scholarly journals Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past

2018 ◽  
Author(s):  
Josh Chafetz
Keyword(s):  
Supreme Court ◽  
Bush Administration ◽  
The Other ◽  
Historical Narratives ◽  
Political Actors ◽  
Judicial Appointments ◽  
The Past ◽  
The Supreme Court ◽  
History Of ◽  
Usable Past

131 Harvard Law Review 96-132 (2017)Recent years have seen intense conflicts over federal judicial appointments, culminating in Senate Republicans' 2016 refusal to consider the nomination of Merrick Garland to the Supreme Court, Senate Democrats' 2017 filibuster of Neil Gorsuch's nomination to the same seat, and Republicans' triggering of the "nuclear option" to confirm Gorsuch. At every stage in this process, political actors on both sides have accused one another of "unprecedented" behavior.This Essay, written for the 2017 Supreme Court issue of the Harvard Law Review, examines these disputes and their histories, with an eye toward understanding the ways in which discussions of (un)precedentedness work in constitutional politics.Part I examines recent conflicts in judicial appointments, beginning in the George W. Bush administration and running through the 2017 elimination of the filibuster for all nominees. It focuses on the discourse surrounding these reforms, noting that at every turn, accusations of "unprecedented" behavior have flown in all directions and have served as justifications for countermeasures, which are in turn characterized as unprecedented. Part II then reconstructs two pasts — two precedential pathways — for recent events, one drawing on the history of legislative obstruction and the other on the history of confirmation politics. The purpose of these historical narratives is not to adjudicate particular claims of unprecedentedness but rather to highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past. The Essay concludes with some thoughts about why we might prefer some available pasts to others.

The Supreme Court, Ideology, and the Decision to Cite or Borrow from Amicus Curiae Briefs

2021 ◽  
pp. 1532673X2110321
Author(s):  
Kayla S. Canelo
Keyword(s):  
Interest Groups ◽  
Supreme Court ◽  
The Other ◽  
Amicus Curiae ◽  
Political Actors ◽  
The Supreme Court ◽  
Extreme Groups ◽  
Insight Into

Scholars have sought to understand the dual characterization of Supreme Court justices as both legal and political actors. One way to further uncover this complexity is to assess how the justices engage with the interest groups that file amicus curiae or “friend-of-the-Court” briefs. Scholars have revealed that the justices often “borrow language” from these briefs in their opinions. However, much less often, they cite the amici. These two uses are distinct in that one is revealed to the reader while the other is not. So which interest groups do the justices decide to cite and which do they borrow language from? I find the justices borrow more language from ideologically similar interests, but that ideology plays a less central role in the decision to cite. Specifically, I find that the justices are less likely to cite briefs filed by ideologically overt interests, but this only extends to the most ideologically “extreme” groups. Further, the justices are not more likely to cite briefs filed by interests that are ideologically similar to their own preferences. These findings provide insight into how the justices balance policy and legitimacy goals.

Appointment of Judges to the Supreme Court of India

2018 ◽  
Keyword(s):  
Supreme Court ◽  
South Asian ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Judicial Appointments ◽  
The United Kingdom ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
History Of

In Supreme Court Advocates-on-Record Association v. Union of India [(2016) 5 SCC 1], a five-judge bench of the Supreme Court struck down the 99th Amendment to the Constitution and the National Judicial Appointments Commission (NJAC) Act, 2014, which replaced the existing collegium system with the NJAC, a new bipartisan model for appointing judges. This edited volume uses the judgment in the NJAC Case as a springboard to address the politics, doctrine, and developments pertaining to judicial appointments in India. It critically examines fundamental constitutional concepts such as rule of law, separation of powers, basic structure, and judicial independence which formed the basis of the judgment. It provides a rich and detailed history of post-Independence appointment of judges to locate the NJAC Case in its proper constitutional context. It also analyses reforms to judicial appointments in key South Asian and common law jurisdictions to understand what appointments in India might look like in the future. The volume has 21 essays across three parts—Part I provides an analysis of judicial appointments in India from the time prior to Independence to the present day, Part II analyses constitutional principles and their application in the NJAC Case, and Part III is a comparative enquiry into appointments processes in the United Kingdom, South Africa, Canada, Pakistan, Sri Lanka, and Nepal.

