JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”     

The Supreme Court as a Policy Arena: The Strategies and Tactics of State Attorneys General

Presently, state governments are more active and more successful in the U.S. Supreme Court than at any time since the New Deal. These rates of activity and success are a function of two coincident forces—the emergence of the Republican Court and the increased capacity of the states to pursue their policy goals aggressively before the High Bench. In this analysis, we seek to offer a better-defined portrait of the states' evolving advocacy in the Supreme Court. Using archival and survey data, we find that, as a group, the states are more capable Supreme Court litigators, that their perceptions of the Republican Court have encouraged them to increase their pursuit of policy goals through litigation, and that they are "procedurally rational"—i.e., their estimates of success enter into their decisions to engage the Court.     

The Clerk, the Thief, His Life as a Baker: Ashton Embry and the Supreme Court Leak Scandal

On December 16, 1919, Ashton Fox Embry, law clerk to Supreme Court Justice Joseph McKenna, abruptly resigned from the position he had held for almost nine years. His explanation? His fledgling bakery business required his undivided attention. Newspapers that morning hinted at a different reason: Embry resigned because he had conspired with at least three individuals to use inside knowledge of upcoming U.S. Supreme Court decisions to profit on Wall Street.2 A grand jury returned an indictment against Embry and his associates a few months later, and Embry’s argument that he had committed no crime ultimately reached the Supreme Court, the very institution he was accused of betraying. Despite the sensational headlines and fierce legal battle arising from his indictment, the United States Attorney quietly dismissed Embry’s case in 1929, almost ten years after the story had broken. Few Court scholars have ever heard of Embry, and the memory of Embry, much like the case against him, has disappeared with time.3 This article unravels the “Supreme Court Leak Case” by reconstructing what happened almost eighty years ago.     

The U.S. presidential election and the Bush v. Gore supreme court decision

The 2000 presidential election produced over two dozen different law suits including two separate decisions by the U.S. Supreme Court. The purpose of this essay is to examine the most important of these decisions, George W. Bush v. Albert Gore, Jr., highlighting its logic and geographic implications     

EMPTY HOUSING SPACE: AN OVERLOOKED RESOURCE

The nature of the housing problem in the United States has changed over the years while the posed solutions have not. Today the U.S. has both a surplus of housing and a shortage–the housing space is not effectively distributed. This article suggests the magnitude of underutilization of our housing space and discusses the federal and local policies which encourage over-consumption and discourage voluntary redistribution. Some pertinent recent Supreme Court decisions are discussed.     

Dueling Decisions

In a government of divided powers, the respective roles of the president and Congress in determining American foreign policy often are disputed. Rival Supreme Court decisions on this matter, U.S. v. Curtiss-Wright Export Corporation (1936), and Youngstown Sheet and Tube Co. v. Sawyer (1952), were resurrected and argued with renewed vigor following the Iran-contra affair. Despite attempts by the defenders of each decision to discredit or reinterpret the rival case, both decisions stand as reasonable, if incompatible, interpretations of constitutional meaning.     

Oversimplifying the Supreme Court

I cannot tell you what a pleasure it is to be at the Supreme Court Historical Society. Of course, the Supreme Court is fortunate to have a Chief Justice who is also Chief Historian. I have read each of Chief Justice Rehnquist's books on the Court, and they are engagingly written narratives filled with a love and knowledge of this institution. The Chief Justice is steeped in the folklore of this remarkable Court as few have ever been. This is just one reason those of us throughout the federal judiciary admire and love the Chief. He has shown kindness to me ever since I was a young law clerk for Justice Lewis Powell. I don't know if it's appropriate or not to dedicate a speech, but I am going to do so anyway. This speech is for him.     

A Transformed Triangle: Court, Congress, and Presidency in Civil Rights

The relative permeability of the three elements of a triangle-the Supreme Court, Congress, and the president-to civil rights interest groups has varied over time. For almost two decades after World War II, the Supreme Court was the groups' preferred arena because Congress was resistant and presidents could thus do little or were hesitant to act. For a brief time in the mid-1960s the president and Congress became supportive of civil rights groups' claims while the Court also remained accessible. Starting in the late 1960s executive and legislative support for civil rights moderated, with presidential support declining significantly in the 1980s. When the Supreme Court adopted that latter stance, Congress became the body through which to protect civil rights by reversing the Court's decisions. In this examination of the "transformed triangle" in civil rights policymaking, we look at this change over time and at "flip-flops" in litigation as one administration changes the position espoused by its predecessor, and we also give some attention to the Supreme Court's response to congressional reversal of its rulings.     

From Normative Debates to Comparative Methodology: The Three Waves of Post-Charter Supreme Court Scholarship in Canada

This article surveys the literature on the Supreme Court of Canada following the 1982 introduction of the Canadian Charter of Rights and Freedoms, and argues it has taken place in three distinct “waves.” The first involved tentative, prospective, and normative arguments about the impact of the Charter on national unity and Canada’s political institutions. The second was characterized by the legitimacy debate, the dialogue debate, and qualitative examination of how other political actors responded to Supreme Court decisions. By contrast, the third wave, initiated by American scholars drawing from American research, has been less normative, more comparative, and methodologically rigorous. While this comparative shift has been beneficial, the retreat from normative questions contributes to a misplaced sense that important debates are now settled. We urge scholars to engage in intellectual cross-fertilization by drawing from third-wave contributions to address normative questions about the Supreme Court’s increasingly important role in Canadian politics.     

