75 research outputs found

    Report from the Dean 2012

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    Annual Dean\u27s Report with a special focus on Chicago-Kent\u27s Institute on the Supreme Court of the United States (ISCOTUS).https://scholarship.kentlaw.iit.edu/reports/1001/thumbnail.jp

    Annual Report - 2016

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    Annual report of the activity of Scholarly Commons @ IIT Chicago-Kent College of Law for April 2015 - April 2016

    Comments on McGahn A Brief History of Judicial Appointments From the Last 50 Years Through the Trump Administration

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    Donald McGahn is a respected member of the Washington D.C. legal community, known especially for his expertise in election law. He served as White House counsel in the Trump administration until October 2018 and was a key player in the Trump administration’s judicial appointments process.His article is witty, sometimes revealing, but above all a description, as he sees it, of the decades-long deterioration of the process for Senate confirmation of federal judicial nominees, with some blame assigning. He also provides a few behind-the-scenes looks at Trump administration confirmation battles, and some recommendations for easing contentiousness in— or at least, speeding up—the process. While he does not hide his Republican leanings—e.g., “President Carter made no Supreme Court appointments ... thankfully”—this is in no way a slash-and-burn propaganda piece. His article stands for two propositions—first, the process has deteriorated and, second, although, there is blame to go around, Democrats deserve more of it than Republicans. The article also vindicates the always timely aphorism that the plural of “anecdote” is not “data.” McGahn argues primarily from example. Those he cites are illustrative and help flesh out his arguments, but they are less dispositive than they might appear on first blush. Of course, examples are one staple of most any argument—this commentary included—but McGahn relies on them largely to the exclusion of aggregate data. To be sure, the article is a lightly edited revision of a conversational law school lecture and does not purport to be an academic article weighed down by dense scholarly apparatus. That in some ways is one of its virtues. But even an informal narrative can seek various types of data to illuminate its subject—or acknowledge the limitations of the examples it uses. In Part I of this commentary, I summarize the judicial appointment developments of the last forty or fifty years more fully than does McGahn; in Part II, I unpack what might be charitably called creative history by McGahn and other defenders of the Senate’s shutting down the 2016 Merrick Garland Supreme Court nomination; in Part III, I consider McGahn’s and others’ proposals to help change the nomination and confirmation process; and in Part IV, I summarize briefly what appear to be underlying causes of that broken process and possible consequences of a judiciary populated in no small part by judges who gained office with a minimal popular mandate for their selection

    Justice Scalia, Originalism and Textualism

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    “A Cloud of Constitutional Illegitimacy”: Prospectivity and the De Facto Doctrine in the Gerrymandering Context

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    Courts have traditionally shielded the acts of malapportioned or otherwise illegally constituted legislatures from dissolution by employing the “de facto doctrine,” an ancient common law policy tool with medieval roots. In its most basic form, the de facto doctrine seeks to safeguard the acts of unlawful but well-intentioned public officials from collateral attack out of concern for third-party reliance and a bald recognition of necessity. However, the doctrine as traditionally articulated only serves to validate past official acts; once the official in question has lost the “color of authority,” the doctrine no longer affords his actions de facto validity. Although this has not prevented courts from extending the doctrine, or something like it, to cover prospective acts in certain scenarios, courts have generally avoided “taking a look under the hood” and wrestling with the policy concerns underlying the doctrine to see if they still apply prospectively. This Note examines the potential use of the de facto doctrine in the gerrymandering context. Both racial and partisan gerrymandering present distinct challenges for courts seeking to prospectively apply the de facto doctrine to acts of a state legislature: generally, gerrymanders are created intentionally, making it harder to apply any “good faith” exception; illegal gerrymandering by its nature trespasses on important constitutional guarantees; and the traditional motivations for the de facto doctrine—necessity and reliance—arguably do not apply to legislation crafted by an unconstitutional government body seeking to preserve its power. By examining the historical roots of the doctrine, tracing its modern development, and considering its underlying policy rationales, this Note seeks to answer two questions: (1) how have courts expanded the de facto doctrine and its animating principles prospectively?; and (2) how do those expansions shape the prospective application of the doctrine in the gerrymandering context

    With All Deliberate Speed : The Ironic Demise of (and Hope for) Affirmative Action

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    This Essay examines the history of affirmative action, the recent Supreme Court oral arguments in the cases of SFFA v. Harvard and SFFA v. UNC Chapel Hill, the perspective of each individual Justice on these cases, and the prospects for the Court’s rulings. It frames these issues around the irony of Brown v. Board of Education II (1955), where the U.S. Supreme Court ordered that school desegregation occur “with all deliberate speed.” Many critical commentators view this ironic phrase as a signal to Southern states to resist desegregation, even as it literally seemed to embody urgency. This Essay argues that in various ways, “with all deliberate speed” applies to the U.S. Supreme Court’s jurisprudence on race-conscious university admissions policies, and that it reflects both the demise of and the best hope for such policies

    Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings

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    Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from the legal materials. Instead the justices must bring judgment to bear, and that judgment inevitably incorporates subjectivity and reference to values and principles not explicit in the legal sources. This Article considers the extent to which nominees admit to such subjectivity and the extent to which they claim neutrality or objectivity, looking at all confirmation hearings since 1955. Through coding the nominees’ testimony, the Article identifies some of the circumstances under which these claims and admissions are most likely to be made. Among other findings, the Article reports that Democratic and Republican nominees are equally likely to claim neutrality in colloquy with any particular senator. On the other hand, Democratic nominees are about twice as likely as Republican nominees to admit to a role for subjectivity. Drawing on the insights of cultural cognition scholars, the Article then considers the implications of such findings and raises potential concerns for public perceptions of the Court, especially in light of our current highly polarized political culture
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