The Roberts Court and Police Practices: The Impact of Chief Justice Roberts and Justice Alito in Police Practices Cases

In police practices cases, the Supreme Court decides issues that determine when the law enforcement interest in solving crimes must give way to the interest of individuals to be left alone by the government. The replacement of Chief Justice Rehnquist with John Roberts and Justice Sandra Day O’Connor with Samuel Alito has now been in place for more than four terms. The time is appropriate to assess the likely impact of these two new members of the Court on police practices cases. This article examines that question by analyzing both the police practices opinions written by Roberts and Alito while they served on U.S. Courts of Appeals and their opinions while on the Supreme Court through the 2008-09 term. The conclusion is that the previous pattern of the police prevailing in the vast majority of these cases is unlikely to change. In addition, there is some evidence to suggest that Chief Justice Roberts is aligning himself closely with Justice Scalia in these cases and may be setting the stage for a significant modification or even elimination of the exclusionary rule.     

THE SUPREME COURT OF JUSTICE OF THE REPUBLIC OF AUSTRIA

The aim of this article is to give an overview of the tasks and the function of the Supreme Court of Justice in interaction with the other two “Highest Courts” of the Republic of Austria on the one hand, and the European Court of Human Rights as well as the Court of Justice of the European Union on the other hand. For this purpose introductory remarks will examine the Austrian understanding of the judiciary as a state power and judicial independence. The closing part of the article will particularly look into the role of the Supreme Court as highest instance in criminal matters.     

THE FEDERAL JUDICIAL SYSTEM

Since Chief Justice Taft's highly activist tenure, many people have looked to the Supreme Court for leadership in efforts to modernize federal judicial administration. This article reviews the role of the Chief Justice of the United States in federal judicial administration. as well as organizational and procedural improvements in court management at all three tiers of the federal court system, as seen by one trained in public administration Although improvement is apparent. other needed steps include less emphasis on the number of judgeships and more careful long-range planning and experimentation with new techniques     

The Role of the United States Supreme Court in Shaping Federal Drug Policy

Through judicial review, the United States Supreme Court has played a pivotal role in deciding and/or interpreting the constitutionality of legislation. Since the passage of the Pure, Food and Drug Act in 1906, the Supreme Court’s role has been integral in formulating drug policy. In some instances, the Court’s decisions have limited the authority of the federal government, while in others have greatly expanded this authority. As a direct result of the decision-making of the Supreme Court, limitations have periodically been placed on Congress to regulate controlled substances. Many people, who were perceived as medical patients, became criminal drug users. The Court has restricted and later approved of the use of drugs during the free exercise of religion. Lastly, the Court has continually reinforced the supremacy of the federal government over the states, in turn limiting the ability of the states to consider marijuana legislative reform.     

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation‐of‐powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.     

WILLIAM H. REHNQUIST AWARD FOR JUDICIAL EXCELLENCE ADDRESS

The William H. Rehnquist Award is one of the most celebrated judicial honors in the country. It is given each year to a state court judge who demonstrates the “highest level of judicial excellence, integrity, fairness, and professional ethics.” The 2008 recipient, Jonathan Lippman, was recently appointed and confirmed as Chief Judge of the State of New York. Chief Judge Lippman was previously the Presiding Justice of the Appellate Division of the First Judicial Department of the New York State Supreme Court. He was appointed New York's Chief Administrative Judge by Chief Judge Judith S. Kaye and served from January 1996 to May 2007 and was responsible for the operation of a court system with a $2.4 billion budget, 1300 state‐paid judges, 2300 town and village judges, and 16,000 nonjudicial personnel. Among his numerous professional activities, Chief Judge Lippman served as president of the Conference of State Court Administrators from 2005 to 2006 and was the vice‐chair of the National Center for State Courts from 2005 to 2006, where he was a member of the Board of Directors from 2003 to 2007. During his tenure, Chief Judge Lippman has been the recipient of numerous awards and recognitions, including the 2006 Fund For Modern Courts Cyrus R. Vance Tribute for Vision, Integrity and Dedication to the Fair Administration of Justice Personified by Cyrus R. Vance (November 27, 2006); the New York County Lawyers’ Association Conspicuous Service Award in Recognition of Many Years of Outstanding Public Service (September 28, 2006); and the Award for Excellence in Public Service of the New York State Bar Association's Committee on Attorneys in Public Service (January 24, 2006). Chief Judge Lippman received a Bachelor of Arts in Government and International Relations from New York University, Washington Square College, where he graduated cum laude in 1965. He also received his J.D. from New York University in 1968. Below is the speech he delivered after accepting the William H. Rehnquist Award from U.S. Supreme Court Chief Justice John G. Roberts.     