5 The Judges of the Supreme Court

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Financial Crisis ◽  
Supreme Court ◽  
Advisory Board ◽  
Irish Society ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
History Of ◽  
Eligibility Requirements

This chapter begins by considering the eligibility requirements for appointment to the Irish Supreme Court before tracing the history of the system for selecting the judges. Particular attention is given to whether the judges selected have been politically independent. The work of the Judicial Appointments Advisory Board is analysed, as are the current proposals to create a Judicial Appointments Commission and a Judicial Council. A section charts the rise in judicial salaries and examines the controversy over the constitutionality of asking judges to take a pay cut after Ireland’s financial crisis in 2008. After a brief section on retirement ages there is a narrative of who has succeeded whom in the Supreme Court from 1924 until today (57 judges in all). The chapter concludes with an analysis of the extent to which Supreme Court judges have been representative of Irish society.

A Committed Judiciary

2018 ◽  
pp. 18-30
Author(s):  
T.R. Andhyarujina
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Judicial Independence ◽  
Tipping Point ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
History Of

The tipping point in the history of judicial appointments in India was the judgment of the Supreme Court in Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). In this essay that spans the tumultuous period between this judgment and the end of the Emergency (in 1977) when Indira Gandhi was prime minister, the author demonstrates how judicial appointments became a proxy for a larger battle for control of the Constitution. Arguing that the independence of the judiciary was imperilled beyond redemption, the author carefully traces the pattern of executive interference up to and after the proclamation of Emergency. This essay argues that the severe blow dealt to judicial independence in this period, in a way, determined the course of how the process for judicial appointments was shaped in future decades.

The Msiza-case: the perpetuation of injustices by the miscalculation of “just and equitable” compensation

2019 ◽  
Vol 8 (2) ◽  
pp. 211-226
Author(s):  
Elmien Du Plessis
Keyword(s):  
Supreme Court ◽  
Land Reform ◽  
Market Value ◽  
Land Claims ◽  
The Past ◽  
Reform Legislation ◽  
The Supreme Court ◽  
Title Deed ◽  
History Of ◽  
Court Of Appeal

Abstract In 1998 Mr Msiza, a labour tenant, successfully instituted a claim in terms of land reform legislation (the Land Reform (Labour Tenant) Act) for ownership of the land that he and his father occupied for six decades. In terms of this legislation, when the labour tenant is awarding the land, the owner of the land must be compensated for the loss of the land. In 2004, the Land Claims Court confirmed the award of land and ordered the state to make sure that Mr Msiza gets a title deed for the land. The case was heard again in 2016 in the Land Claims Court, where the court this time examined the question of compensation to be paid to the owner. The Land Claims Court ruled that the Constitutional compensation requirement is “just and equitable” compensation, and awarded less-than-market-value compensation by subtracting a seemingly arbitrary amount from the market value of the land. This decision was overturned in 2017 when the Supreme Court of Appeal ruled that the the just and equitable question were already considered in the calculation of market value, and therefore ruled that no amount be deducted from what the valuers calculated to be market value. The handling of the case, and the different approaches from the two courts, is a symptom of the uncertainty that judges are confronted with when they have to calculate “just and equitable” compensation. A history of the case will reveal that the inability to properly valuate the land, perpetuated the injustice that Mr Msiza is facing, of not having the land registered in his name, despite a valid award in terms of land reform legislation. This paper will show how the compensation requirement is a hurdle to Mr Msiza receiving the title deed to his land. By making use of the valuation reports and the court materials, the paper will endeavour to indicate what a better outcome would be, by focussing on the calculation of “just and equitable” compensation. The paper will argue for a purposive approach when interpreting legislation dealing with compensation, where the Constitutional purpose to “heal the divisions of the past” should play a central role in land reform cases.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

O ENSINO RELIGIOSO EM QUESTÃO

2018 ◽  
Vol 9 (21) ◽  
pp. 459
Author(s):  
Mauro Rocha Baptista
Keyword(s):  
Supreme Court ◽  
Religious Education ◽  
Common Core ◽  
Historical Perspective ◽  
National Curriculum ◽  
The Other ◽  
Federal Constitution ◽  
The Supreme Court ◽  
The Common

