The Evolution of Supreme Court Confirmation Hearings

Serena Barish is a freshman in the College who serves as an assistant editor for
the Law Review
.

On January 27, 2022, Associate Justice Stephen Breyer made the announcement that he would be retiring from the United States Supreme Court. President Joe Biden has since nominated Judge Ketanji Brown Jackson to fill his place.[1] Now, as is provided by Article II, Section 2 of the Constitution, the “Advice and Consent of the Senate” is required.[2]  Today, these words have come to mean confirmation hearings, which are scheduled to begin on March 21, 2022.[3] As it stands, the Democratic Party has the ability to confirm Jackson even if no Republican Senators vote to do so, due to Vice President Kamala Harris’s tie-breaking vote.[4] Still, these hearings will force the American public to reckon with the partisanship and bias that confirmation hearings have come to signify.

Confirmation hearings’ inherent tension is underscored by their history. Supreme Court confirmation has not always been so contentious. In fact, there is nothing written into the Constitution about holding confirmation hearings specifically. The first public confirmation hearing was not held until 1916, when Louis D. Brandeis was nominated for the Supreme Court. Brandeis was a controversial figure due to his legal activism and being the first Jewish nominee for this position.[5] In this way, Justice Brandeis distinctly demonstrates the two leading factors that have transformed confirmation hearings into the calamity that they are today: politics and hostility. Now, confirmation hearings resemble a battle, with these forces as their defining feature.

Political division is one of the main tensions at play in Supreme Court confirmation hearings. Despite the claim of Alexander Hamilton that the Courts “will always be the least dangerous” branch of government, [6]  all of the early presidents demonstrated a very clear awareness that it mattered greatly who was sitting on the court.[7] More recently, Justice Scalia attributed the political divisiveness of these confirmations to the larger decisions the court is making.[8] However, Scalia’s analysis seems wildly flawed for two main reasons. First, even as the Court grew immensely in influence as the Warren Court, senators from one party were still willing to vote to confirm nominees of the other.[9] Second, the court still uses the political question doctrine, a principle of justiciability, in which the Supreme Court will decline to rule on cases that ask a question that must be answered by the political branches of government. This principle has been applied throughout the history of the Supreme Court, with Baker v. Carr (1962) often cited as the most prominent example.[10] Though the court does make decisions with great influence, this principle seems to minimize Scalia’s grounds. In this sense, it is not the power of the Supreme Court that is to blame as they avoid this overt partisanship but rather the animosity within the legislature itself.

Until the nomination of Robert Bork and Antonin Scalia, there was no perception of the existence of an “originalist” interpretation, thus a converse interpretation did not exist but was instead the default. Since their nomination, questions around the method of constitutional interpretation have become the norm.[11] In turn, opening this door seems the likely cause for the emergence of questions around the potential decision-making of justices, increasing the politicization of the entire process and thus making these divides much more sharply pronounced, as has been clearly demonstrated in recent hearings.The second clear issue that Brandeis illuminates is the role that hate plays in these hearings. The main cause of the first confirmation hearing was anti-Semitism. Justice Felix Frankfurter was the first nominee to appear in person before the committee to take questions, which was likely due to anti-Semitism as well.[12] That being said, another popular explanation for Frankfurter’s questioning was that directly before him, Hugo Black was confirmed very quickly, only for his proximity to the Ku Klux Klan to then be revealed.[13] As a result, the Judiciary Committee at the time promised to conduct a more open process to make sure they could be sufficiently informed and hopefully avoid this in the future. The potential of these hearings to be used positively is also exemplified in their use of speaking out against Clarence Thomas and Brett Kavanaugh, despite the mishandling of both of their cases. In this regard, there is a clear tension in these hearings between the preservation and prevention of hate.

Finally, this leads to the question of Judge Ketanji Brown Jackson’s hearing. It is clear that Judge Jackson is an abundantly qualified candidate. In addition to the unique experience of having worked as a public defender, she has many similar qualifications to Justice Breyer, as well as her experience on the US District Court for the District of Columbia and the US Court of Appeals for the DC Circuit.[14] However, in the polarized state of our government today, especially in the context of this larger history, even this may not be enough to garner support from the Republican Party. When she was confirmed in 2021 to the Court of Appeals, the second most powerful court in the US, Jackson received the votes of three Republican Senators. Among them was South Carolina Senator Lindsey Graham, who has now said that he is leaning towards voting against her confirmation. Graham has voted for every Supreme Court nominee since 2003, when he came to the Senate, which would make this vote fairly shocking, especially given that even Senate Minority Leader Mitch McConnell has said that Jackson is qualified to sit on the Supreme Court.[15] Republican Senator Susan Collins, who also voted to confirm Jackson previously, has said that Jackson is “impressive”, but is waiting until Senate hearings to decide how to vote.[16] Regardless, Jackson will almost certainly be confirmed. Even still, as Ketanji Brown Jackson is the first Black woman to ever be nominated for the Supreme Court, the hate and political motivations that have led to the current status of confirmation hearings will certainly be at play in determining if she is able to get any votes from across the aisle.


