empiricalscotus

[empiricalscotus]

The Real A.C.B.

[This previously ran on Legalytics Substack] Supreme Court Justice Amy Coney Barrett, once celebrated as a stalwart conservative and a crowning achievement of the Trump presidency, now finds herself under fire from the very base that championed her confirmation. Her recent vote in Department of State v. AIDS Vaccine Advocacy Coalition, where she sided with Chief Justice John Roberts and the…

[empiricalscotus]

Divided by Principle: How Justices Barrett and Jackson are Shaping the Future of Constitutional Law

Supreme Court oral arguments are more than just legal debates—they’re a high-stakes battleground where justices reveal their philosophies, test the strength of arguments, and sometimes, subtly try to persuade their colleagues. Among the most compelling contrasts on the bench today are Justices Amy Coney Barrett and Ketanji Brown Jackson, two sharp legal minds who approach cases from strikingly…

[empiricalscotus]

Faith and the First Amendment in the Supreme Court: The Oklahoma Charter School Showdown

The U.S. Supreme Court is set to hear a groundbreaking case that could pave the way for the nation’s first religious charter school. At the heart of the dispute is St. Isidore, a Catholic online school in Oklahoma, challenging a state ruling that blocked its bid to operate as a charter school, raising critical questions about the intersection of religious freedom and public education…

[empiricalscotus]

Special Report: TikTok Supreme Court Arguments

Last week the Supreme Court listened to arguments on the constitutionality the Protecting Americans from Foreign Adversary Controlled Applications Act, which would require TikTok to shut down unless its Chinese parent company, ByteDance, sells it by January 19, 2025, citing national security concerns. TikTok and its users argue that the law infringes on their First Amendment rights, while the…

[empiricalscotus]

The Universe of TikTok v. Garland in a Nutshell

Getting ready for next week’s oral arguments? Here’s everything you need to know. Top line case summary: The Supreme Court will hear oral arguments on January 10 in TikTok’s appeal against a federal law requiring the app to cease U.S. operations unless its Chinese parent company, ByteDance, divests its U.S. arm by January 19. The expedited case, fast-tracked without initial input from the Biden…

[empiricalscotus]

The Changing Face of Supreme Court Oral Arguments

Background Perhaps more than any other Supreme Court tradition, oral arguments have gone through significant changes over the years. The Supreme Court is as old as the nation even though the first oral arguments were not held until the 1790’s. While presently it may feel like oral argument practice and procedure are relatively static. There have been many historic changes including drastically…

[empiricalscotus]

All About United States v. Skrmetti

Overview Case description: This case concerns a Tennessee law that bans medical treatments for gender dysphoria in transgender adolescents, prohibiting them based on the minor’s sex and gender identity. The law has been challenged on the grounds that it discriminates based on sex and transgender status, and its validity is contested amid a wave of similar bans in other states, creating legal…

[empiricalscotus]

Introducing Legalytics Substack

What is Legalytics? There are tons of talking heads that provide legal analysis. You can turn to the left, right, and center and there are pundits who speak to your political profile. Legalytics is something different. It aims to provide balanced analysis of the law but equally important is that it strives to provide a different perspective than you will find anywhere else. The legal industry…

[empiricalscotus]

The Final Five? Trump’s Next Potential Nominees to the Supreme Court

Former President and current President Elect Donald Trump appointed 234 judges during his first term. Three of these were to the United States Supreme Court.  This is quite unique on several levels. Only two presidents, Ronald Reagan and Richard Nixon, had three or more confirmed nominees since 1950 (Reagan had four in two terms, Nixon had four in one). Trump has the ability to reach and surpass…

[empiricalscotus]

Mirroring the Justices’ Styles

Writing Style is clearly important to the Supreme Court Justices.  Not only are the justices cognizant of the writing styles in briefs, but they are also attuned to the writing styles of other judges and justices. Justices past and present discussed this and other matters in interviews with legal writing specialist Bryan Garner for the Scribes Journal over a decade ago. Some of the key takeaways…

[empiricalscotus]

How the Newest Supreme Court Justices Compare. A Look at Each of Their Respective First Two Years on the Court

For 11 years between 1994 and 2005 there was no turnover in membership on the Supreme Court. There were four changes to the Court’s composition between 2005 and 2010 and then another four changes between 2017 and 2022. Of the four newest justices on the Court, three were appointed by President Trump and one by President Biden. In the most recent Supreme Court term, Justices Neil Gorsuch, Amy…

[empiricalscotus]

Using Network Analysis to Gauge the Justices’ Relative Importance in Oral Arguments

Anecdotes and research support the notion that oral arguments do not often influence case outcomes. Chief Justice John Roberts said as much in an interview with Bryan Garner for the Scribes Journal in 2010: “The oral argument is the tip of the iceberg — the most visible part of the process — but the briefs are more important.”  In fact, a series of studies including my own work points to the…

[empiricalscotus]

What Oral Argument Engagement Tells Us About Supreme Court Opinion Writing

Between the 2004 and 2019 Supreme Court Terms, Justice Thomas spoke in five oral arguments for a total of fewer than 200 words. In that window of time he chose not to speak in over 1,100 arguments.  In that same timeframe, Justice Breyer spoke over 320,000 words at oral argument.  During those same years, Justice Thomas authored a combined 417 majority and separate opinions compared with Justice…

[empiricalscotus]

Are the Justices’ Opinions Emotionally Charged and Does it Matter?

A Sunday morning article in the New York Times begins, “Last February, Chief Justice John G. Roberts Jr. sent his eight Supreme Court colleagues a confidential memo that radiated frustration and certainty [referring to the D.C. Circuit’s decision in the Donald Trump immunity case].”  The article continues describing Roberts’ Feb. 22nd memo to the justices, “He wrote not only that the Supreme…

[empiricalscotus]

Searching for the Best Opinions: Text Analyses from the 2023/2024 SCOTUS Term

When lawyers think about legal writing, they tend to focus on their submissions to courts.  Some of my work shows that writing quality matters from trial courts on up.  Lawyers aren’t the only court actors who care about their legal writing though. Lawrence Baum and others (including Judge Posner) have looked at judicial writings and judicial audiences with an eye towards judges’ goals when…

[empiricalscotus]

Which Justice Writes the Most Important Decisions on the Supreme Court?

Chief Justice John Roberts heralded the significance of one of the biggest cases from last term, Trump v. United States, with the words, “This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? Our Nation has never before needed an answer. But in addressing that question today, unlike the political branches and…

[empiricalscotus]

When the Stars Don't Align for Justices Kavanaugh and Roberts

In an almost declaratory manner as he singularly conveys on the Court, Chief Justice John Roberts expounded in the majority opinion in Trump v. United States, “[t]his case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency…Doing so requires careful assessment of the scope of Presidential power under the Constitution. We…