggesting that the justices’ actions, particularly their adherence to fair and transparent procedures, can bolster the Court’s legitimacy. As such, this Article highlights the urgent need for the Supreme Court to embrace resolving legal questions via due process in order to reaffirm its critical role in our democracy and regain public trust