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Lincoln and Chief Justice Taney JAMES F. SIMON* Abraham Lincoln and Chief Justice Roger B. Taney may have met only twice—in 1849, when Lincoln made an oral argument before the Supreme Court, and in 1861, when Chief Justice Taney administered the presidential oath of office to Lincoln. The two men’s roles in American history are inextricably bound nonetheless, as I will attempt to demonstrate in this essay. The first meeting of Lincoln and Taney probably took place when Lincoln made his only argument before the Supreme Court of the United States in March 1849. It occurred shortly before he had completed his single— and, to Lincoln, very disappointing—term as a member ofthe U.S. House ofRepresentatives. At that time, he felt that he had made no signif icant mark in his two-year congressional term and was resigned to returning to Springfield to resume his full-time law practice.1 In his Supreme Court argument, Lincoln represented the estate of an Illinois resident, Matthew Broadwell, who in 1819 had sold a parcel ofland in Ohio to a man named William Lewis. The problem, Lewis later discovered, was that Broadwell did not own the land. After the rightful owner ejected Lewis from his land in 1825, Lewis sued Broadwell for damages.2 In his Supreme Court argument, Lincoln did not dispute that Broadwell had sold Lewis land that he did not own. He argued only that by the time Lewis sued, the statute of limi tations had run, so Lewis could not lawfully collect from Broadwell’s estate. It came down to a legal question of statutory interpretation. Lincoln lost the case, and ChiefJustice Taney wrote the majority opinion rejecting his argu ment.3 It was the first time that Lincoln and ChiefJustice Taney disagreed in a dispute be fore the Supreme Court, but it would not be the last. When Lincoln presented his argument in the Lewis case, the Justices of the Supreme Court did not sit in the current magnificent courtroom— or any other. In fact, they listened to Lincoln’s argument in a room in the base ment of the Capitol building. One member of the Court, Justice John Catron of Tennessee, later blamed the dark, dank basement quarters for the bad health of many ofthe Justices.4 We have no physical description of Lincoln when he argued the Lewis case 226 JOURNAL OF SUPREME COURT HISTORY Lincoln argued one case before the Supreme Court, Lewis v. Lewis, in 1849, a mundane land-sale dispute that received little attention. Lincoln was admitted to the Supreme Court Bar on March 7 on the motion of Washington attorney Alexander H. Lawrence, who argued the case that day. As co-counsel, Lincoln made the concluding remarks the following day in what is now the refurbished Old Senate Chamber. before Chief Justice Taney and his Brethren. But thanks to photographs and contemporary accounts, we know that Lincoln was very tall—about 6'4"—and thin and spoke in a high, slightly shrill voice. His success as a trial lawyer was by then well established. He spoke plainly and effectively to bothjuries and judges.5 In his Supreme Court brief, Lincoln ap pealed to what he termed “the dictate of com mon sense,” which, he added, “seems to be the perfection of reason.” In urging the Court to adopt his statutory interpretation, Lincoln asked the Justices to draw their conclusions, in his words, “without any metaphysical or hair splitting distinctions.”6 When Taney heard Lincoln’s oral argu ment, the ChiefJustice was seventy-two years old, thirty-two years older than Lincoln. Like Lincoln, Taney was tall and thin. But unlike the Illinois lawyer, Taney never possessed Lin coln’s physical vigor. Since Taney had been a young lawyer in Maryland, he regularly com plained that the stress of his work threat ened his health. His complaints were con stant, and so was his success as a trial lawyer and as the state’s attorney general. Later, he served President Andrew Jackson as U.S. At torney General and Secretary of the Treasury and shared Jackson’s aversion to vested cor porate interests. Taney, like President Jackson , was an avowed...
Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for Chevron Deference”
Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”
Read more1Remembering the Great Chief Justice
Remembering the Great Chief Justice CHARLES F. HOBSON From the moment he departed mortal life in July 1835, John Marshall secured a place of first rank in the American pantheon. Joseph Story, his close friend and brother judge, pro nounced him “a great man”—notjust a great man ofhis time but “a great man in any age, and of all ages...one of those, to whom centuries alone give birth.” Although uttered in the fulsome language of eulogy, Story’s verdict, coming from one who knew Marshall intimately over many years, rings true. Indeed, added Story, Marshall was not one of those celebrated men who “appeared greatest at a distance” and whose “superiority vanished on a close survey”; rather, “it required some degree of intimacy fully to appreciate his powers; and those who knew him best, and saw him most, had daily reason to wonder at the vast extent and variety of his intellectual resources.”1 Today, two hundred years after his ap pointment as Chief Justice of the Supreme Court of the United States, Marshall’s reputa tion remains as high as ever, resting on a solid foundation that is virtually resistant to icono clastic attack. Both the public at large and es pecially the fraternity of lawyers and judges hold Marshall in reverent regard. Even aca demics—law professors, political scientists, and historians, whose business it is to study American constitutional law and history—ac knowledge his greatness. In any ranking of American jurists, Marshall is always listed among the “greats” and usually heads the list.2 It is true, of course, that Marshall’s reputation benefited from the perception that he was on the “right” side of history. The Constitution is still the framework of our government and our fundamental law; the federal union and gov ernment brought into existence by the Consti tution have endured, stronger and more pow erful than Marshall could possibly have imagined; and the Supreme Court continues to sit here in Washington, enjoying unques tioned authority to expound and pronounce the law of the Constitution. The enduring sue- 294 JOURNAL OF SUPREME COURT HISTORY cess of our Constitution and government— and particularly the flourishing state of the ju dicial branch—are attributed in no small mea sure to Marshall. He was there at the begin ning—when the federal government was in its infancy, when the details of the Constitution began to be filled in, when the Constitution first entered the court system as a law to be expounded and applied in the ordinary course of adjudicating cases, and when the Supreme Court first began to acquire its identity as the interpreter and guardian of the Constitution and arbiter of the federal system. Marshall, then, is a “father” or “founder”—the father of the Supreme Court, the founder of American constitutional law— or, as Story dubbed him, “the Expounder ofthe Constitution of the United States.”3 Indeed, so large does Marshall’s shadow loom over the early years of the Supreme Court that many Americans mistakenly assume he was the first Chief Justice, rather than the fourth. The U.S. Postal Service literally gave its stamp of ap proval to this assumption back in February 1990, when it issued a commemorative of the bicentennial of the first meeting of the Su preme Court. Do you recall whose image was on that twenty-five-cent stamp? Not that of John Jay, the first ChiefJustice. This audience, to be sure, does not need to be reminded that there was a Supreme Court, there was a consti tutional law, before Marshall, and that the His torical Society sponsors a documentary edition devoted to the Court’s first decade. Long ago, Marshall left the realm of his tory and entered the realm ofmyth and symbol. Perhaps Story began the myth-making pro cess, but it was carried to completeness by the outpouring of hagiography that occurred dur ing the 1901 centennial and especially by the publication of Albert J. Beveridge’s four-volume biography in 1919.4 More than anyone else, Beveridge established the heroic image of Marshall as a colossus who bestrode history and shaped it according to his prescient vision and will. As depicted...
Read more44Judicial Career Patterns and Majority Opinion Assignment on the Supreme Court
