Federal Judiciary

Academic Round-up

By Akin Gump Supreme Court Practice Group

Thomas K. Clancy (University of Mississippi School of Law) has posted “The Irrelevancy of the Fourth Amendment on the Roberts Court” on SSRN, see here.  My friend and c0-blogger, Orin Kerr, has proposed a few theories on why the Supreme Court now has fewer Fourth Amendment cases on its plenary docket, see here, including the possibility that the more pro-defendant members of the Court are casting more votes for defensive denials at the certiorari stage.  For his part, Professor Clancy proposes a few theories of his own.  First, he hypothesizes that the drop in Fourth Amendment cases may be due to Chief Justice Rehnquist’s interest in such cases, but the absence of widespread interest in the area by current members of the Court.   Second, he states that the Court’s decision in Pearson v. Callahan, 129 S. Ct. 808 (2009), makes merits review of Fourth Amendment cases less likely because fewer such cases will be adjudicated on the merits of the constitutional question.  (Of course, the latter theory does not explain why Fourth Amendment cases were quite common prior to Saucier v. Katz, 533 U.S. 194 (2001).)  And third, Herring v. United States, 129 S. Ct. 695 (2009), creates a less robust exclusionary rule.  As a result, Professor Clancy opines that the Fourth Amendment will remain ?the most commonly implicated aspect of the Constitution, [but it] may lose its status as the most frequently litigated part.?

William G. Ross (Samford University-Cumberland School of Law) has posted “The Presidential Aspirations of the U.S. Supreme Court Justices: A History and a Cautionary Warning” on SSRN, see here.  Professor Ross has written an article with a predominantly historical bent that is very timely given the debate about whether the current vacancy on the Supreme Court should be filled by a non-judge.  In this fascinating article, Professor Ross recounts the history of Supreme Court Justices with presidential aspirations, such as Charles Evan Hughes, William Douglas, and John McLean.  Some ran for office repeatedly like John McLean, and others such as William Douglas were only rumored to have presidential aspirations.  The author notes that political campaigns by Justices were quite common in the nineteenth and early twentieth centuries, in part because many appointees to the Court during the period were heavily involved in politics before starting their judicial careers.  Although the rich history is the most interesting aspect of this Article, the last ten or so pages highlight the hazards of having presidential ambitions while serving on the Court.  Among other things, political ambitions can affect a Justice’s votes on the Court, both at the certiorari and merits stages, and may distract Justices from carrying out their judicial duties.  Ultimately, the author suggests that Presidents should avoid nominating individuals to the Court with political backgrounds because those types of nominees were the ones most likely to have enmeshed themselves in politics over the course of history.  With names like Janet Napolitano and Jennifer Granholm in the mix for the current vacancy on the Court, this is an Article well worth reading.

Full post as published by SCOTUSBLOG on April 25, 2010 (boomark / email).