Neste artigo analisamos a relação do Ensino Religioso com a sua evolução ao longo do contexto recente do Brasil para compreender a posição do Supremo Tribunal Federal ao considerar a possibilidade do Ensino Religioso confessional. Inicialmente apresentaremos a perspectiva legislativa criada com a constituição de 1988 e seus desdobramentos nas indicações curriculares. Neste contexto é frisado a intenção de incluir o Ensino Religioso na Base Nacional Curricular Comum, o que acabou não acontecendo. A tendência manifesta nas duas primeiras versões da BNCC era de um Ensino Religioso não-confessional. Uma tendência que demarcava a função do Ensino Religioso em debater a religião, mas que não permitia o direcionamento por uma vertente religioso qualquer. Esta posição se mostrava uma evolução da primeira perspectiva histórica mais associada à catequese confessional. Assim como também ultrapassava a interpretação posterior de um ecumenismo interconfessional, que mantinha a superioridade do cristianismo ante as demais religiões. Sendo assim, neste artigo, adotaremos o argumento de que a decisão do STF, de seis votos contra cinco, acaba retrocedendo ante o que nos parecia um caminho muito mais frutífero.Palavras-chave: Ensino Religioso. Supremo Tribunal Federal. Confessional. Interconfessional. Não-confessional.Abstract: On this article, we analyze the relation between Religious education and its evolution along the currently Brazilian context in order to understand the position of the Supreme Court in considering the possibility of a confessional Religious education. Firstly, we are going to present the legislative perspective created with the 1988 Federal Constitution and its impacts in the curricular lines. On this context it was highlighted the intention to include the Religious Education on the Common Core National Curriculum (CCNC), which did not really happened. The tendency manifested in the first two versions of the CCNC was of a non-confessional Religious Education. A tendency that delineated the function of the Religious Education as debating religion, but not giving direction on any religious side. This position was an evolution of the first historical perspective more associated to the confessional catechesis. It also went beyond the former interpretation of an inter-confessional ecumenism, which kept the superiority of the Christianity over the other religions. As such, in this paper we adopt the argument that the decision of the Supreme Court, of six votes against five, is a reversal of what seemed to be a much more productive path on the Religious Education.Keywords: Religious Education. Brazilian Supreme Court. Confessional. Inter-confessional. Non- confessional.Enviado: 23-01-2018 - Aprovado e publicado: 12-2018

Summary of Results

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Government Agencies ◽  
Property Law ◽  
Trademark Law ◽  
Intellectual Property Law ◽  
The Past ◽  
The Supreme Court ◽  
The Government ◽  
Networked Economy

The persuasive force of the accepted account’s property logic has driven antitrust and intellectual property law jurisprudence for at least the past three decades. It has been through the theory of trademark ownership and the commercial strategy of branding that these laws led the courts to comprehend markets as fundamentally bifurcated—as operating according to discrete types of interbrand and intrabrand competition—a division that had an effect far beyond the confines of trademark law and resonates today in the way government agencies and courts evaluate the emerging challenges of the networked economy along the previously introduced distinction between intertype and intratype competition. While the government in its appeal to the Supreme Court in ...

Video as Text/Archive

2019 ◽  
pp. 778-797
Author(s):  
Bennett Capers
Keyword(s):  
Supreme Court ◽  
Court Case ◽  
The Supreme Court ◽  
Surveillance Cameras ◽  
American Law ◽  
Supreme Court Case ◽  
History Of ◽  
Constitutional Protections

This chapter focuses on a few issues related to video evidence and law, especially with respect to American law. The first issue is the history of the use of video evidence in court. The second issue involves constitutional protections regarding the state’s use of surveillance cameras. The chapter then turns to the Supreme Court case Scott v. Harris to raise concerns about the use of video evidence as not just proof but “truth.” These are of course just a sampling of the issues that the topic of video evidence could raise. The hope is that this chapter will spur further inquiry on the part of the reader.

scholarly journals The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 47
Author(s):  
Sandrine Brachotte
Keyword(s):  
United Kingdom ◽  
Cultural Studies ◽  
Cultural Diversity ◽  
Supreme Court ◽  
Legal Pluralism ◽  
The Other ◽  
The United Kingdom ◽  
Arbitration Clause ◽  
The Supreme Court ◽  
Employment Equality

This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith.

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