Previous articleNext article No AccessResearch NotesJudicial Career Patterns and Majority Opinion Assignment on the Supreme CourtElliot E. SlotnickElliot E. Slotnick Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Politics Volume 41, Number 2May, 1979 Sponsored by the Southern Political Science Association Article DOIhttps://doi.org/10.2307/2129783 Views: 5Total views on this site Citations: 15Citations are reported from Crossref Copyright 1979 Southern Political Science AssociationPDF download Crossref reports the following articles citing this article:Erin B. Kaheny, John Szmer, Robert K. Christensen Status characteristics and their intersectionality: majority opinion assignment in state supreme courts, Politics, Groups, and Identities 8, no.55 (Feb 2019): 894–917.https://doi.org/10.1080/21565503.2019.1569538Drew Noble Lanier Acclimation Effects and the Chief Justice: The Influence of Tenure and Role on the Decisional Behavior of the Court’s Leader, 1888-2007, American Politics Research 39, no.44 (Jul 2011): 682–723.https://doi.org/10.1177/1532673X11401813Drew Lanier Acclimation Effects and the Chief Justice: The Influence of Tenure on the Decisional Behavior of the Court’s Leader, 1888-2007, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.1846631Solomon Omoregie Ukhuegbe Recruitment and Tenure of Supreme Court Justices in Nigeria, SSRN Electronic Journal (Jan 2011).https://doi.org/10.2139/ssrn.2034920Forrest Maltzman, Paul J. Wahlbeck A Conditional Model of Opinion Assignment on the Supreme Court, Political Research Quarterly 57, no.44 (Dec 2004): 551–563.https://doi.org/10.1177/106591290405700404Lori Hausegger, Stacia Haynie Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division, Law <html_ent glyph="@amp;" ascii="&"/> Society Review 37, no.33 (Sep 2003): 635–657.https://doi.org/10.1111/1540-5893.3703006C. L. Ostberg, Matthew E. Wetstein, Craig R. Ducat Acclimation Effects on the Supreme Court of Canada: A Cross-Cultural Examination of Judicial Folklore *, Social Science Quarterly 84, no.33 (Aug 2003): 704–722.https://doi.org/10.1111/1540-6237.8403013Saul Brenner, Timothy M. Hagle Opinion writing and acclimation effect, Political Behavior 18, no.33 (Sep 1996): 235–261.https://doi.org/10.1007/BF01498601Timothy M. Hagle A NEW TEST FOR THE FRESHMAN EFFECT, Southeastern Political Review 21, no.22 (Nov 2008): 289–308.https://doi.org/10.1111/j.1747-1346.1993.tb00364.xTerry Bowen, John M. Scheb Reassessing the “freshman effect”: The voting bloc alignment of new justices on the United States Supreme Court, 1921–90, Political Behavior 15, no.11 (Mar 1993): 1–14.https://doi.org/10.1007/BF00993413J. F. Kobylka Leadership on the Supreme Court of the United States: Chief Justice Burger and the Establishment Clause, Political Research Quarterly 42, no.44 (Dec 1989): 545–568.https://doi.org/10.1177/106591298904200407Peter J. Bergerson JUDICIAL BACKGROUND TRAITS UNDER THE MERIT SELECTION PLAN: THE MISSOURI COURT PLAN REVISITED, Southeastern Political Review 15, no.22 (Nov 2008): 169–188.https://doi.org/10.1111/j.1747-1346.1987.tb00241.x Edward V. Heck , and Melinda Gann Hall Bloc Voting and The Freshman Justice Revisited, The Journal of Politics 43, no.33 (Oct 2015): 852–860.https://doi.org/10.2307/2130641 Steven A. Peterson Dissent in American Courts, The Journal of Politics 43, no.22 (Oct 2015): 412–434.https://doi.org/10.2307/2130375 Gregory J. Rathjen Conventional Wisdoms Don't Die Easily: Judicial Career Patterns and the Context of Majority Opinion Assignment, The Journal of Politics 42, no.44 (Oct 2015): 1170–1172.https://doi.org/10.2307/2130746
Read moreDocumentary Editing and the Jay Court: Opening New Lines of Inquiry
Documentary Editing and the Jay Court: Opening New Lines of Inquiry Ene Sirvet and R.B. Bernstein For too long, Americans have thought that the history of the Supreme Court of the United States began with John Marshall. Even many lawyers, legal scholars, and historians, though aware that three Chief Justices preceded Mar shall, have dismissed their tenures as insignifi cant at best, failures at worst. Evaluating the Supreme Court that was by reference to the pow erful appellate tribunal that is wrongly gauges a Chief Justice’s success by two rules of thumb: did the Court under that ChiefJustice hand down important constitutional decisions that have be come bulwarks of modem American constitu tional law? Was that ChiefJustice a leading force in promulgating such decisions? Using the modem understanding of the Su preme Court as a measure to evaluate earlier Courts obscures how, by a process neither unop posed nor foreordained, the Court became the center of gravity of American constitutionalism. Moreover, focusing the historiography ofthe fed eral courts on the Supreme Court scants the vi tal role played in the development of American law by the lower federal bench, whether trial or appellate. The Promise of Documentary Editing One factor obscuring the early Court was the difficulty of access to historical evidence. Until recently, most primary sources for the early Court were unpublished, scattered in repositories around the nation, and difficult to use for any one lacking historical background and legal training. Lawyers of that era used a complex legal jargon that can baffle unprepared research ers. For example, studying the federal circuit courts requires a grasp of such subjects as the common law writ system and federal jurisdic tion. Knowing the difference between a suit “in trespass” and one “in trespass on the case” is key to analyzing the kinds of lawsuits that these courts heard; knowing the rules of federal juris diction reveals whether cases were properly brought before the courts and lays bare patterns of interstate litigation and the economic trans actions behind such suits. Now the “documentary editing revolution,” hailed by historian William W. Freehling as the most important development in modem Ameri 18 JOHN JAY can historiography,' has embraced the federal courts. Not only is John Marshall the focus of one ofthe most distinguished documentary edit ing projects, The Papers of John Marshall— two other projects examine the pre-Marshall fed eral judiciary: The Documentary History of the Supreme Court ofthe United States, 17891800 and The Papers of John Jay. A documentary history portrays the growth of an institution or process of government, trac ing the development ofcollegial relations among its members and its processes of collective deci sion-making. A documentary editing project keyed to an individual complements institutional documentary histories by presenting the institution’s development through that person’s eyes—especially when, like Jay or Marshall, he is the institution’s leader. A Chief Justice over sees and speaks for the Supreme Court and the federal judiciary; he monitors the administration of the federal bench, the courts’ ability to fulfill their constitutional and statutory duties, and the judiciary’s place in the public mind. Focusing on the first Chief Justice offers a unique view ofthe federal courts’ early develop ment. This is the goal ofthe last volume of The Papers ofJohn Jay: ChiefJustice and Feder alist Statesman, 1789-1829, which will exam ine Jay as the Court’s ChiefJustice and as one of six circuit judges. It will assess the burdens he faced while riding circuit and while presiding over the Court, leading his colleagues in defin ing the Court’s role in an evolving constitutional system. It will describe the number and kinds of cases that Jay heard, and it will trace patterns of federal litigation. It will analyze how Jay and his colleagues grappled with the problem of extrajudicial activities and responsibilities— those imposed by Congress (as in the 1792 stat ute asking the Justices to hear RevolutionaryWar veterans’ pension claims) and those sought by President George Washington and his adminis tration (such as his 1793 request for an advisory opinion from the Court, discussed in the follow ing article, and his 1794 naming of Jay as Min...
Read morePolitics, the Court, and the Constitution: A Bibliographical Essay on the Pre- and Post-New Deal Supreme Court
Politics, the Court, and the Constitution: A Bibliographical Essay on the Pre- and Post-New Deal Supreme Court John B. Taylor To survey the literature ofthe pre- and post-New Deal Supreme Court, as conceived in this series of essays, is to examine historical, political, and legal scholarship covering more than six decades of Su preme Court history. That literature is vast, and the principal difficulty is not to discover the sources, or even to organize them, but to make choices about inclusion and exclusion and, because of constraints oftime and space, to reconcile oneselfto the neces sity ofomitting many useful works for reasons that are to some extent arbitrary. I have limited the dis cussion to books and journal articles that are likely to be available in good academic (or, in some cases, law) libraries; newspaper accounts, articles in popu lar magazines, and unpublished sources such as dis sertations and collections ofpapers and manuscripts are not included. Fortunately, a reader wishing to pursue topics covered here can start with a few of the sources listed and, with little effort or by sheer serendipity, quickly locate many more, both pub lishedandunpublished, formost ofthese works have extensive notes or bibliographies and many have helpful bibliographical essays. General bibliogra phies are also available, such as Stephen M. Millett, comp., A Selected Bibliography ofAmerican Con stitutional History (SantaBarbara, CA: Clio Books, 1975). D. Grier Stephenson, Jr., comp., The Su preme Court and the American Republic (New York: Garland Publishing, 1981), has briefannota tions; KermitL. Hall, comp., A Comprehensive Bib liography ofAmerican Constitutional and Legal History, 1896-1979, 5 vol. (Millwood, NY: Kraus International Publications, 1984) is an exhaustive but unannotated compilation of references grouped by subject. Fenton S. Martin and Robert U. Goehlert, comps., The U.S. Supreme Court:A Bibliography (Washington, D.C.: Congressional Quarterly, 1990), is an unannotated bibliography on topics about the Supreme Court, including works on and by the Jus tices, which also lists other bibliographies. General Works Since our