Week of 4/25/2022 In Review

(1) The week began with a few statistical takeaways from the Bremerton oral arguments: Justice Kavanaugh spoke the most followed by Justices Breyer and Sotomayor. CJ Roberts spoke least overall. Justice Alito only spoke during Respondent’s turn and Justices Kagan and Sotomayor only spoke during Petitioner’s turn.

If we focus on the polarity or positive/negative tone of their speech Gorsuch was most positive during respondent’s argument and least positive during petitioner’s argument.

Petitioner’s

Kavanaugh was fairly positive during petitioner’s argument but on the negative end of respondent’s argument. Breyer and Barrett were in the middle for both.

Respondent’s

In terms of word frequency the justices had differing focuses ranging from “coach” and “school” for Alito, to “coercion” for Gorsuch, “right” and prayer” for Breyer, “government” for Thomas, and “school” and “duty” for Sotomayor.

I don’t expect a decision in this case until late in June but this raises some high stakes concerns for how the Establishment Clause works in schools and as I tell my students, this could change the entire legal landscape and might well do so with the current Court’s composition.

(2) If you’re like me and interested in the composition of the Supreme Court then this might be of interest. In a recent post I wrote about how Supreme Court clerks come from a relatively narrow range of law school and how becoming a Supreme Court clerk is almost a requisite now to sitting on the Supreme Court. The logical conclusion is that Supreme Court Justices themselves graduate from a few prestigious law schools — mainly from Harvard and Yale. Looking at the data of all Supreme Court nominees since 1900 a few conclusions can be drawn. There is a wide swath of schools that generated Supreme Court nominees over this period, 27 to be exact. Five nominees including, most recently Justice Byrnes nominated in 1941 did not attend a law school. Even with the large set of schools nominees attended, 38.5% of nominees since 1900 graduated from either Harvard or Yale Law School. Take a look at the graph for more.

(3) The elite breed the elite. This is becoming more and more evident in law. I’m going to leave out the normative repercussions for a second and just focus on the data. I’ve recently written about the importance of attending a top ranked law school in order to achieve a federal clerkship and the importance of law school and clerkship on the possibility of a nomination to the Supreme Court. This is one clear way that our earlier experiences in life may have profound effects down the line. In a paper I wrote not long ago with Eric Segall (a prof at Georgia State Law School) we looked at who is getting hired at top ranked law schools. We found that in order to teach at a top tier school you almost have to attend one of these schools as a student. We have multiple data points to show this including in the graph below. If you would like to read our entire paper you can find it here: https://lnkd.in/d2Nt2hxD and if you would like to hear Eric and I discuss the paper with University of Kentucky law school prof Brian Frye you can find the recording here: https://lnkd.in/dDnzDvdZ.

(4) In academia it’s called plagiarism. In the legal sphere, it is looked at as something less egregious. In fact, legal opinions that copy language from briefs fall into a gray area that isn’t always discussed. Lawyers love when the language they use in briefs is regurgitated in opinions. It shows that the Court agrees with your points to such an extent that the judge(s) are willing to adopt your language. For that reason, seldomly if ever does anyone from the legal community call this into question. This makes life easier for judges as well. Those with dockets that never end can benefit from savvy lawyering and writing that can be adopted in opinions. Many judges preach the trope of wanting lawyers to put themselves in the shoes of judges when deciding on the narrative of the case and how to illuminate the significant points. This still calls into question if judges are doing their diligence in adopting language from briefs. Are clerks or the judges themselves researching the points they include? For instance if an attorney says there are only two cases on point in this instance, does someone from the judge’s chambers verify this before inserting this into an opinion. Decisions to include inaccurate language can lead to unintended consequences.
Supreme Court Justices have more resources than other federal judges so they have access to research tools that others lack. Even so, I found some instances of vast amount of language shared between briefs and opinions. Here are a few examples. In these examples, the right columns are Supreme Court opinions and the left columns contain language from the merits briefs. If you’re interested in reading more about this issue, I wrote about it extensively in a piece in the Journal of Appellate Practice & Process: https://lnkd.in/gyNTkmJB