Federal Judiciary

Academic Round-Up

By Akin Gump Supreme Court Practice Group

It is good to be back writing on the blog. I hope to post some thoughts about some of the cases from the past Term in the next several weeks, including a belated analysis of an under-discussed aspect of the Boumediene opinion. In the meantime, here is a sampling of some of the best articles about the Supreme Court from the past couple of months:

Michael W. Schwartz (Wachtell, Lipton, Rosen & Katz) wrote a very interesting and highly readable piece for the Policy Review entitled “Our Fractured Supreme Court: The Benefit of Unanimity and the Vanity of Dissent,” see here. The piece discusses the practice of dissenting from the Court’s opinions (both historically and institutionally) in the broader context of Chief Justice Roberts’s expressed preference for unanimity in the Court’s decisions. I find this piece fascinating because of the interesting ideas that it raises, some of which I have examined in my own scholarship: that the increasing number of dissents and concurrences may be a key factor in the Court’s decreasing plenary docket and that the rise in the number of law clerks after the early 1970s (from 2 to 4) may have contributed to the increasing number of dissents from members of the Court. There are some slight factual inaccuracies in the piece: for example, Congress has not eliminated all (nearly all to be sure) of the Court’s mandatory appellate jurisdiction and the Judge’s Bill left much of the Court’s mandatory appellate jurisdiction intact, but the inaccuracies do not take away from the thoughtfulness of the piece.

The May 2008 issue of the Yale Law Journal contained a nice essay by Daniel Richman (Columbia Law School) entitled “Federal Sentencing in 2007: The Supreme Court Holds–The Center Doesn’t,” see here. For those interested in recent developments surrounding federal sentencing, this is worth a read. Although the main thrust of the paper is on the Executive Branch side of sentencing–that is, the relationship between “main Justice” and U.S. Attorney’s Offices–Part IV of the paper does contain an extensive discussion of the potential impact of the Gall, Kimbrough, and Rita decisions on federal sentencing policy. One interesting aspect of the trio of sentencing decisions from last Term is that the jury, which was the basis for this whole line of cases, has “pretty much fallen out of the picture” according to Professor Richman. Although a number of articles have been written over the past three or four years assessing the Court’s doctrinal turn in these Sixth Amendment cases, I hope that we will begin to see some empirical papers that assess the impact of the now-discretionary nature of federal sentencing if and when the relevant data becomes available.

Full post as published by SCOTUSBLOG on July 18, 2008 (boomark / email).