UHLC Nota Bene

Jesse H. Rhodes' Ballot Blocked: The Political Erosion of the Voting Rights Act gives readers a behind-the-scenes view of the history and future of the Voting Rights Act. The 1965 Act was signed into law by President Johnson, following the calls of activists in the Civil Rights movement. The legislation came in the wake of civil rights demonstrations from Selma to Montgomery, aimed at calling attention  to the desire of  African-American  citizens to exercise their constitutional right to vote. The Voting Rights Act ( PL. 89-110 ) soon became a landmark federal achievement of the civil rights movement. The Act contains both general and special provisions. For general application,  Section 2 prohibits any jurisdiction from implementing a "voting qualification or prerequisite to voting, or standard, practice, or procedure ... in a manner which results in a denial or abridgment of the right ... to vote on account of race," color, or language, or minori...

Some Supreme Court justices stand taller in our memories than others, due to both their influential (or incendiary) opinions, and the public role they take on as Supreme Court justice. Antonin Scalia, one of the most well-known Justices in modern memory, died suddenly on February 13, 2016, leaving a long and controversial legacy. The first Supreme Court vacancy overseen by the Trump administration led to the nomination, and later, confirmation of Neil McGill Gorsuch of Colorado, then 49 years old. Far from a household name, much remains unknown about Gorsuch and the justice he will become. In Gorsuch , a new biography by journalist John Greenya, readers learn more about our newest justice, if not his jurisprudence. A relatively slim volume, at about 200 pages, Greenya’s book explores Gorsuch’s early years, career progression, and confirmation process. The reader learns about his formative experiences growing up in Colorado, and his experience as the son of a former EPA-head (Anne...

The Supreme Court Style Manual, an internal legal writing manual used by justices and law clerks of the Supreme Court, has been copied and for the first time made available for purchase .  A member of the Supreme Court Bar claims to have photocopied the manual in the private Supreme Court Library to create a text for publication. Reports note that the style manual is considered an internal document by the Supreme Court, not one for general use, and that this is an unauthorized publication: The manual, prepared by the office of the court’s Reporter of Decisions, states explicitly that it is “the property of the Supreme Court of the United States and is not for publication. It is intended solely for the use of the staff of the Court, and copies should not be distributed except to members of that staff.” Copies of the manual are numbered and assigned to specific recipients at the court, presumably to prevent it from being circulated outside the court. The Supreme Court has ...

Yesterday, the White House announced that Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit and a former U.S. Justice Department lawyer will be nominated to the U.S. Supreme Court. Much has already been made of the coming Senate confirmation battle, with Senate republicans vowing to refuse to hold hearings or vote for any nominees in the election year. Since the late 1960s, the Judiciary Committee's consideration of a Supreme Court nominee almost always has consisted of three distinct stages-(1) a pre-hearing investigative stage, followed by (2) public hearings, and concluding with (3) a committee decision on what recommendation to make to the full Senate. Here’s what we know from the history of Supreme Court nominations and appointments, from just a few of the many library resources devoted to the topic: The entire nomination-and-confirmation process (from when the President first learned of a vacancy to final Senate action) has generally...

Many of our readers are probably wondering how the death of Justice Antonin Scalia will affect the Supreme Court, and what to expect of the political battle already being waged over the nomination of his successor. A new “legal sidebar” report from the Congressional Research Service (CRS) provides a brief summary of these issues. Here are a few takeaways: With the loss of Justice Scalia, the Court loses perhaps its greatest champion of constitutional “originalism,” the theory that the Constitution should be interpreted according to the understanding of those who ratified the document in the 18th century.   Justice Scalia’s absence could mean a four-to-four split in a number of cases involving high-profile issues such as abortion, immigration, and affirmative action. In the event of an even split, the Court can either affirm the lower court’s judgment (such a decision creates no binding national precedent), or schedule the case to be reargued after the vacancy is filled. A...

In his 2014 Year-End Report on the Federal Judiciary , Chief Justice Roberts revealed that the Supreme Court is currently in the process of creating its own electronic filing system, which may be available as soon as next year.   The system will provide the public with free access to Supreme Court filings.   Some of you may know that other federal courts use the Case Management/Electronic Case Files (CM/ECF) system, which provides the public with access to court filings through the Public Access to Court Electronic Records (PACER) website .   However, Supreme Court filings such as petitions, briefs, and motions are not available through PACER, and while the Supreme Court’s website currently provides access to items such as recent dockets and orders, it does not provide access to all case filings.   This is a much-needed free resource and I look forward to using the new system!

Earlier this year, many were surprised to learn that Supreme Court opinions can be, and often are revised after the opinion’s initial release. The news articles  regarding the practice were inspired by a  forthcoming article  in the Harvard Law Review by Professor Richard J. Lazarus where the phenomenon, and its prevalence are examined. The Supreme Court has noted that its opinions are not final until they are published in the official United States Reports (Morgan Stanley Capital Grp. v. Pub. Util. Dist. No. 1, 554 U.S. 527 (2008)). The time from when the bench opinion is issued to the actual publication of the print United States Reports volumes can extend over five years. After the bench opinion is released at the court upon announcement, a slip opinion is made available soon after. A couple of years later, the softcover preliminary prints of the United States Reports are published, with the notation that the opinions are still subject to revision. According t...

Last Friday, the William J. Clinton Presidential Library released its fifth batch of documents previously restricted under the Presidential Records Act. The Act, signed into law by President Carter in 1978, establishes public ownership of all official records of the President. These records may be obtained through Freedom of Information Act (FOIA) requests beginning five years after the end of the President’s administration. However, the President may bar access to certain records for up to 12 years by invoking any of six restricted categories. The records now being released by the Clinton Library have been withheld under categories P2 (dealing with appointments to federal office) and P5 (dealing with confidential advice between the President and his advisers or between the advisers themselves).   This new batch of documents will be of particular interest to followers of the U.S. Supreme Court. It contains a series of memos advising President Clinton on his first nominatio...