topic spans several decades and fo cuses on a momentous event (the Court-packing crisis of 1937), general works on the Court and on American constitutional history have much to offer with respect to many of the specific topics mentioned hereafter. Leonard W. Levy, Kenneth L. Karst, and Dennis J. Mahoney, eds., Encyclopedia of the American Constitution, 4 vols. plus Supplement (New York: Macmillan, 1986, 1991) contains articles on Justices, judicial decisions, doctrinal concepts, and historical perspectives. A 100 JOURNAL 1997, VOL. 1 useful selection fromthese articles, focusing on short periods of constitutional history and on the Court under each ofits ChiefJustices, is the same editors’ American Constitutional History (New York: Macmillan, 1989). Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Con stitution: Its Origins and Development, 7th ed. (NewYork: W. W. Norton, 1991) is a richly descrip tive and analytical narrative that seeks to balance the conflicting impulses ofthe liberal nationalist and de centralized individualist themes inAmerican consti tutional development, while Melvin I. Urofsky, A March ofLiberty:A Constitutional History ofthe United States (NewYork: AlfredA. Knopf, 1988) is a clearlywritten and succinct discussion ofthe events, issues, and trends ofAmerican constitutional history, with attention to developments in the law beyond the realm ofconstitutional interpretation and to law and policy at the state as well as national level. Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1922, 1926) is a classic history ofthe Court up to 1918 that pays con siderable attention to public reaction to its decisions. The OliverWendell Holmes Devise History ofthe Supreme Court of the United States (New York: Macmillan) is an exhaustive, ongoing, multivolume work. Relevant to this topic are Owen M. Fiss, Troubled Beginnings of the Modern State, 18881910 (1993), and Alexander M. Bickel and Benno C. Schmidt, Jr., The Judiciary and Responsible Government, 1910-21 (1984). David P. Currie, The Constitution in the Supreme Court: The First HundredYears, 1789-1888, and The Constitution in the Supreme Court: The Second Century, 18881986 (Chicago: University ofChicago Press, 1985, 1990) is a history of and commentary upon the Supreme Court and its work, written from the perspective ofa lawyer interested in methods ofcon stitutional analysis and the quality ofthe performance...
Read moreThe role of the us supreme court in the legal system
The purpose of the article on the topic of judicial lawmaking in the USA, which attempts to invade the educational process and intensify the study of the History of State and Law of Foreign Countries, is devoted to the U.S. Supreme Court – the founder of constitutional justice and one of the pillars in the system of separation of powers. This is a unique judicial institution with an exceptional degree of influence, about which America’s famous political writer Alexis do Tocqueville stated that “never before have any people had such a powerful judicial authority”. The purpose of the research is to identify the features of the law-making activity of the US Supreme Court, since judicial law making in science remains an unsolved problem. To achieve this goal, the methods of scientific research were used, in the form of general methods, complex special methods of jurisprudence. For the reader, the phenomenon of the us Supreme Court is interesting in several aspects. First, from the point of view of the evolution of American law and the judicial system in all its dynamics and contradictions. Secondly, in terms of the implementation of judicial activity, complex thought processes of finding the necessary precedents and arguments in a particular case, achieving (if possible) a compromise between the judges-colleagues. Judicial activity should be interpreted not only as based on law, but also subject to ideological and political influences. The results of the research are very important for researchers of the legal system of foreign countries, and to look at the us Supreme Court through the eyes of American history as an institution that has the potential to enter into conflict with both the legislative and Executive authorities. On the other hand, it is important to understand the logic of filling vacancies in the Supreme Court by the Executive branch. In the ongoing in this country, searches the reasons for negative political and legal phenomena attention is drawn to the interpretation of the Federal Constitution, the U.S. Supreme Court, in General, the activities of the court performing a legislative function, it is unusual and constitutional loose. However, many issues remain insufficiently studied, including the role of the US Supreme Court in constitutional law making, and the phenomenon of judicial law making itself. Key words: lawmaking, jurisdiction, Supreme Court, USA, legislature.
