• Professor Carolyn Shapiro

    Carolyn Shapiro

    Associate Professor of Law and Director of the Institute on the Supreme Court of the United States (ISCOTUS)

    – Go to her faculty biography

    – Go to her publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/carolyn_shapiro/

    What’s Going On at the Supreme Court?

    by  • May 21, 2013 • Faculty Commentary • 1 Comment

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]


    Yesterday, the Supreme Court issued decisions in four cases.* All but one were unanimous as to result, and that one, City of Arlington v. FCC, though important in administrative law, is not a case most members of the public are likely to be following. This may lead some people to wonder what the Supreme Court is doing and when they will issue decisions in the big cases from this Term — the gay marriage cases (Perry and Windsor), the affirmative action case (Fisher), and the Voting Rights Act case (Shelby County), to name a few.

    The short answer is that the dispositions of these cases will almost certainly be announced before the end of June, when the Court goes into summer recess. I say “almost certainly” because there is at least one other, very remote, possibility: Occasionally a case is held over for reargument in the fall. This happened with Citizens United.

    At this time of year, the Court generally announces (or “hands down”) opinions on Mondays (next week it will be Tuesday due to Memorial Day), and it sometimes adds an additional hand-down days, usually Thursdays, towards the end of the Term. But the Court never announces ahead of time what opinions it will be issuing on a particular hand-down day. So between now and the end of June, every hand-down day has the potential to be a biggie.


    * Read Oyez’s overviews of the cases decided this week:
    – Sebelius v. Cloer
    – Metrish v. Lancaster
    – PPL Corporation v. Commissioner of Internal Revenue
    – City of Arlington, TX v. FCC

    A Hint on Hollingsworth from a Criminal Case?

    by  • April 30, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]


    Case: Boyer v. Louisiana

    At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been “properly granted” and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four — it takes four votes to grant certiorari — would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG’ed a case involving a criminal defendant’s challenge to his conviction over the dissents of the four liberal justices.

    There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices — generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG’ed Hollingsworth should not lead to the conclusion that it won’t.

    Justice Breyer Visits Chicago-Kent

    by  • October 29, 2011 • Multimedia • 0 Comments

    By Carolyn Shapiro


    Chicago-Kent was honored to welcome United States Supreme Court Justice Stephen G. Breyer to the law school on September 12 to speak at the inaugural program of our new Institute on the Supreme Court of the United States.

    In his thought-provoking, 90-minute presentation to students, faculty, alumni and friends, Justice Breyer addressed the themes set forth in his book Making Our Democracy Work: A Judge’s View, and he answered questions posed by the audience.

    Access links to photos and Justice Breyer’s interviews with Chicago media here. View all 7 parts of Justice Breyer’s talk below:

     

    Kagan and the Cert Pool

    by  • June 7, 2010 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro


    There has been some commentary on the web about whether Elena Kagan should or will join the cert pool if she is confirmed.

    As background: The justices in the cert pool divide the 8000 (or so) cert petitions filed with the Court each year among their chambers.  Within each chambers, one law clerk is assigned to each of that chambers’s petitions, and the law clerk writes a memo to the entire pool.  Justice Stevens, whom Kagan has been nominated to replace, has never been a member of the cert pool, and for many years he was the only one who did not participate.  (His law clerks reviewed all cert petitions themselves.)  Recently, Justice Alito has also opted out of the pool.  Justice Sotomayor and Chief Justice Roberts have joined it.  Justice Marshall, for whom Kagan clerked, did not join the cert pool.

    The cert pool has been the subject of much criticism, often from those who argue that the pool gives law clerks too much influence.  I have argued elsewhere, however, that the historical evidence shows that law clerks have long been involved in the cert process, beginning long before the creation of the pool.  (This historical evidence, as well as some criticism of the cert pool, is set forth in two recent books about Supreme Court law clerks: Sorcerers’ Apprentices: 100 Years of Law Clerks at the US Supreme Court by Artemus Ward and David Weiden, and Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk by Todd Peppers.)  Nor do I think that there is good evidence either that the cert pool is primarily responsible for the recent drop in the number of cases that the Court hears or that cases are denied that “should” have been granted based on some objective set of criteria.