[1]President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, THE WHITE HOUSE (2022), https://www.whitehouse.gov/kbj/

[2] U.S. CONST. art. 2, § 2

[3] Katie Barlow, Jackson’s nomination hearings will begin March 21. Here’s what to expect., SCOTUSblog (3 March 2022), https://www.scotusblog.com/2022/03/jacksons-nomination-hearings-will-begin-march-21-heres-what-to-expect/

[4] Id.

[5] Id.

[6] The Federalist No. 78 (Alexander Hamilton)

[7]Jeffrey Rosen, History of Supreme Court Confirmation Hearings, NATIONAL CONSTITUTION CENTER (6 September 2018), https://constitutioncenter.org/interactive-constitution/podcast/the-history-of-supreme-court-confirmation-hearings

[8] Rosen, supra note 5

[9] Id.

[10] Baker v. Carr, 369 U.S. 186 (1962)

[11] Rosen, supra note 5

[12] Id.

[13] Id.

[14] President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, supra note 1

[15] Alexander Bolton, Graham signals he’s a likely ‘no’ on Biden SCOTUS pick, THE HILL (9 March 2022), https://thehill.com/homenews/senate/597432-graham-signals-hes-a-likely-no-on-biden-scotus-pick

[16] Oma Seddiq, Susan Collins says she had a ‘lengthy and productive conversation’ with Biden’s ‘impressive’ Supreme Court nominee, INSIDER (9 March 2022), https://www.businessinsider.com/susan-collins-praises-bidens-supreme-court-nominee-as-impressive-2022-3

Retroactivity in Law Can Certain Repeal Legislation Violate the Ex Post Facto Clause?

Frank Yang is a sophomore in the college majoring Government and Linguistics with a minor in Portuguese.

There are few clauses in the U.S. Constitution that are simpler in writing than Article I, Section 9, Clause 3, which states: “No…ex post facto Law shall be passed.”[1] The provision is as comprehensive as possible, assigning an absolute prohibition on the passage of any ex post facto law. Intended to apply to both Congress and the states, Article I, Section 10, Clause 1 makes clear that “No state…shall pass any…ex post facto law.” Yet despite such ostensible simplicity, any observer or student of the law will know that there is no sentence in the black letter that does not produce complications.

From Latin, ex post facto literally translates to “from a thing done afterward.”[2] The definition furnished by Giles Jacob’s Law Dictionary of 1739, which was the standard volume of reference for its time, is equally straightforward and says: “a term used in the Law, signifying some Thing done after another Thing that was comitted [sic] before…”.[3] The principle of retroactivity in the law, and specifically retroactive punishment, is thus rendered crystal clear. The only remaining ambiguity, then, is whether ex post facto refers to criminal or civil statutes, or both.

During the drafting of the Constitution, significant debate was had over the precise boundaries of that legal principle. Specifically, the controversy surrounded the reconciliation of the debts of the states and that of a unitary federal government post-Constitution.[4] The conversation surrounding the unabridged ex post facto clause principally pitted George Mason and Patrick Henry against James Madison and Edmund Randolph, among others. Civil statutes concerning the settlement of old monies were to be forbidden under this new Constitution, therefore spelling potential financial ruin for many of the states in the union, Mason argued. Madison and Randolph’s defense hinged largely on technicality; they cited that the consequences highlighted by Mason and Henry would be staved off by provisions against bills of attainder, which were instances of “capital punishments… without any conviction in the ordinary course of judicial proceedings,” and the common understanding of ex post facto in the common law of the states.[5] Though Mason’s worries were ultimately unassuaged, Madison’s underlying premise that ex post facto implicitly applied only to crimes tended to be correct, albeit amidst an extensive back-and-forth in state courts, state legislatures, and the Supreme Court.