Read moreVIEWPOINT: A Letter to the Chief Justice
VIEWPOINT: A Letter to the Chief Justice
3The Particulars of Owning
The Particulars of Owning
1Orzeczenie Supreme Court of the United States w sprawie immunitetu Prezydenta USA jako wyraz sporów o funkcje sądów i prawa w demokracji konstytucyjnej
The criminal liability of the President for acts committed in the exercise of his office covers a complex of issues related to all areas of the legal system. Indeed, the criminal law aspects of the grounds and manner of criminal liability are complemented by constitutional elements. The special position and powers of the President co-determine the scope of responsibility. The President’s actions that fall within the limits of his powers and duties remain, for obvious reasons, outside the scope of repressive responsibility. The scope of presidential responsibility is also co-determined by institutions categorised as instruments of corrective justice, including states of necessity and circumstances excluding fault. This issue can be analysed from a purely penal perspective or it can also take into account elements of constitutional regulation. The US Supreme Court’s approach was based on yet another perspective. The elements that determine the limits of the President’s criminal liability for acts committed in the exercise of his office are sought by the Supreme Court in its reconstruction of the principle of separation of powers. Pointing to the presidential powers set out in Article II of the US Constitution, it assumes that they delimit the area of independent and exclusive powers, within the scope of which Congress may not interfere by means of legislation. By virtue of the will of the legislature thus reconstructed, Congress lacks the authority to enact laws providing for the criminal liability of the President in this respect. Consequently, the courts also lack the competence to oversee such cases. The above assumptions form the basis for the US Supreme Court to reconstruct from the US Constitution the absolute immunity of the President in terms of the exclusive and preclusive competences set out in the US Constitution. In addition, the Supreme Court also derives from the US Constitution the construction of presumptive immunity, which covers presidential actions in the area of shared powers with Congress. Although, in this respect, the Constitution does not deprive Congress of the power to legislate, including the power to define the grounds for the President’s criminal liability, the bring to criminal charges against the President is contingent on a demonstration that this will not unduly interfere with the efficiency and authority of the executive branch. By locating the grounds for the reconstruction of presidential immunity at the level of constitutional provisions relating to the principle of separation of powers, the approach presented by the Supreme Court transforms criminal law analyses into systemic constitutional considerations. In this way, the Supreme Court’s decision on presidential immunity is part of the debates concerning the nature of the constitutional principle of the separation of powers, the court’s competence to rule on constitutional issues, the delimitation of the scope of competences of the authorities, and, finally, the disputes concerning the scope of the Court’s cognition in the sphere of matters that are strongly entangled politically and morally. The US Supreme Court’s decision on presidential immunity was based to a significant extent on the jurisprudential concept (doctrine) of the separation of powers. The essential line of argumentation is based on the Supreme Court’s reconstruction of the content, meaning and function of the principle of separation of powers, which forms the basis for the position relating to the scope and type of presidential immunity. At the same time, in the sphere related to absolute immunity, one can see in it a reference to the concept (doctrine) of the republican separation of powers. The exclusion of the possibility of the courts’ interference in the area of competence regulated by Article II of the US Constitution means that the assessment of the President should take place at the level of constitutional responsibility in the impeachment procedure. In the area covered by the construction of impeachment, by confirming the competence of the courts to carry out a criminal assessment, it supplements the prerequisites for liability with elements reconstructed from the Constitution. It thus expresses restraint in the sphere of judicial competence on matters relating to constitutional and political aspects. It does not decide the question of immunity unequivocally, leaving a considerable area of discretion, leaving a space that can be filled by subsequent decisions of the federal courts on this issue.
Read moreWho Determines the ‘Permissibility’ of an Interpretation Within the Meaning of Article 17.6(ii) of the Anti-dumping Agreement?: A Constructive Commentary on the Colombia – Frozen Fries Approach
p class="MsoNormal"The interpretation of Article 17.6(ii) of the Anti-dumping Agreement has become a pivotal issue in World Trade Organization (‘WTO’) dispute settlement proceedings, especially amidst recent challenges at the WTO. Traditionally, the WTO Appellate Body has adhered to a single ‘correct’ interpretation of the Anti-dumping Agreement, as guided by the Vienna Convention on the Law of Treaties (‘VCLT’). This approach effectively dismissed alternative interpretations presented by responding Members. However, on 21 December 2022, the arbitrators in the Multi-Party Interim Appeal Arbitration Arrangement (‘MPIA’) in the case of Colombia – Frozen Fries deviated from this longstanding position. They concluded that a ‘permissible interpretation’ need not be ‘correct’ or ‘final’. This development is particularly intriguing in light of the US Supreme Court’s 28 June 2024 decision in Loper Bright Enterprises v. Raimondo (‘Loper’), which overturned the Chevron deference. The Court declared that in statutory interpretation, if an interpretation is not the best, it is not permissible. Given the notable parallels between Article 17.6(ii) and Chevron deference, the US Supreme Court’s ruling raises significant questions regarding the legal standard applied in Colombia – Frozen Fries. This paper first explores the background and evolution of WTO jurisprudence concerning Article 17.6(ii) of the Anti-dumping Agreement. It then examines the legal standard introduced in the Colombia – Frozen Fries (the ‘MPIA Standard’). Finally, it offers constructive commentary on the implications and potential impact of the MPIA Standard on future WTO dispute settlements.o:p/o:p
Read more4Inside the “Constitutional Revolution” of 1937
The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.
