Courts

  • September 19, 2014

    by Rebekah DeHaven

    Over the August recess President Obama announced several new judicial nominations:

    John Robert Blakey, to the Northern District of Illinois;

    Jorge Luis Alonso, to the Northern District of Illinois;

    Jeanne E. Davidson, to the U.S. Court of International Trade; and

    Haywood Stirling Gilliam, to the Northern District of California.

    On Monday, September 8 the Senate returned from recess and the past two weeks saw a flurry of judicial nominations activity. On Monday, September 8, the Senate voted 97-0 to confirm Jill Pryor to the Eleventh Circuit (Ga.). Pryor was a partner at Bondurant, Mixson & Elmore LLP in Atlanta. The seat she filled had been vacant since August of 2010. A New York Times article discussed President Obama’s legacy of having re-shaped the appellate bench.

  • August 15, 2013

    by David Lyle

    This week retired U.S. Supreme Court Justice Sandra Day O’Connor said in a speech that the need for judges to raise money to win contested elections presents one of the greatest threats to a fair and impartial judiciary, The Atlanta Journal-Constitution reported. The validity of Justice O’Connor’s concerns is supported by the data and analysis in Justice at Risk, a report recently published by ACS on campaign contributions to state supreme court justices and state court decision making.

    In the speech, Justice O’Connor said:

    Judicial elections powered by money and special interests create the impression, rightly or wrongly, that judges are accountable to money and special interests, not the law[.]  … Our judges should never be beholden to any constituency.

    In my view, that need to raise money to compete in those elections presents one of the greatest threats to fair courts and that threat is increasing[.]

    In Justice at Risk, Professor Joanna Shepherd of Emory University School of Law uses sophisticated empirical research techniques to analyze 2,345 business-related state supreme court published opinions from all 50 states and over 200,000 contributions to sitting justices and concludes that:

    • There is a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.;
    • The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court;
    • A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time; and
    • The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan election systems; there is no statistically significant relationship between money and voting in retention election systems.

    More than 90 percent of the legal cases in the United States are handled by state courts, and 89 percent of the states require judges to face the voters in some type of election.  Dozens of states require their supreme court justices to campaign and raise many in just the sort of contested elections (whether partisan or nonpartisan) that both Justice O’Connor and Justice at Risk suggest can be so problematic.

    Justice O’Connor supports merit selection systems, in which bipartisan nominating commissions to put slates of candidates to the governor, who picks from that list. Voters then periodically vote on whether to retain these judges (without opposition from another candidate). As noted above, In Justice at Risk, Professor Shepherd found that there is no statistical relationship between contribution in retention elections and decisions by justices.

    To learn more about this important issue, please visit ACS’s State Courts Resource Page.

  • January 12, 2011
    The fevered effort to bar judges from citing foreign or international law is misguided, uninformed and a threat to democracy, authors of a new ACS Issue Brief assert.

    In "Oklahoma State Question 755 and An Analysis of Anti-International Law Initiatives," (pdf) law professors Martha F. Davis and Johanna Kalb write that Congress and state lawmakers are increasingly considering measures to prohibit judges from citing international law in unnecessary attempts apparently rooted in "a perceived need to defend Christian values, concern about state/federal sovereignty, fear of judicial activism, and belief in American exceptionalism." The authors cite the recent ballot measure called Question 755 approved in the fall by Oklahoma voters that states, "The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law." Apparently in Oklahoma some lawmakers and religious right advocacy groups were concerned about a "takeover of Oklahoma by Islamic extremists who want to undo America from inside out." (The measure is currently facing a constitutional challenge in court.)

    Similar measures to bar citation or consideration of foriegn authorities have also been advanced in Congress and other state legislatures, such as Arizona, Iowa and South Carolina.  

    But Davis, a law professor at Northeastern University Law School, and Kalb, a law professor at Loyola University College of Law, write that the concerns motivating such measures are unfounded and could lead to laws that violate the U.S. Constitution, and seriously disrupt the nation's international commitments.

    The Constitution, the authors note for example, states that "treaties are the Supreme Law of the Land," and that state constitutions "almost always explicitly or implicitly acknowledge the binding nature of ratified treaties."

    "The prominence," the authors continue, "accorded to treaties in both the Federal and state constitutions reflects the understanding that ‘if the United States [is] to bargain effectively, the national government must not only have the power to conclude treaties but to compel states to observe them.'"

    And just one state's "refusal to permit its courts to enforce the United States' international obligations puts the entire nation's credibility at risk, with potentially devastating results for the country's ability to protect its citizens and businesses," the authors write. "On a wide range of matters, from the detection and prevention of terrorism to the regulation of trade and monetary policy to the protection of the environment, the success of the United States' efforts depends upon its ability to follow through on its international commitments."

    Moreover, the authors note a long tradition of American courts citing international and foreign authorities.

    "In fact," they write, "citation of international and foreign law is a venerable practice in the U.S. judicial system, dating back to the founding period. A majority of the U.S. Supreme Court has continued this practice in recent years, sometimes in cases that concern hotly debated issues of law and public policy."

    Even Supreme Court Justice Antonin Scalia, who has groused about his colleagues' use of foreign authorities in their decisions, has taken the approach. As noted by Scott Lemieux at the blog Lawyers, Guns and Money, Scalia recently cited a House of Lords opinion in a dissent. "Seriously," Lemieux writes, "there is of course nothing the slightest bit objectionable about citing a foreign court as part of a larger argument about American law. This whole 'citing foreign law' controversy, which Scalia has at times attempted to stoke, is just culture war rube-running, invoked solely to argue against outcomes people disagree with for independent reasons."

  • August 3, 2009

    Editor's Note: This post was updated, Aug. 4, 2009, to include a link to the ABA's video of Justice David Souter's speech. 

    Former Supreme Court Justice David Souter, during the recent annual ABA gathering, urged attendees to become more engaged in bolstering civic education. Souter, reported Lynne Marek for The National Law Journal, expressed frustration with surveys showing that large numbers of Americans cannot identify the three branches of government.

    Souter said:

    I'm here to speak this evening because civic education in the United States is not good enough, and we have to do something about it. I want to speak about the risk to the constitutional government when a substantial portion of the American populace simply fails to gain that understanding. In particular, I'll ask you to consider the danger to judicial independence when people have no conception of how the judiciary fits within the constitutional scheme.

    Without some idea of separation of powers, limitations of power and the need to enforce those limits, the idea of judicial independence must be practically meaningless.

    A recent ACSblog symposium, "Souter's Clerks Speak," featured extensive analysis of the former justice's high court career.