    So should Justice Kagan join the pool?  On this point, there are good arguments going both ways.  On the one hand, there are a colossal number of cert petitions filed each year (more than 7700 in the 2008 Term, which is actually a decrease from recent years), and reviewing all of them in one chambers will be extraordinarily time-consuming.  Especially in a justice’s first term, that may not be the best use of her (or her law clerks’) time.

    On the other hand, it is undoubtedly valuable for each cert petition to be reviewed by more than a single law clerk. There are a variety of ways to ensure that, of course – including creating two parallel cert pools, or assigning each petition to two law clerks within the existing pool.

    Ultimately, however, I believe that aspects of the cert criteria and the culture of the cert pool are more problematic as the pool itself.  The culture of the cert pool makes it easier for law clerks to recommend that a case be denied rather than granted.  And the cert criteria themselves are unduly narrow, focusing, for example, on formal conflicts between circuits but not on less explicit inconsistencies in how courts apply the same legal standard.

    From this perspective, a Justice Kagan could be quite influential on the cert process if she does join the pool.  She could, for example, review cert memos with a particular eye towards issues that she thinks the Court should address or with a critical view of the way the law clerks apply the Court’s cert criteria.  As a member of the pool, she would be in a position to push for changes in the way the pool operates. For example, perhaps law clerks should be encouraged to apply somewhat broader criteria, erring on the side of recommending that a case be granted or at least seriously considered.  Such cases would undoubtedly receive increased scrutiny from many chambers, and many of them would probably still be denied.  But it would be more likely that some cases would be granted that would, under the current system be denied. Likewise, as a member of the pool, Justice Kagan would be in a better position to push for structural reforms (such as the creation of two parallel pools) than as an outsider.  In my mind, therefore, it is more important for her to take a critical look at the criteria the Court uses to evaluate certworthiness, the way those criteria are applied, and the way the cert process (including the pool) operates, than whether she approaches the cert process from inside or outside the pool.

    Knowing Ideology in Judging When We See It

    by  • May 7, 2010 • Faculty Commentary, Scholarship • 0 Comments

    By Carolyn Shapiro


    It appears likely that President Obama will soon announce his pick to replace Justice John Paul Stevens on the U.S. Supreme Court.  As I argued shortly before Justice Stevens announced his retirement, claims about “neutral umpires” notwithstanding, judging on the Supreme Court inevitably (sometimes) involves political judgments.  At the same time, however, I do not believe that ideology or political judgments explain everything that the Supreme Court does, although there is a powerful strain of scholarship in political science that effectively makes this claim.  This view, championed in particular by Harold Spaeth and his co-author Jeffrey Segal, is known as the “attitudinal model.”  In an my article, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court, 60 Hastings L. J. 477 (2009), I criticized the ways in which Spaeth identifies the content of the cases that he studies, in particular omitting information about the legal content of the cases.  In my more recent article, The Context of Ideology: Law, Politics, and Empirical Legal Scholarship, 75 Missouri L. Rev. 79 (2010), and recently posted on SSRN, I argue that attempts by Spaeth and other empirical scholars to identify the ideological nature of Supreme Court cases has focused on the wrong metrics.  Rather than try to identify how liberal or conservative a given case is, as empirical scholars generally do, we would be better off trying to identify whether ideology played a particularly strong role in the case at all, that is, whether the case was ideologically salient.  The abstract of the article is below:

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    Supreme Court Law Clerks and Ideology

    by  • April 13, 2010 • Scholarship • 0 Comments

    By Carolyn Shapiro


    I argued in a prior post that it would be refreshing and valuable for a Supreme Court nominee to speak frankly about the role that ideology, or political judgments, must inevitably play in some judicial decision making, especially on the Supreme Court.  In a recent review essay, The Law Clerk Proxy Wars: Secrecy, Accountability, and Ideology in the Supreme Court, appearing in the Florida State University Law Review, I argue that public anxiety over whether the justices are allowing ideology to inappropriately affect their judgments is reflected in frequently-expressed concerns about whether law clerks have undue influence on their justices.  The abstract for the piece is below:

    This piece provides an in-depth review and analysis of two recent books about Supreme Court law clerks, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, by Todd C. Peppers, and Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court, by Artemus Ward and David L. Weiden. In addition, however, the essay addresses a question so obvious that it is rarely asked – why is there so much curiosity about Supreme Court law clerks in the first place? In the essay, I analyze a widespread concern – and one discussed in both books – that law clerks have “too much” influence or even that they are the real decisionmakers on the Court. I argue that in fact this concern is a proxy for two important questions: how does the Court decide what cases to take and what role does (and should) ideology play in the work of the Supreme Court.