Read more
The supreme court of US as an authority of Constitutional jurisdiction
Given the uniqueness of the judicial system in the United States of America and the role of the Supreme Court in shaping the country’s entire judicial system, the authors devoted an article to an analysis of the Supreme Court of the United States as the body that makes up the country’s Basic Law, the Constitution. Taking into account the specificity of one of the oldest written Constitutions of the world, it was appropriate to understand the mechanism of its creation, the powers of the body, which creates it also in the characteristics of this body, which the authors of the article have implemented. The authors analyzed a number of scientific works of both domestic and foreign scholars, the legal literature of the United States of America, the provisions of the Constitution, and fundamentally analyzed the legal system of the United States, and in this way the authors reached the correct conclusions. The history of the creation of the Supreme Court of the United States, its functions and powers were also analysed. The stages of the creation of the Constitution and the procedure for amending it were studied; the evolution of the interpretation of various provisions and of the amendments to the Constitution was studied; The role of the Court’s case law in the creation of the Constitution has been clarified; a number of constitutional precedents have been examined, particularly those that have influenced the interpretation of the V Amendment to the United States Constitution. The term «living Constitution» had been interpreted and explained, what the phenomenon was
 and what role the Supreme Court played. Sufficient attention has been paid to the individual thoughts and views of Supreme Court judges in the various periods of the institution’s existence. Special attention was also devoted to the analysis of the content of the concept of “constitutional control”, its interpretation in a broad and narrow sense. In the conclusions, the authors stress the principal aim of the founding parents, what meaning was given to the provi-sion of the Constitution, and note the impact of the Court on the State, the social system and the legal status of the individual. In particular, the authors note that the Supreme Court of the United States of America has established effective and acceptable jurisprudence for the Ukrainian judicial system, which has provided the basis for this study.
Read more“The Right Result”: Attitudes, Strategy and Law in the Narrative of Supreme Court Decisions
One key problem concerning meaningful explanation of the activities of the United States Supreme Court is: how do the Justices make decisions in the cases before them? From the behavioralist perspective, attitudinalism remains the dominant model for explaining decision-making on the United States Supreme Court. A series of works uses statistical analysis, based on large datasets, to show clearly that the behavior of Justices, at least as far as their making of decisions in civil liberties cases goes, is highly predictable given a relatively small amount of information about the Justices' perceived views before their appointment to the Court.The availability and development of a major dataset – Harold J. Spaeth, United States Supreme Court Judicial Database, 1953–2001 Terms Computer File (East Lansing, MI: Program for Law and Judicial Politics, Dept. of Political Science, Michigan State University: continuously updated; downloadable from http://polisci. msu.edu//pljp) – has led to a series of increasingly comprehensive analyses of attitudinalism. See Jeffrey A. Segal and Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” American Political Science Review 83 (1989): 557–65; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge: Cambridge University Press, 1993); Jeffrey A. Segal et al., “Ideological Values and the Votes of U.S. Supreme Court Justices Revisited,” Journal of Politics 57 (1995): 812–23; Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002).