Judicial protection of fundamental rights in the transition from the world of atoms to the word of bits: The case of freedom of speech

This article underlines the role of Courts in protecting fundamental rights in the atomic and the digital dimension. The main aim of this work is to show how the coming of the Internet has affected the exercise and the judicial protection of freedom of expression in a comparative perspective. In order to answer this research question, this study will focus on the role of Courts as ‘playmakers’ in interpreting and solving issues deriving from interconnected legal regimes affecting the protection of fundamental rights and, especially, free speech. More specifically, the comparative focus will be on the decisions of the European Court of Justice, the European Court of Human Right and the US Supreme Court.     

伦奎斯特人身保护法律思想的保守主义构造：以穷尽州法救济原则为中心的刑事判例研究

美国联邦法院人身保护是对州法院刑事被告提供的基本性申诉权利。伦奎斯特在人身保护法律制度的发展过程中起到了重要作用。前首席大法官坚持人身保护的保守主义法律路线,严格把握人身保护判例系统中的穷尽州法救济原则,强调社会稳定在犯罪狂潮中举步维艰,必须积极发挥各州法院审理刑事案件的地方性优势,防止联邦法院越俎代庖、顾此失彼。     

Considering the Meaning of Wisconsin Right to Life for the Corporate Free-Speech Movement

The test for determining the “functional equivalency of express advocacy” established by Chief Justice John Roberts in 2007 could well signal a propitious turning point for the corporate free-speech movement—efforts to develop First Amendment protection for corporate political media spending. The test creates the potential to undermine the doctrine the Supreme Court of the United States constructed in support of more than a century of legislative judgment seeking to wall off the corrupting force of such spending from candidate elections. This article assesses that potential through analysis of Federal Election Commission v. Wisconsin Right to Life, Inc., in which the Chief Justice established that test. His test attracted sharp criticism from so many other justices that the case may offer less than clear guidance for lower courts on its rationale. But the fact that there can be no confusion as to its holding would seem to offer reason for optimism to corporate interests in similar cases.     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.     

Dimensions of criminal justice policy: The Supreme Court,the Fourth Amendment and the trial court system

A full understanding of the role of the U.S. Supreme Court’s supervisory authority over the criminal justice process must recognize that the political and social environment affects local responses to Supreme Court directives. This paper reviews the development of Supreme Court Fourth Amendment decisions in which criminal court deliver justice. The authors suggest that future treatment of problems in Supreme Court’s supervisory role and the prospects of demands for Reform being generated from the larger political community.     

With the fourth sentence of the First Chamber on wrongful birth: is it possible to start talking about "jurisprudence"?]

Chamber number 1 of the Spanish Supreme Court of Justice has announced its fourth wrongful birth case decision dated December 18, 2003. The issue is whether we can state that with these four rulings there is a genuine law of precedent, that is, reiterated doctrine of the Supreme Court of Justice on this matter (Article 1.6 of the Civil Code).     

Preserving the Law’s Coherence: Citizens United v. FEC and Stare Decisis

In addition to striking down the portions of the Bipartisan Campaign Reform Act that limited the amount of money corporations and unions could spend on independent expenditures, Citizens United v. FEC overturned two decisions of the Supreme Court of the United States, an action that stands in contrast to the principle of stare decisis. This article analyzes the discussions of stare decisis in the various Citizens United opinions and compares these discussions to existing scholarly debate on the proper role of stare decisis in constitutional law. It also examines citations and discussions of Citizens United in state supreme court and federal circuit court of appeals cases to analyze how the justices’ discussions of stare decisis in Citizens United have influenced lower courts. The article concludes that the Citizens United opinions that discussed stare decisis — particularly Justice Anthony Kennedy's majority opinion and Chief Justice John Roberts’ concurrence — are highly problematic for a number of reasons. The applications of stare decisis in the opinions were also flawed. Citizens United has thus made it even easier for lower courts to abandon stare decisis and overturn precedent.     

Mutual Bonds: Media Frames and the Israeli High Court of Justice

This study examines the coverage of the Supreme Court of Israel functioning as the High Court of Justice (HCJ) in the popular and elite press over a period marked by growing activism of the Israeli Supreme Court and an increasingly adversarial and critical media. Our results show that more prominent coverage of the HCJ over time, especially in the elite press, accentuates the salience of the Supreme Court in public life. In addition, the topics, the stages of the HCJ proceedings, the petitioners, and the outcome of the cases covered by the press, as well as the generally uncritical reporting of the Court decisions help create the frame of an autonomous, powerful Court that frequently opposes and restrains the government. We suggest that this pattern of media coverage of the HCJ benefits both the Court and the media: it reinforces the image of the media as a critical watchdog of the government, while at the same time it legitimates the Court's expansion of power and strengthens its image as an apolitical and independent institution.     

