Does the Law and the Constitution of the Family Have to Change?

The law and constitution of the family has been targeted for transformation in recent years, leading most notably to the Supreme Court's decision in Obergefell v. Hodges, mandating same-sex marriage as a matter of constitutional law. In this essay I undertake a thought experiment, asking how advocates of traditional marriage ought to want the law of marriage to change in light of this development. I begin by reviewing the argument for legal change sketched by Aquinas and then applying it to developments concerning marriage in modern America. Next I sketch the natural-law argument on behalf of traditional marriage. Finally, I turn to the case of Michael H. v. Gerald D., in which the Supreme Court upheld a statutory reiteration of the common-law presumption that the husband of the mother is the father of her child, against a challenge from the biological father, suggesting that this case, long admired by conservatives, needs to be reconsidered—and that the dissent in the recent Indian Adoption Case recognizing a constitutional right of biological parents might prove useful to the restoration of marriage law.     

Culture and Legal Policy Punctuation in the Supreme Court's Gender Discrimination Cases

For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court's equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer an adaptation of the jurisprudential regimes framework as a device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cut point of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

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.     

"The Defendant Has Seemed to Live a Charmed Life": Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence

On March 7, 1887, the Supreme Court of the United States decided Fred Hopt's fourth appeal to that Court. The Utah Territory murderer's conviction had been reversed three times over seven years-his "charmed life"-but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt's four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor's evidence of cause of death was beyond the scope of his expertise; that the trial judge's "reasonable doubt" jury instruction was inadequate; and that the prosecutor's reference to the "many times the case had been before the courts" was prejudicial. Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary. Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900. However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had four jury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States. He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

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.     

Explaining Supreme Court Policymaking in Civil Rights: The Influence of the Solicitor General, 1953–2002

What factors explain Supreme Court policymaking in civil rights cases? Despite the importance of this question of law and policy, few empirical studies have explored the problem on the area of racial and ethnic discrimination. This study seeks to fill this gap by assessing the importance of the solicitor general, the federal government's representative before the Supreme Court, as a litigant and in the filings of amicus curiae briefs. The findings confirm that the solicitor general's presence in civil rights cases does matter when explaining whether the Supreme Court reaches a liberal or conservative outcome. This research demonstrates the significance of executive‐judicial interaction in explaining Supreme Court policymaking in civil rights cases.     

The Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

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.     

Back in their proper place:: racial gerrymandering in Georgia

During this decade the United States Supreme Court has made significant rulings on constitutional challenges to representative districts purposefully drawn to empower minorities as district majorities. Arguments have set the Voting Rights Act against the Fourteenth Amendment's goal of a colorblind society. The court has generally struck down the aggressive drawing of majority–minority districts, finding them racial classifications not narrowly tailored to achieve compelling state interests. This study analyzes and evaluates these legal developments, principally through a focus upon the most recent litigation in Georgia. My thesis — that the Court has muddled the jurisprudence of representation, voting rights and racial equality because of its inability to treat politics and geography with consistency, depth, rigor and judgment — will be explored in connection with five questions. First, can compact and regular shape provide the courts with a concept to properly assess the legal issues without involving the courts in intractable and injudicious political questions? Second, does a bizarrely shaped district “broadcast” such an invidious racial message as to constitute a “stigmatic harm” which provides plaintiffs with standing to challenge the district? Third, is a district's bizarre shape critical evidence of the districters' intent to discriminate? Fourth, is “community of interest” a significantly richer criterion than shape for evaluating racial gerrymandering claims and defenses? Fifth, what is the proper legal role of traditional criteria of territorial representation as the benchmarks for distinguishing permissible from impermissible race-conscious districting?     

The “Science” of Policy Development During Administrative Rulemaking

The legitimacy of government agencies rests in part on the premise that public administrators use scientific evidence to make policy decisions. Yet, what happens when there is no consensus in the scientific evidence—i.e., when the science is in conflict? I theorize that scientific conflict yields greater policy change during administrative policymaking. I assess this claim using data from the U.S. Food and Drug Administration (FDA). I identify policy change—what I refer to as “policy development” in this article—between the FDA's draft and final rules with a novel text analysis measure of shifts in regulatory restrictions. I then go on to find that more policy development does occur with scientific conflict. Moreover, using corresponding survey data, I uncover suggestive evidence that one beneficiary of such conflict may be participating interest groups. Groups lobby harder—and attempt to change more of the rule—during conflict, while an in‐survey experiment provides evidence of increased interest group influence on rule content when scientific conflict is high.     

One Hundred and Twenty-Five Years after Slaughterhouse: Where's the Beef?

You never know. Historical events intended for one purpose sometimes result in the unintended, and American history is far from immune to this tendency. Thus the Civil War—first considered by Lincoln as nothing more than an attempt to prevent Southern secession—ultimately went far beyond an effort to preserve the Union, far beyond ending African-American slavery, far beyond even ensuring continued western expansion. By 1866, the war had wrought changes in the relationship between the federal government and the states, the federal government and its people, as well as the states and their citizenry. Although they may well have been unintended and their extent unclear, these transformations doomed continuance of the Union as it had been—producing instead a new connection between the American people and their legal order that is still evolving.¹ One manifestation of such change was the Fourteenth Amendment adopted by Congress in 1866. Ratified by the states as part of the Constitution in 1868, five years later the Supreme Court first considered its meaning and scope; and thereby hangs a story rich in irony.     

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.     

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.     

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.”     

A Look Back at the Dred Scott Decision

Thank you for inviting me to deliver the 2009 Annual Lecture of the Supreme Court Historical Society. I am a great admirer of the Society's commitment to preserving the history of the Supreme Court and to increasing the public's awareness of the Court's contributions to our nation's history.     

Policy Design and Implementation Effectiveness

This study examines the successful implementation of a major structural change in a county criminal court, an institution particularly resistant to change. Implementation effectiveness is mainly attributed to policy design factors, especially the establishment by "lop" slate Supreme Court officials of an institutional mechanism to implement their selected policy goals. Composed of hey county court participants at the "bottom," the mechanism facilitated lateral coordination among divergent interests by providing a forum for bargaining and the resolution of disputes. The bargaining entailed the distribution of benefits, as well as the externalization and redistribution of costs, arising from the structural changes.     

Lincoln and Chief Justice Taney

Abraham Lincoln and Chief Justice Roger B. Taney may have met only twice—in 1849, when Lincoln made an oral argument before the Supreme Court, and in 1861, when Chief Justice Taney administered the presidential oath of office to Lincoln. The two men's roles in American history are inextricably bound nonetheless, as I will attempt to demonstrate in this essay.     

Democracy in Justice Kennedy's America: Reading Obergefell with Tocqueville

Justice Anthony Kennedy cites Alexis de Tocqueville in support of the majority opinion in Obergefell v. Hodges. But Kennedy's citation leaves much out of Tocqueville's original text. Looking at what Kennedy erases in his quotation of Tocqueville indicates some of the broader cultural and historic erasures that are present in the Obergefell decision (and in the Supreme Court's latter-day treatment of marriage and the family in general). Standing Obergefell next to Tocqueville yields suggestive possibilities for evaluating the evolution of recent Supreme Court jurisprudence—and recent American political thought, more generally speaking—on questions of marriage and family. Specifically, reading Obergefell with Tocqueville reveals the intellectual and political weakness of the contemporary Supreme Court.