The parameters of ex post facto would be established by the Supreme Court shortly after the ratification of the Constitution in Calder v. Bull, defining it as:

Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.  2d.  Every law that aggravates a crime, or makes it greater than it was, when committed.  3d.  Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.[6]

When we discuss legal retroaction, it also becomes practically necessary to bring up repeal legislation. Much like the ex post facto clause of the Constitution, the intent of express repeals is perfectly plain — “that the older law shall no longer be operative.”[7]

Of course, the frequency of repeal legislation is very low, hence why the prevalence of this question is unsurprisingly rare. Between 1890 and 2009, the average number of repeals per year hovered around two; the total peaked at six in the 76th Congress of 1939 to 1941.[8] Repeals are, by their nature, immemorable; they erase an existing law turned so unpopular that a future legislature felt it necessary to address it with urgency. Their effect is, in essence, to undo unforeseen consequences of legislative enforcement. Yet the process of legislative erasure, especially when combined with the prohibition on ex post facto laws, becomes rather murky.

The chief example of this complexity is State v. Ramseur, which reached the North Carolina Supreme Court and was decided in June 2020. The case revolves around the Racial Justice Act (“RJA”) passed by the state’s General Assembly in 2010 and its subsequent repeal in 2013. Of relevance was a provision of the RJA that “designed a new substantive claim that fundamentally changes what is necessary to prove racial discrimination and, in return, provides a limited grant of relief that is otherwise unavailable,” in hopes of reducing racial bias in death penalty sentencing,[9] Defendant Andrew Darrin Ramseur, who was convicted of murder and sentenced to death, sought this newly available relief. Under the RJA, he was entitled to a hearing to determine whether racism had significantly influenced his sentencing, but before the trial court ruled on his motion, the RJA was completely repealed. The trial court thus dismissed the defendant’s claim on the basis that it was now void, and so he proceeded to sue the state on grounds of ex post facto violation. The question then arises: Is it unconstitutional to revoke a novel potential for substantive relief when such a legal avenue was not open during the course of the original trial? 

In the majority opinion, Justice Anita Earls, who is currently on President Biden’s shortlist for the Supreme Court, extensively covers this intersection of repeal legislation and ex post facto, ultimately reversing the lower court decision.[10] Citing restrictions on arbitrary and potentially vindictive legislation and citizens’ fundamental interest in the fairness of their government, the Court held that the RJA Repeal could not apply retroactively to pending motions under the RJA.[11] The concrete nature of the disadvantage handed down by the repeal, namely capital punishment, was also of great relevance, as the severity of the sentencing attached to the crime was distinctively high.[12] 

The dissent’s response to the majority opinion rested primarily on the unique situation that repeal legislation reconfigures preexisting sentences, in that it leaves the “defendant in precisely the same legal situation” as he was in when he was convicted.[13] No additional punishment was levied upon him by the RJA Repeal; the only effect was that a possible avenue of relief was erased. Furthermore, the Court’s decision impinged on the people’s authority to delineate the circumstances of the imposition of the death penalty through the General Assembly.[14]

Though this summary of the arguments on each side cannot do full justice to the nuances of the case in its entirety, it nevertheless demonstrates the myriad of technicalities involved in combining seemingly straightforward legal acts and clauses. What State v. Ramseur reveals are the complex questions that arise when criminal proceedings and legislative history follow parallel but incongruous timelines. The backlog and delay that are unwanted but immutable parts of our legal system force trial judges to contend with the possibility that the laws they are applying now may not be in effect by the time they actually reach a case in which that law was once pertinent. Of course, it is exceedingly unlikely that such a possibility would collide with either ex post facto concerns or repeal legislation.But while the infrequency of their intersection rarely manifests itself into practical instances of litigation, it is worth examining, at least in hypotheticals, how such instances could be resolved in the future.


[1]U.S. Const. art. I, § 9, cl. 3.

[2]“Ex post facto.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/ex%20post%20facto.

[3] William W. Crosskey, True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. Chi. L. Rev. 539, 545 (1947).

[4]Id. at 548.  

[5] Joseph Story, Commentaries on the Constitution of the United States, 3 Boston, 1338 (1833); Id. at 550.

[6] Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798).

[7] Carl Jr. Seeman. The Retroactive Effect of Repeal Legislation, 27 Ky. L. J. 75, 79 (1938).