    With respect to the process of selecting cases to review on the merits – the certiorari (cert) process – I argue that a careful analysis of the process reveals that the likelihood is quite low that the Court denies cert petitions the justices would grant if they reviewed the petitions themselves instead of relying largely on their law clerks. I also argue that with respect to the cert process, the Court’s extreme secrecy does not serve it well. More information about how the process works and why the Court denies or grants cert in particular cases or types of cases would benefit the not only the bar and the public, but also the Court itself.

    Second, I argue that concern about undue ideological influence by law clerks is really a displaced anxiety about the much thornier question of the appropriate role of ideology in Supreme Court judging. This anxiety arises in part from mixed messages about whether the Court is a political entity making important decisions about subjects on which there may not be social consensus or whether it is, as Chief Justice Roberts put it at his confirmation hearings, a neutral umpire calling balls and strikes. People seek to alleviate their anxiety by trying to figure out how the justices do their work – leading to the intense curiosity about what law clerks do. More candor about the inherently political nature of at least some of the Court’s work might not entirely eliminate the anxiety, but it would refocus it from the largely tangential question of law clerk influence onto difficult but crucial questions about the relationship between Supreme Court jurisprudence and ideology and about the proper role of the Court in our democracy.

    The Coming Confirmation Hearings

    by  • April 7, 2010 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro


    With Justice Stevens signaling that he is likely to step down at the end of this current Supreme Court Term, speculation about who President Obama might appoint to replace him is legion.  Rather than join in that speculation, however, I want to raise the question of the role of ideology in judging, particularly on the Supreme Court, and the disingenuous way that ideology is discussed – or rather, disavowed – during confirmation hearings.  Chief Justice Roberts’ invocations of “neutral umpires” notwithstanding, judging is not a science.  There is often no “right” answer to a question – especially to the types of questions confronted by the Supreme Court – in the sense that there is no answer that can be arrived at through the use of pure logic.  Such questions might involve the meaning of the Due Process Clause, the scope of the Equal Protection Clause, or the application of a precedent like Brown v. Board of Education to contemporary efforts by school districts to voluntarily integrate.  The key legal texts – the Constitution and Brown itself – do not inherently provide an answer.  A justice must apply some kind of understanding of the broader meaning of those texts.  Doing so is not illegitimately activist.  It is inevitable.  This does not mean that justices should simply impose their policy preferences without regard to legal sources and arguments, but it does mean that the justice’s priors – her beliefs, experiences, and views – may play a role in the analysis of those sources and arguments.

    I am hardly the first to point this out.  (Judge Posner’s recent book, How Judges Think, addresses this question in some depth.)  But in light of the (likely) upcoming confirmation hearings, the point bears emphasizing.  What we are likely to see is that whoever Obama nominates will be attacked as too ideological by at least some Republicans. And if the last several confirmation hearings are any guide, the nominee will disavow any role for political judgments in the judicial role.  It is my hope, however, that we will see something else. I believe that it would better serve the country and the Court for a nominee to discuss the way in which such judgments do sometimes come into play, to explain that that such judgments are at times both inevitable and legitimate, and to show that they are often part and parcel of legal analysis.  Perhaps most importantly, I would like to hear a nominee describe how he or she would acknowledge the presence of such political judgments without acting as an ideologue or allowing ideology to trump law.

    What we have now is, in my view, the worst of all possible worlds.  There is a reality – often acknowledged during presidential elections – that a president is likely to appoint justices whose views are generally consistent with his own.  And we have the reality – clear to anyone who is paying attention – that the Supreme Court often (although certainly not always) splits along predictable ideological lines.  But during the confirmation process, we have a widespread pretense that judging is a purely neutral intellectual exercise.  I certainly understand how we have come to this point, but I believe that it is bad for our democracy and bad for the Court’s legitimacy.  It may be fruitless to hope for a more candid discussion in today’s hyper-partisan environment, with routine Republican filibusters of even low-level presidential nominees.  But it is nonetheless the discussion that I would like to see.