News and information useful to Cleveland State College of Law students, faculty and staff.

This Just In: Persuading the Supreme Court: The Significance of Briefs in Judicial Decision-Making

Each year there are about one thousand amicus briefs submitted to the U.S. Supreme Court. These briefs seek to communicate information to the justices on how they should decide a given case. Usually the court receives many more amicus briefs than party briefs for a given case.

In Persuading the Supreme Court: The Significance of Briefs in Judicial Decision-Making, authors Morgan L.W. Hazelton and Rachael K. Hinkle looked at more than 25,000 party and amicus briefs filed between 1984 and 2015. They also reviewed the court opinions and conducted interviews with Court clerks and attorneys who prepared and argued briefs before the Court. The authors find that the resource advantage enjoyed by some parties likely stems from both the ability of their experienced attorneys to craft excellent briefs and their reputations with the justices. The analyses also reveal that information operates differently in terms of influencing who wins and what policy is announced.

Don’t forget about the law library’s database U.S. Supreme Court Records and Briefs, which is wonderful for historical research on Supreme Court decisions. The database covers court records and briefs from 1832-1978. Note: the database does not contain the case opinions, which are available many other places.

This Just In: The Great Dissenter

With the start of the Supreme Court term this week, what better time to look into Court history? In The Great Dissenter, author Peter S. Canellos delves into the life and times of Justice John Marshall Harlan on the bench during Reconstruction and Gilded Age America.

John Marshall Harlan’s dissent in Plessy V. Ferguson helped end segregation decades after his death and as such he is a notable American figure worthy of historical biography. Thurgood Marshall called Harlan’s Plessy dissent his “Bible” and used it as his legal roadmap to overturning segregation. Harlan’s words have also been credited with laying the legal foundations for jurisprudence during the New Deal and Civil Rights eras by defending of the rights of African-Americans, immigrant laborers, and people in distant lands occupied by the U.S.

Will the Insular Cases Be the Next to Be Overturned by Supreme Court?

The Insular Cases were a series of Supreme Court decisions that decreed limits to the rights of U.S. citizens in territories based largely on their race.  The cases arose from the U.S. acquisition of new territories from Spain after the Spanish-American War and the subsequent demands of residents of those places for equal rights.  The Supreme Court held that full constitutional protection of rights does not automatically extend to all places under American control only those places fully incorporated (that is deemed on the path to statehood by the U.S. government).

Currently the Supreme Court will consider whether to hear a case on this issue in Fitisemanu v. United States. This case is brought by U.S. nationals from American Samoa who do not have full U.S. citizenship.  American Samoans are U.S. nationals but not citizens, preventing them from voting in state and federal elections even when they become residents of a state. Natives of other territories are U.S. citizens who can exercise all constitutional rights provided they first move to a state.

This comes on the heels of the case decided by the Court in May of this year: United States v. Vaello-Madero in which both Justices Gorsuch and Sotomayor opined against the main ruling of the Insular Cases.

Now the American Bar Association’s (ABA) House of Delegates has passed Resolution 404 calling for equal rights for the 3.6 million residents of U.S. territories and rejecting the Insular Cases.

So now legal watchers, researchers, attorneys etc. have to wait and see what will happen next regarding the Insular Cases and rights for people in the U.S. territories.

The Making of Modern Law Databases: Landmark Records and Briefs from the U.S. Supreme Court and Courts of Appeals

The law library has two useful databases for researchers from Gale: U.S. Supreme Court Records and Briefs and Landmark Records and Briefs of the U.S. Courts of Appeals

U.S. Supreme Court Records and Briefs contains briefs and related documents from Supreme Court cases between 1832 and 1978. Previously, many of these briefs were not available through any of the library’s other legal databases, so this is a very useful for anyone doing research on older Supreme Court cases.

Landmark Records and Briefs of the U.S. Courts of Appeals contains materials from the first ninety years of the federal appellate court system’s history, and contains legal documents long unavailable or difficult to access by researchers.  The coverage is 1891-1980.

These sources are available off campus by using your CSU ID and PIN.

Is the U.S. Supreme Court Too Powerful?

A recent New York Times article (via Yahoo) titled A Powerful Court asks the question if the U.S. Supreme Court is too powerful and should the justices’ time on the bench be limited with a term of years or a specific retirement age.  U.S. Supreme Court justices have lifetime appointments to the bench.  However, many other countries including many common law countries have some limitation on how long a judge may serve.  High courts in such countries as Australia, New Zealand, United Kingdom and Israel must retire at 70. Federal judges in Canada retire at age 75. The Philippines, a former U.S. territory. requires judges to retire at 70. Many U.S. state judiciaries have similar limits.

To assist researchers in finding out more on the topic, we have compiled a short non-exhaustive bibliography:

  1. Retiring Life Tenure: On Term Limits and Regular Appointments at the Supreme Court, by Tyler Cooper, Amanda Dworkin, Dylan Hosmer-Quint, and Amanda Pescovitz, 42 Cardozo L. Rev. 2763 (2021).
  2. Age and Tenure of the Justices and Productivity of the US Supreme Court: Are Term Limits Necessary?, by Joshua C. Teitelbaum, 34 Fla. St. U. L. Rev. 161 (2006).
  3. The Unintended Consequences of Term Limits for Justices of the U.S. Supreme Court: Lessons From a Comparative Study of the Indian Supreme Court, by Sital Kalantry, 30 Tul. J. Int’l & Comp. L. 43 (2022).
  4. The Policy Consequences of Term Limits on the U.S. Supreme Court, by Ryan C. Black and Amanda C. Bryan, 42 Ohio N.U. L. Rev. 821 (2016).
  5. Ghosts of the Supreme Court: A Historical and Jurisdictional Analysis Justifying a Constitutional Amendment for Compulsory Medical Retirement, by Kristen E. Hahn, 54 Ind. L. Rev. 247 (2021).
  6. Designing Supreme Court Term Limits, by Shelby A. Mars, 13 Seton Hall Circuit Rev. 203 (2017).
  7. Term Limits for the Supreme Court: Life Tenure Reconsidered, by James Lindgren, 29 Harv. J.L. & Pub. Pol’y 769 (2006).
  8. Why Justices Retire, by David Yalof, 88 Judicature 42 (2004).
  9. Reforming the Court : Term Limits for Supreme Court Justices, edited by Roger C. Cramton and Paul D. Carrington, (2006) (link to catalog).
  10. Presidential Commission on the Supreme Court of The United States, Final Report (2021).