[8] LegBranch Team, When Does Congress Repeal Legislation? A New Dataset of Major Repeals from 1877-2012 Provides Answers, LEGBRANCH (October 19, 2015), https://www.legbranch.org/2015-10-19-when-does-congress-repeal-legislation-a-new-dataset-of-major-repeals-from-1877-2012-provides-answers/

[9] State v. Ramseur, 862 S.E.2d 354, 28 (N.C. 2020).

[10] David Larson, Anita Earls Would Join Short List of NC justices if picked for US Supreme Court, THE NORTH STATE JOURNAL (February 2, 2022), https://nsjonline.com/article/2022/02/anita-earls-would-join-short-list-of-nc-justices-if-picked-for-us-supreme-court/

[11] Id. at 27.

[12] Id. at 29.

[13] Id. at 40.

[14] Id. at 41.


When Children Stop Being Children: Reevaluating the Transfer of Juvenile Cases to Adult Courts

Paneez Oliai is a third-year student in the College, where she majors in
History and Psychology with a minor in Government. She is currently a managing
editor for the Georgetown University Undergraduate Law Review.

With the recent push in Maryland to end mandatory direct file, the charging of juveniles as adults is as relevant of a debate as ever.[1] As a matter of fact, the issue has been hotly debated across the nation: in 2019, California lawmakers passed a state law requiring that youths under the age of 16 be tried in juvenile court. The legislation was challenged by prosecutors across the state, but the law remained. The California Supreme Court unanimously decided in O.G. v. Superior Court to uphold the policy and its limits on the transfer of juvenile cases to adult courts. Prosecutors had alleged that the ability to try juveniles charged with certain crimes as adults serves to deter crime, appropriately punish serious violations of the law, and bring justice to victims.[2] Yet a number of comprehensive, nation-wide reports illustrate otherwise.

Juveniles are typically transferred to adult courts through one of three methods: judicial waiver, mandatory direct file, and prosecutorial direct file. A judicial waiver occurs when juvenile court judges decide to transfer the child to adult court following their waiver or fitness hearing.[3] Mandatory direct file, on the other hand, is implemented when a youth is automatically transferred to adult court due to the nature of the crime being discussed, while a prosecutorial direct file allows prosecuting attorneys to file the case in adult court directly, without the approval of a judge.[4] Reports such as the 2012 Bulletin of the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency’s Prevention, however, have found issues with all three methods of juvenile transfer to adult court.[5]

Policies such as mandatory direct file, for instance, ignore the context and idiosyncratic circumstances of individual cases; instead of offering flexible guidelines under which juvenile cases may be transferred to adult courts, the system relies on a blanket heuristic. Decisions like these thus become cut-and-dry, devoid of nuance. Direct file thus makes it impossible for courts to receive the full picture, an effect that becomes particularly dangerous when the defendants are children of color. With the historic and systemic deprivation of communities of color from safety, vital resources, and social supports, it is unsurprising that the developmental environment of each child becomes vital to their case. Yet when policies such as direct file are implemented, this valuable context is effectively ignored, making it more likely for children of color to be transferred to adult courts, convicted, and given harsher sentences.

The alternative, prosecutorial direct file, presents an equally unattractive reality. Unfortunately, prosecutorial direct file policies include few if any standards, guidelines, or even recommendations for considerations.[6] This vagueness surrounding prosecutorial discretion laws precludes defendants from testing the decision, giving immense and unquestionable power to prosecutors to undermine the juvenile justice system.

Critically, all three systems remain problematic even when issues regarding the method of transfer are resolved; when the very consequences of transferring youths are negative, altering the methods is hardly helpful. In fact, reports such as those discussed above have demonstrated that the focus on penalizing youth is more vindictive than rehabilitative. When juveniles are denied the ability to be tried in a system constructed with their rehabilitation and unique needs in mind, the very purpose of juvenile court systems is again undermined. Adult courts focus on the question of objective guilt versus innocence, lacking the consideration of environmental factors and contexts that juvenile justice systems emphasize.

This context, however, matters far more for children than it does for adults. At such a critical point in their physical and psychological development, environmental influences play a major role in shaping the decisions and behavior of children. This makes it difficult for prosecutors to allege that a child utilizes the same agency and decision-making processes as an adult when they commit a crime. This very lack of agency, as a matter of fact, is one of the guiding principles underlying the many protective laws regarding juveniles. In other words, prosecutors simply cannot have it both ways; either children are independent and self-aware enough to make a number of decisions that they are currently restricted from, or they should be regarded with greater consideration of their environmental factors.