Bloomberg BNA has recently published the 10th Edition of Supreme Court Practice , by Stephen M Shapiro, Kenneth S. Geller , Timothy S. Bishop , Edward A. Hartnett , and Dan Himmelfarb , which is essential for the practitioner, scholar, and pro se patron alike. This treatise, which has been updated to reflect the U.S. Supreme Court's new rules , contains a convenient checklist that summarizes the Supreme Court rules regarding processing cases (including limits on document length and color covers). The authors provide a detailed overview of the U.S. Supreme Court and examine the court's jurisdiction to review federal and state appellate cases.  This book covers petitioning the Supreme Court for writ of certiorari , discussing the process involved and the different factors that the court considers in accepting these cases along with the detailed framework of such petitions. Other matters such as extraordinary writs, briefs on the merits, oral arguments, and admission to pr...

When I was in law school, one of the cases I hated the most was Schmerber v. California, 384 U. S. 757 (1966) . I hated Schmerber for many reasons, but primarily because of its (in my opinion) conflated analysis of the Fifth and Sixth Amendments and its unabashedly obvious, pro-law enforcement bias resulting in a flawed Fourth Amendment analysis. At that time, I thought the Court was wrong, and I still do. It's been over 20 years since the US Supreme Court last gave more than a simple citation or two to Schmerber , and now, the Court gives us two decisions that implicate Schmerber in one term! And it's interesting (or at least I find it interesting) the differing ways the Court dealt with Schmerber in those two cases. Much like the view of the arresting officer (and the dissenting aspects of the Chief Justice's opinion) in the first of these two cases, Missouri v. McNeely, 133 S. Ct. 1552 (2013) , my understanding of Schmerber from law school was that, in instances of...

One of my favorite websites lately (and I hate to admit that I only discovered it several months ago) is the National Constitution Center 's blog, Constitution Daily . The NCC's website has a lot of great, helpful, and fascinating information, but the blog is what usually grabs my attention. The writers of the blog tackle constitutional issues, but they focus on the issues making news at the time, tackling everything from the use of drones to same-sex marriage, from the tension between a free press and a government's claim of national security to the proper place in our system for bureaucratic agencies. If you see or hear a news story about some aspect of how our government works (or should work), chances are that a blog entry explaining some of the nuances or identifying unanswered questions regarding that topic is in the works. For example, since the US Supreme Court's controversial decision in Maryland v. King (upholding the warrantless collection and testing of a...

The Justice who once said, I do not think the Supreme Court lives in a vacuum. It reads the newspapers. I suppose it is influenced by the reaction of a society to its decisions; at least I hope it is. I think it should be. Is . . . 5. Antonin Scalia!! ( See Nomination of Judge Antonin Scalia: Hearings Before the S. Comm. on the Judiciary , 99th Cong., S. Hrg. 99-1064, at 34 (1986).) [Make of it what you will.]

In this week's episode, a look back at a comment on the desirability of the Supreme Court's responsiveness to public reaction to its decisions. Welcome, ladies and gentlemen, to this week's exciting installment of "Which Justice Said That?". And, without further ado, let's get right to this week's quote: During the hearings on his nomination to the Supreme Court of the United States of America, this nominee declared, I do not think the Supreme Court lives in a vacuum. It reads the newspapers. I suppose it is influenced by the reaction of a society to its decisions; at least I hope it is. I think it should be. Now: Which . . . Justice . . . Said That?! Samuel Anthony Alito, Jr. Stephen G. Breyer Anthony M. Kennedy John G. Roberts, Jr. Antonin Scalia Clarence Thomas Feel free to put your guess in the Comments section below. Come back tomorrow for the exciting conclusion to this episode of "Which Justice Said That?" !!

On March 26 and March 27, the United States Supreme Court will hear oral arguments in two cases involving same-sex marriage. The first, Hollingsworth v. Perry , addresses California’s Proposition 8, and will ask the question of whether or not the 14 th Amendment prohibits the State of California from defining marriage as the union of a man and a woman. The second, U.S. v. Windsor , will address whether or not the federal Defense of Marriage Act violates the equal protection guarantees in the Fifth Amendment’s due process clause, as applied to same-sex couples legally married in the laws of their own state. The resulting opinions of the Court in both cases will likely have long lasting effects on Constitutional law in the United States as well as the rights of same-sex couples throughout the nation. A new book in the law library's collection, From the Closet to the Altar: Courts, Backlash, and the struggle for Same-Sex Marriage , by Michael J. Klarman (KF 539 .K58 2013) prov...

What do Constitutional law professors do when the Supreme Court is not in session?   This past year it seems they talked about mistakes the court has made in the past. This past year two different law reviews held symposiums on, depending how they titled the issue, “Supreme Mistakes” (volume 39, no. 1 Pepperdine Law Review ) or “The Worst Supreme Court Case Ever(?)” (volume 12, no. 3 Nevada Law Journal ).   If one wanted to go a little further back you could include Prof. Jamal Greene’s article “The Anticanon” (125 Harv. L. Rev . 379 (2011) as also covering the same territory. As you would expect the articles spend a great deal of effort explaining exactly what makes a bad Supreme Court opinion and why the opinion that particular author chose is the worst. The Pepperdine symposium is novel in that it has an author lay out the reason why an opinion is bad and then another author defends the opinion in question. Pepperdine’s parade of horribles is made up of the us...