Contesting Commerce: Gibbons v. Ogden, Steam Power, and Social Change

The U.S. Supreme Court case Gibbons v. Ogden (1824) ¹ represents one of the most significant yet least understood cases in the history of American jurisprudence. Most accounts depict the case as a constitutional showdown between former New Jersey Governor Aaron Ogden and his estranged business partner, a Georgian businessman and planter named Thomas Gibbons. Ogden charged Gibbons with operating a steamboat on the Hudson River in violation of the Fulton–Livingston Steamboat monopoly that controlled steam travel in the state of New York. In March 1824, Chief Justice John Marshall ruled for the Supreme Court that Gibbons' federal coasting license trumped a state grant issued to Ogden by the Fulton–Livingston syndicate. ²     

Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

While political scientists and legal academics have both evinced a “fascination with disagreement on courts,” ¹ this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.     

Plessy versus Lochner: The Berea College Case

Legal scholars and historians have often claimed to find intellectual affinities between the U.S. Supreme Court's notorious opinions in Plessy v. Ferguson and Lochner v. New York. In Plessy, the Court upheld a law requiring private railroads to enforce segregation, while in Lochner the Court invalidated a maximum hours law for bakers. Bruce Ackerman asserts that Plessy had its intellectual roots "in the laissez-faire theories expressed one decade later in cases like Lochner." In support of his thesis, Ackerman relies onthe Plessy Court's statement that if the two races are to mingle, it must be "the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals." Brook Thomas also blames the Plessy ruling on laissez-faire ideology. He argues that laissez-faire theory led the Court to seek to encourage the "natural" forces of segregation.     

Admiralty Law and Neutrality Policy in the 1790s: An Example of Judicial, Legislative, and Executive Cooperation

The subject of admiralty law may have lost much of its luster over the years, but during the first decades of the nation's existence this branch of the law provided a vehicle for establishing foreign policy principles that helped protect the new nation. The admiralty cases that reached the U.S. Supreme Court in the mid-1790s were important to administration policy in the realm of foreign affairs and to the Court's own development as an independent arm of the national government.     

The Right to Mobility: The Production of Mobility in the Courtroom

This paper considers the way mobility has been given meaning by decisions in the United States Supreme Court. It argues that in four key decisions the Court constructed a de facto “right to mobility” by linking mobility to notions of citizenship. The paper suggests that these cases illustrate the importance of considering how mobilities are given meaning in particular contexts and how these meanings are framed within notions of mobility as an essential human freedom. The paper is framed by discussions of mobility, rights and citizenship and concludes with a discussion of the role of othering in the production of mobility‐as‐citizenship.     

Punctuated Equilibrium and the Supreme Court

In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

Interpreting the Bill of Rights and the Nature of Federalism: Barron v. City of Baltimore

In 1833, a mere forty-five years after the Constitution of the United States took effect, the young republic was striving to establish the form its constitutional government would take. For while the Constitution and its first ten amendments had set forth many principles regarding the rights of individual citizens with respect to the actions of their government, the precise nature of these relations would be determined in large part by U.S. Supreme Court Chief Justice John Marshall.     

Introduction: The Incident at Lathrop Station

Last year the Journal of Supreme Court History published the first part of Justice Stephen J. Field's memoir, Personal Reminiscences of Early Days in California , with a promise to reprint the second half at a later time. ¹ This is the second installment. It is not technically part of the memoir at all. Rather, it is the story of one particular incident: the events that led to the shooting and death of Field's former colleague on the Supreme Court of California, David S. Terry. As you will soon see, the story involves powerful personalities, incredible wealth, sex, violence, and greed. These themes are not unusual in legal history. What is unusual in the story that follows, however, is that judges are the principal players.     

Tribute to Justice Souter

When the U.S. Supreme Court Justices took their seats at the beginning of the 2009 Term, the Bench looked different. Gone from the Bench, after nineteen years, was David H. Souter. He returned to his home in New Hampshire, a state he likes enormously. Justice Souter will be missed by his former colleagues and by advocates before the Court, by legal scholars nationwide and by all who follow the Court's work and activities.     

“Spreading the Wealth”: Justice Tom C. Clark's Wide‐ranging Efforts to Open the Doors of the Law Clerk Ranks

Associate Justice Tom C. Clark retired from the Supreme Court at the conclusion of its 1966 term to avoid even the appearance of impropriety when his son, Ramsey, became the U.S. Attorney General. “I believe it would be best for me to retire,” Clark wrote one well‐wisher, “Litigants have enough problems without having a father‐son psychology to face. And while there is no actual conflict the potential is there and the appearance of justice is as important and effective as the real thing.” ¹ Clark had served on the Court eighteen years, and he began his retirement with a three‐month, state‐sponsored goodwill trip around the world, which was cut short when he contracted hepatitis in Thailand.