Again, this lack of context is particularly harmful for children of color—just as in the issue of direct file, the socioeconomic circumstances of children of color leave them less protected against such destructive policies. Children of color are more likely to experience underserved neighborhoods, difficulty in retaining private counsel, and increased surveillance and violence at the hands of police.[7] This makes youth of color vastly more likely to be transferred to adult courts, where they receive a disproportionately large amount of convictions and correspondingly inequitable sentences.[8] By recognizing the complex relationship between the behavior of juveniles and their worlds, juvenile justice systems serve to correct environmental issues that affect children of color in particular, repairing the harmful effects of systemic inequalities.

Adult courts, on the other hand, leave little room for growth. When an adult enters the justice system, much of their development has already been completed. Yet a child tried and sentenced through adult systems is effectively frozen in their development. They are given no support in mending harmful behaviors, or any hope for reintegration into communities and families where they might have been positive forces. Disturbingly, the trying of youths in adult courts is ineffective even in achieving the goal of deterrence: several studies have revealed that juveniles tried and sentenced in adult courts had higher recidivism rates than those charged with similar offenses in juvenile courts.[9] Clearly, the transfer of juveniles to adult courts creates positive feedback loops in which children fall behind in their development, are given no opportunity to heal, and are repeatedly returned to an ineffective justice system. The focus when it comes to juveniles thus cannot be punishment. The debate regarding the trying of juveniles as adults demands that we reevaluate the goals and priorities of our justice system. It is evident that the cost to society from the neglect of restorative justice is far too much for both our systems of justice and our marginalized communities to bear. Fortunately, the situation is not entirely hopeless: more and more state courts are beginning to reevaluate their stances on harmful judicial practices like mandatory direct file, securing the future of juvenile justice one policy at a time.


[1] Brian Witte, Supporters of Juvenile Justice Reform Hopeful in Maryland, US NEWS (2021), https://www.usnews.com/news/best-states/maryland/articles/2021-12-21/supporters-of-juvenile-justice-reform-hopeful-in-maryland.

[2] O.G. v. Superior Court, 11 Cal.5th 82, 92 (2021)

[3] Celia Harris et al., Juvenile InJustice: Charging Youth as Adults is Ineffective, Biased, and Harmful Human Impact Partners, HUMAN IMPACT (Feb., 2017), https://humanimpact.org/hipprojects/juvenile-injustice-charging-youth-as-adults-is-ineffective-biased-and-harmful.

[4] Id. at 6.

[5] Edward P. Mulvey & Carol A. Schubert, Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court, U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention 1–20 (2012).

[6] Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention 1–28 (2011).

[7] Harris et al., Juvenile InJustice, 14.

[8] Id. At 7-8.

[9] Craig A. Mason et al., Impacting Re-Arrest Rates Among Youth Sentenced in Adult Court: An Epidemiological Examination of the Juvenile Sentencing Advocacy Project, 32 Journal of Clinical Child & Adolescent Psychology 205–214 (2003).Project; 2001. http://ncfy.acf.hhs.gov/library/2001/re-arrest-rates-among-youth-sentenced-adult-court.; Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Juvenile Justice Bulletin 1–12 (2008).

Climate Refugees: The Case of Ioane Teitiota and Gaps in International Law

Angela Tan is a third-year undergraduate student in the School of Foreign Service,
majoring in International Politics. She serves as a Blog Editor on the GUULR staff.

Although climate change is often described as a slow-onset process with effects in the distant future, the Pacific island nation of Kiribati has already started to see its consequences such as fresh water scarcity, decrease in rainfall, contaminated water supply, decline in fish population, erosion of the coastline, and devastating flooding of villages.[1] The elevation of the country averages six feet above sea level, and it is one of the most vulnerable states to rising oceans due to climate change.[2] It is these conditions that motivated people like Ioane Teitiota to migrate from his home country of Kiribati to New Zealand. While working in New Zealand, Teitiota unintentionally overstayed his work visa and needed a renewal, but his case ended up testing the limits of international law for refugees, and revealing gaps in the system designed to protect the most vulnerable.

In Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, Teitiota requested asylum as a “climate change refugee,” citing the effects of climate change in his home country as endangering the lives of both himself and his family. If New Zealand accepted his proposition, climate change refugee status would entitle Teitiota to all protections listed under the 1951 United Nations Convention Relating to the Status of Refugees. However, the New Zealand court rejected his claim, stating it “fell short of 1951 Refugee Convention legal criteria because he was unable to show that by returning to Kiribati, he would suffer ‘a sustained and systematic violation of his basic human rights such as right to life . . . or the right to adequate food, clothing and housing.”[3]

 According to existing international law, the New Zealand court made no error. The 1951 convention defined a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”[4] This definition was designed to protect individuals fleeing from an imminent threat or danger to their life, but climate change presents a new difficulty. Its consequences may be gradual, but could be devastating for entire countries like Kiribati, which is estimated to become inhabitable due to rising sea levels by the end of the century.[5]

Kiribati is not alone in this situation, and the problem is likely to worsen in the future. Between 2008 and 2014, climate-related natural disasters displaced up to 184.4 million people, and 19.3 million were displaced in 2014 alone.[6] By 2050, it is projected that approximately 200 million to 1 billion people will be displaced by climate change,[7] with the majority of those affected from low-lying areas in East, Southeast, and South Asia.[8]

 So what are the obstacles to expanding the definition of a refugee? One is that there is no consensus on what exactly “climate-induced migration” is. Experts differ in their opinions, and possible definitions include “(1) intensified sudden-onset natural disasters, e.g., storms; (2) slow-onset effects on livelihoods, e.g., chronic drought; (3) regions becoming uninhabitable or incapable of supporting livelihoods, e.g., submerging island states; (4) regions designated environmental high-risk zones; and (5) conflict stemming from resource-scarcity fueled by climate change.”[9] Another difficulty is that even though the displaced are permanently forced from their homes due to environmental reasons, the term refugee may not be entirely appropriate to describe their situation. Historically, the term applied to migrants who travelled across state borders for protection, and many examples of environmental displacement occur within state lines. However, with the climate crisis worsening, it is increasingly likely that there will be fewer options for the displaced in their home countries.

Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment exposed gaps in the global system to protect refugees and questioned if the definition of refugee created in 1951 is still sufficient to protect victims of a new 21st century crisis: climate change. The effects of climate change put the most vulnerable even more at risk since its consequences are predicted to “slow down economic growth, make poverty reduction more difficult, further erode food security, and prolong existing and create new poverty traps.”[10] While the climate crisis may not currently be an imminent danger to those in vulnerable countries, it may be too late by the time it is, and it is worth thinking about how international law will need to change to accommodate people looking for a new home.


[1] Kenneth R. Weiss & Birgit Krippner, Exile by Another Name, Foreign Policy 48–56, 50 (2015).

[2] Id. at 50.

[3] Alice Thomas, Protecting People Displaced by Weather-Related Disasters and Climate Change: Experience from the Field, 15 Vermont Journal of Environmental Law 803–832, 811 (2014).

[4] United Nations High Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees, UNHCR, 3, https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html.

[5] Climate Change and the Disappearing Islands of Kiribati, Human Rights Watch (June 15, 2018 2:41PM), https://www.hrw.org/news/2018/06/15/interview-climate-change-and-disappearing-islands-kiribati.

[6] Rina Kuusipalo, Exiled by Emissions—Climate Change Related Displacement and Migration in International Law: Gaps in Global Governance and the Role of the UN Climate Convention, 18 Vermont Journal of Environmental Law 614–647, 618–619 (2017).

[7] Id. at 618.

[8] Id. at 619.

[9] Kuusipalo, supra note 6, at 619.

[10] Id. at 622.

At the Intersection of the Law and International Monetary Policy: Federal Reserve Swap Lines

Leo Rassieur is a Senior in the College double-majoring in Government and Economics with a minor in French and serves as a Managing Editor at GUULR.

​Throughout the 2008 crisis, the Fed came under much scrutiny for its extension of credit to large non-bank financial institutions like American International Group and Bear Stearns. Meanwhile, ordinary Americans still struggled to access credit, culminating in the 2010 Dodd-Frank regulations, which curtailed the Fed’s ability to lend domestically in this way. Interestingly, though the Fed’s provision of liquidity overseas was arguably a larger overstep of its legal authority than this domestic lending, its ability to do so has not been seriously scrutinized by Congress or by the courts. Therefore, it is relatively unsurprising that, in the midst of the COVID-19 crisis, the Fed has drastically expanded foreign bank access to USD liquidity. These Fed “swap lines” are not remarkable merely because they are new—in fact, they date back to 1962—but because they elicit little to no congressional or judicial scrutiny despite forming a central pillar of the global financial crisis response procedure.