NEXT STEPS IN THE EVOLUTION OF ANTITRUST LAW: WHAT TO EXPECT FROM THE ROBERTS COURT

Under the leadership of Chief Justice John G. Roberts, Jr.,the Supreme Court has demonstrated a willingness to cast asidethe Court's prior antitrust decisions. The qualified per serule applicable to tying surely will not survive much longer,but what else might be in store is more speculative. This essayidentifies four decisions relating to competitor collaborationin which the Court's prior application of the per se rule doesnot comport with its modern decisions. In two of the cases,the conduct likely would be found lawful today; while in theother two, the conduct most likely still would be condemnedbut only after an abbreviated application of the rule of reason.This essay also identifies three legal doctrines ready for retirement.They are the absolute requirement of market delineation as apredicate for merger analysis, the outmoded approach to marketdelineation of Brown Shoe, and the unhelpful formulation ofthe monopolization offense in Grinnell.     

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.     

Judicial Review of Politics: The Israeli Case

In the tradition of studies questioning the impact of celebrated court rulings, this article discusses the effectiveness of the judicial review of politics conducted by the Israeli Supreme Court. The Israeli Supreme Court is generally viewed as a highly influential, almost omnipotent body. During the last two decades, the Court has intervened repeatedly in the so–called political domain, thereby progressively eroding the scope of realms considered non–justiciable. It has ventured to enter domains of 'pure' political power to review the legality of political agreements, political appointments (appointments of political allies to public positions), and political allocations (government funding to organizations affiliated with its political supporters). The prevalent perception is that these developments had a significant impact on Israeli political life. The present article challenges this view and argues that, on closer scrutiny, the influence of the Court on many of the issues reviewed here is negligible. First, many of the doctrines developed by the Court in order to review political measures proved ineffective. Usually, when the Supreme Court (acting as a High Court of Justice) engages in judicial review, it lacks the evidence needed in order to decide that administrative decisions on public appointments or public funding should be abolished because they were based on political or self–serving considerations. Second, the norms mandated by the Court hardly influence politicians' decisions in everyday life, and are applied only in contested cases. The reasons for this situation are not only legal but also socio–political. Large sections of current Israeli society support interest–group politics and do not accept the values that inspire the Court.     

Shifting the Metaphor: Examining Discursive Influences on the Supreme Court's Use of the Marketplace Metaphor in Twenty-First-Century Free Expression Cases

Justices on the Supreme Court of the United States have employed the marketplace-of-ideas metaphor to communicate how they understand freedom of expression for nearly a century. The meanings behind metaphors, however, are not static. This article examines whether justices’ references to the metaphor in twenty-first-century cases remain primarily tied to the original meaning – one related to the Enlightenment ideas at the heart of Justice Oliver Wendell Holmes's first use of the metaphor in 1919 – or if the meaning has shifted to represent more discourse-based understandings of communication in democratic society, such as those put forth by John Dewey and Jürgen Habermas. This article, through an analysis of twenty-first century Supreme Court decisions that discussed the marketplace metaphor, identifies evidence of a shift in the Court's understanding of the foundational theoretical concepts behind the meaning of the metaphor.     

Morgentaler v. The Queen in the Supreme Court of Canada.

In Morgentaler v. R., the Supreme Court of Canada struck down the abortion provisions in the Criminal Code. In a five to two split, a majority of the Supreme Court judges found that section 251 offended a pregnant woman's constitutionally protected right not to be deprived of her "life, liberty, and security of the person." Sheilah Martin reviews the three majority judgments and focuses on the decision written by Madame Justice Wilson. She believes that Madame Justice Wilson's opinion merits special attention in several regards: her conclusions on the constitutional rights of pregnant women; her recognition and validation of women's perspectives on abortion; and her approach to balancing women's interests in reproductive self-determination against the state's interest in regulating reproduction. Sheilah Martin concludes that this decision will reverberate far into the future. Even though it fails to establish clear guidelines concerning governmental power to control access to abortion, its principles outline the legal framework in which future litigation will occur, and it will limit and shape the terms of any ensuing political debate. In addition, Madame Justice Wilson's judgment holds great promise for those looking to the Court to promote the rights of women and other historically disadvantaged groups.     

The Supreme Court and Police Practices: The Last Two Terms

The 2003–2004 term of the Supreme Court was noteworthy because it decided a relatively large number of cases dealing with police practices, many of which were of special significance. The next two terms (2004–2005 and 2005–2006 terms) were not quite as noteworthy, but still the Court decided eight police practices cases, dealing with such important issues as the detention of the residents of a home while executing a search warrant, the use of canine sniffs during a traffic stop, the validity of anticipatory search warrants, and the validity of third party consent to search when another person with authority to consent is present and objects to the search. These two terms do not provide enough cases to permit a confident prediction about the approach that the two new members of the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, are likely to take in police practices cases. However, their positions in the cases discussed in this article suggest that both will take positions in support of the police in these cases.