Major Players in the Lower Courts

Cases’ contours are primarily defined by the time they reach the Supreme Court.  These contours take shape through litigation in lower courts.  In the lower courts, judges make decisions that are by and large upheld as they are generally are left untouched.  Even if appeals courts wanted to take a larger role in the universe…

Is a Recipe for Justice Kennedy a Recipe for Success?

The puns are endless with a case that goes by the name Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The stakes though are no laughing manner. If the Court decides all of the issues brought up in the case, boundaries of the First Amendment doctrine may be rewritten as could the defining lines between religious…

Name Dropping in Oral Argument

Supreme Court oral argument is the setting where attorneys get to present their cases to the justices. It is a chance for justices to ask questions and for attorneys to convey important information; especially information that might not be contained in the briefs.  Oral argument also functions as a setting for dialogue.  In this respect,…

A Record Set by the OSG During the Obama Years

The Solicitor General’s Office (OSG) has a special relationship with the Supreme Court.  In the role of adviser the Solicitor General is often referred to as the 10th Justice.  The OSG enjoys much higher than average success in bringing cases to the Court and is even asked to give its opinions on whether the Court should…

The Strategic Right – Oral Arguments at the Beginning of the 2017 Term

Several possible facets of the justices’ new oral argument strategies became apparent during the first week of oral arguments for the 2017 Supreme Court term.  The Court began with a series of high-profile cases – perhaps none as discussed and hotly contested as Gill v. Whitford which looks at gerrymandered voting districts in Wisconsin.  The…

The Court’s Recent Lack of Support for the Federal Government’s Agenda

This is the first of a series of two posts examining the federal government’s litigation in the Supreme Court. While this post looks at the last several terms of government litigation, the next will analyze the government’s upcoming cases.   The federal government, through the Office of the Solicitor General (OSG), is the most frequent…

Crunching Data From this Past Term

It has been almost two months since the completion of the Supreme Court’s 2016 term. Scholars and analysts have pored over Court’s decisions. SCOTUSBlog released its Stat Pack which contains many interesting statistical trends and details from the term.  Each term, a group of professors now organized through the Washington University in St. Louis School of…

Loud Voices From Below

The Supreme Court only takes a small fraction of cases petitioned to it every year and there is no perfect formula for ensuring a case makes its way to the Court.  There are, however, several signals that can help a case along the way.  Much of what matters has to do with uniformity in case…

An Uphill Battle for the Court’s Liberals

“[I]f a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs…

A Matter of Life and Death

The Supreme Court may be on summer recess but that doesn’t mean the justices are free from work-related obligations.  Throughout the year some of the most significant decisions the justices make are performed unilaterally.  The justices are each assigned to a certain geographic region associated with a judicial circuit or circuits and by virtue of…

Justice Gorsuch: What We Know and What We Should Expect

Justice Gorsuch is just over two months into his tenure on the Supreme Court.  There are many unknowns regarding how he will judge at this level.  The cases he will decide on the Supreme Court are predominately different from those he saw on the 10th Circuit.  There is also an intuition that circuit court judges’…