By extending a swap line, the Federal Open Market Committee (FOMC) authorizes the contractual and temporary swap of a given quantity of dollars for the domestic currency of a foreign central bank. The initial purchase of currencies is the “spot leg” while the subsequent repurchase, terminating the swap, is the “forward leg.” To execute the spot leg, the Fed deposits dollars in the foreign central bank’s account with the Federal Reserve Bank of New York (one of twelve regional Federal Reserve Banks). This institution acts as the agent of the FOMC by implementing the transaction. Simultaneously, the foreign central bank deposits the foreign currency in the Fed’s account. The foreign central bank is then free to distribute the dollars to borrowers through its own selection process, in which the Fed has no oversight. Included in the liquidity swap contract is the agreement to repurchase the currencies on a given future date at the same nominal rate as the initial transaction, with the Fed receiving an additional preset fee for interest. The money created by the two central banks is thus removed from circulation. The Fed’s swap lines promote global economic stability pre-crisis by mitigating fears of foreign central bank failure and, by extension, the failure of the foreign financial institutions relying on those central banks for USD liquidity, and doubly serve to repair damage post-crisis by rescuing foreign central banks and other financial institutions.

​However, the term “swap line” does not appear in the original FRA or its amendments. Nonetheless, the notion that the Fed’s swap line authority is provided by Section 14 of the FRA is taken for granted at the highest levels of government, though less so in legal scholarship. As originally codified, Section 14 of the FRA of 1913 enumerates the powers of Federal Reserve Banks under the rules and regulations of the Board, including to “purchase and sell in the open market, at home or abroad, either from or to domestic or foreign banks, firms, corporations, or individuals, cable transfers and bankers’ acceptances and bills of exchange” and to “open and maintain banking accounts in foreign countries … whatsoever it may deem best for the purpose of purchasing, selling, and collecting bills of exchange.” This language is essentially the same today, with Section 14 only having been significantly amended by the Banking Act of 1933 (Glass-Steagall) and the Banking Act of 1935, which structured the Fed’s modern Board of Governors and the FOMC, and by the Monetary Control Act of 1980, with respect to the Fed’s oversight of non-member banks.

​Much of the Fed’s legal mandate to engage in foreign liquidity swap lines therefore relies on the contextualization of the Federal Reserve Act, particularly whether swap lines fall under the purpose of the Fed as defined by its so-called “dual mandate” to promote stable prices and maximum employment. The dual mandate is a normative framework for the Fed’s monetary policy responsibilities that stems from the Federal Reserve Reform Act of 1977. Amid the Great Inflation of the 1970s, Congress amended the Federal Reserve Act to task the Board and the FOMC with “maintain[ing] long-run growth of the monetary and credit aggregates commensurate with the economy’s long-run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.” Broadly speaking, senior officials at the Fed have interpreted the dual mandate as tacitly including the goal of financial stability, which cannot help but have a global dimension, as the international financial system is largely denominated in dollars.

​Judicial perspectives and, relatedly, congressional views on the Fed’s swap lines have thus far largely and voluntarily constrained themselves to not intervene in what the Fed claims is sound monetary policy, particularly in relation to the international financial system. This peculiar difference stems from two related doctrines. The first, a legal one, derives from a line of court cases establishing the unique legal independence of the Fed and the Federal Reserve Banks that execute the Fed’s policies from judicial review. The second, a widely accepted principle in international political economy, is the notion of central bank independence (CBI). This policy rests on the idea that sound monetary policy cannot take place unless a nation’s central bank is shielded from the political process, including the short-term incentives that might guide politicians.

If the legal dilemma of the Fed’s actions is then left to Congress, it is likely no action will be taken soon. This is especially true given the generally accepted principle of CBI, meaning that the Fed should manage its highly technical and long-term responsibilities without oversight from politicians concerned with re-election or from judges who lack qualifications in monetary policy. Since the Chevron doctrine in 1984, the Supreme Court and lower courts have committed to deferring to a federal agency for interpreting the meaning of a statute that Congress has tasked it with enforcing or implementing, particularly when understanding the statute “depend[s] upon more than ordinary knowledge.” The courts’ treatment of the Fed is the quintessential application of the Chevron doctrine within the domain of monetary policy. In Board of Governors of FRS v. First Lincolnwood, which preceded Chevron by six years, the Supreme Court held that “the [Fed]’s authority is bolstered by reference to the principle that an agency’s long-standing construction of its statutory mandate is entitled to great respect, especially when Congress has refused to alter the administrative construction.” Hence, Congress’ general apathy toward swap lines and other Fed powers reinforces the courts’ deference to the Fed, which results in a positive feedback loop. Both Congress and the courts likely hold onto CBI as a principle for this heightened deference to the Fed, which as expressed by the Second Circuit, means that “mak[ing]the courts, rather than the Federal Reserve Board, the supervisors of the Federal Reserve System” is “a cure worse than the malady” of mistaken policy.

