Academic Round-Up

This week, I am back to posting primarily legal scholarship about the Supreme Court and the cases decided this past Term. As I think I have noted before, I sometimes post papers with which I disagree because I think they will be of interest to our readership. I rarely note disagreement in the academic round-up (often because of space limitations and the format), but do note such disagreement in longer posts that I write about individual pieces or cases.

Michael Dorf (Columbia Law School) has a new essay posted on the Harvard Law and Policy website, see here, which asks the following question: “Does Federal Executive Branch Experience Explain Why Some Republican Justices ‘Evolve’ and Others Don’t?” The piece is quite short, but enlightening. As Dorf points out, all of the Justices appointed by Republicans without executive branch experience in recent years have turned out to be more liberal than those with such experience. In the former category are Justices Blackmun, Powell, Stevens, O’Connor, Kennedy and Souter. In the latter category are Chief Justices Burger, Rehnquist, and Roberts, as well as Justices Scalia, Thomas and Alito. I wonder whether the hypothesis holds true for the circuit and district courts as well? My hypothesis is that it would not, but it is an area that warrants further empirical examination.

Virginia Law Review‘s In Brief has posted a new case comment by Justin Weinstein-Tull (Yale Law School student) that examines the Court’s recent decision in Gonzales v. Carhart, see here. Although Weinstein-Tull laments the Court’s result in Gonzales, he notes that in potentially expanding the scope of Congressional power, the Court’s result “is promising for future civil rights legislation.”

Scott Baker (University of North Carolina Law School) has posted a new article on SSRN entitled “Should We Pay Federal Circuit Judges More?,” see here. As Baker notes, Chief Justice Roberts has stated that the most difficult issue facing the federal judiciary is low judicial salaries. The author finds that low judicial salaries do not impact votes in controversial cases, the speed of case disposition, or citation practices to outside circuit authority. The article does find, however, that lower judicial salaries do lead to slightly fewer dissents and slightly stronger opinions, as measured by out of circuit citations. The author essentially concludes that judicial pay is largely irrelevant to the functioning of the circuit courts. I query whether the same would be true for Supreme Court Justices?