Read more27Fifty Years after Brown: The Benefits and Tradeoffs for African American Educators and Students
This article examines the benefits and tradeoffs for African American professional educators and students that resulted from the profound Brown v. Board of Education decision. It addresses the impact of the Brown decision immediately after it was rendered for African American educators and students and the legacy of Brown for both of these groups during the previous 50th years. The article also presents the findings from a study of 36 current and recently retired African American high school principals in North Carolina and Alabama to determine their perceptions of the legacy of the Brown decision for both African American educators and high school students. Additionally, the article presents the views of a small sample of these principals who were interviewed regarding the degree to which African American high school students are currently involved in student leadership roles and school activities. Results of the study indicated that the vast majority of the respondents believed that Brown had benefited both African American educators and students; however, they indicated that it had some unintended consequences such as a precipitous drop in the number of African American teachers to serve as role models, competent professionals, and authority figures for students-both Black and White. Furthermore, they perceive that, particularly in integrated high schools where White students are in the majority, the curriculum usually does not adequately address the history, contributions, culture, and experiences of African Americans. Moreover, the principals perceive that African American students in fully integrated schools, with few exceptions, are underrepresented in school leadership roles and are often reluctant to run for elective leadership positions because they usually do not believe they can win. INTRODUCTION On May 17, 1954, at 12:52 p.m., the United States Supreme Court rendered its momentous decision in the case of Brown v. Board of Education of Topeka, Kansas (1954). The fundamental public policy that the court unanimously ruled upon was straightforward: segregated schools (established and maintained by state action) were inherently unequal. The court clearly said, through its ruling, that but was, in fact, a contradiction in terms-official state sanctioned segregation was a violation of the protection clause of the 14th Amendment of the Constitution, which forbids any state from making or enforcing any laws which deny any person within its jurisdiction the protection of the laws. Prior to the Supreme Court's ruling, dual and segregated school systems had been established and maintained for African American and White students. These schools systems were primarily in the southern states where Jim Crow laws had prevailed after reconstruction. Ironically, the rationale for establishing and maintaining de jure segregated schools had been also formalized by the United States Supreme Court in another momentous decision, Plessy v. Ferguson, in 1896, which legitimized the principle of separate but equal (1896). The case evolved from a suit filed by Homer Plessy, a Black man who had filed suit after he had initially been fined for sitting in the White section of a railroad car in Louisiana. His case questioned the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for railway carriages for the White and colored races. Plessy contested the decision all the way to the United States Supreme Court, which upheld the state's but doctrine. In the Plessy decision, the Supreme Court gave racial inequality and segregation an air of legitimacy for over a half century. Moreover, it served to institutionalize racial segregation and social norms, particularly in me South, in both public and private arenas. Not only did the decision condone and maintain racially railroad cars and other modes of public transportation, it virtually assured segregation in schools and school activities, courthouses, waiting rooms, public beaches, swimming pools, restaurants, bathrooms and drinking fountains. …
Read more4The Supreme Court of the United States, 1968-1969
EACH TERM of the Supreme Court seems to have something to distinguish it from those that have preceded it. With the resignation of Chief Justice Earl effective at the close of the 1968-69 term, this term will remain forever as a milestone for it marked the close of the Warren era as this period has come to be known. Regardless of how the Court moves ideologically in the years to come, it will no longer be the Warren Court. President Nixon named Minnesota-born and educated Earl Burger of the United States Court of Appeals of the District of Columbia to fill the vacancy in the office of Chief Justice. The resignation of Associate Justice Abe Fortas in May gave the newly inaugurated President another vacancy to fill. Clement Furman Haynsworth, Jr., of Virginia, Chief Judge of the Fourth Circuit Court of Appeals was named but the Senate refused confirmation on November 21, 1969. President Nixon then named George Harrold Carswell, a member of the Fifth Circuit Court of Appeals. Chief Justice Burger is from Virginia and Justice Carswell is from Florida. In its work this term the Court again set a new all-time record in cases disposed of with a total of 3,151. In the 1966 and 1967 terms the totals were 2,903 and 2,973, respectively. In each term since that of 1953 the Court has set a new record of cases disposed of except in the 1958 and 1964 terms. The cases remaining on the docket increased to another apparently all-time high of 767 compared with 453 and 613 in the previous two terms respectively. Cases argued were down to 140 as against 180 in the 1967 term and 150 in the 1966 term. Of the cases argued, 116 were disposed of by 99 written opinions and 14 by per curiam opinions. Ten cases were set for reargument. Again the division of labor in the writing of opinions was well-nigh even among the justices. Justice Marshall wrote thirteen opinions. Chief Justice Warren, Justice Douglas, and Justice Brennan each wrote twelve, and they were followed by Justice Black and Justice Stewart with eleven each, and Justice Harlan and Justice White with ten each. Justice Fortas wrote eight. Dissenting opinions totaled 77 by comparison with 79 in the 1967 term and 74 in the term before that. Justice Black with eighteen dissenting opinions displaced Justice Harlan with sixteen as the champion dissenter. They were followed by Justices Stewart (thirteen), Douglas (nine), White (eight), Fortas (six), (four), Marshall (two), and Brennan (one). The Court adjourned on June 23, 1969, the latest date since the June 25 adjournment in 1962.
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