The Fed and its swap lines are thus a unique artifact of our dollar-denominated system of global capitalism. The breakdown of Bretton Woods left the Fed, particularly the FOMC, in the peculiar position of managing the response to global financial crises despite lacking an international mandate, let alone an explicit domestic one with substantive political, judicial, or popular oversight. In essence, the extra-legality (or, arguably, illegality) of swap lines perfectly encapsulates the fact that the Fed’s de facto role as global lender of last resort and monitor of financial stability is not written in law. The extraordinary independence of the Fed in executing this responsibility is perhaps a function of lawmakers and jurists’ valuing of CBI, thus explaining why they might subvert a legal framework that could easily be challenged.

Making the War Powers Resolution a Justiciable Issue

Jack Little is a senior in the School of Foreign Service majoring in international politics and minoring in Spanish and philosophy and an Assistant Editor for GUULR

In 1973, Congress passed the War Powers Resolution (WPR), providing itself with new statutory powers to oversee the president’s use of the military.[1] The WPR requires the president to notify Congress within 48 hours of introducing armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”[2] Absent certain extenuating circumstances, the president must then withdraw military forces within 60 days unless Congress has approved of the president’s action.[3] At first glance, this congressional approval requirement is simple and allows for judicial intervention given presidential noncompliance. However, courts have generally held that such cases involve political questions outside the judiciary’s jurisdiction and are thus nonjusticiable.[4] For example, an opinion in Campbell v. Clinton decided this issue was nonjusticiable.[5] As a result, consequential disagreements about the use of armed forces go unresolved and Congress cannot enforce its power under the WPR to approve the use of armed forces. In this essay, I will argue that although the Campbell opinion was properly decided as nonjusticiable, a simple but necessary amendment to the WPR would quash these concerns and make violations of the WPR’s congressional approval requirement justiciable.

In Campbell, Congressman Tom Campbell and twenty-five other members of the House argued that President Clinton violated the WPR by using armed forces in the Federal Republic of Yugoslavia without congressional approval.[6] Although the D.C. Circuit rejected the plaintiffs’ lawsuit primarily on lack of standing, Judge Silberman also opined that the case was not justiciable, as “the statutory threshold standard is not precise enough and too obviously calls for a political judgment.”[7] The threshold standard Judge Silberman refers to is whether armed forces face hostilities or imminent hostilities, which would trigger the congressional approval requirement under the WPR.[8]

Judge Silberman’s reasoning here invokes the political question doctrine as established in Baker v. Carr.[9] The political question doctrine refers to the principle that the judicial branch does not have jurisdiction over issues of an inherently political nature because of “a court’s impotence to correct that violation.”[10] In his majority opinion, Justice Brennan described six ways in which an issue could violate the political question doctrine, one of which is “a lack of judicially discoverable and manageable standards for resolving it.”[11] Issues that would require courts to create inherently political standards fall outside their jurisdiction. He also analyzed judicial precedence and found that the “lack of judicially discoverable standards … may impel reference to the political departments’ determination of dates of hostilities’ beginning and ending.”[12] In other words, courts cannot determine when hostilities have begun or ended because this requires an inherently political determination reserved for the legislative and executive branches of government. More intuitively, how could courts possibly decide whether armed forces face hostilities or imminent hostilities given their limited military and national security expertise? Therefore, Judge Silberman was correct that the standard triggering the congressional approval requirement under the WPR is nonjusticiable.

This is not to say, however, that courts can never decide on when hostilities have occurred. Indeed, Justice Brennan included the caveat in Baker that “clearly definable criteria for decision may be available. In such case the political question barrier falls away.”[13] It stands to reason, then, that the WPR’s congressional approval requirement could be justiciable if the statutory threshold were more precise than the presence of hostilities or imminent hostilities

            I, therefore, propose a simple amendment to the WPR. As it currently stands, the president is required to submit a report to Congress within 48 hours of introducing the armed forces:

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.[14]

In this way, the WPR requires notification of Congress in situations other than which armed forces face hostilities or imminent hostilities. These other two situations—those in which armed forces enter foreign territory or substantially increase their presence abroad—are justiciable, as they meet the “clearly definable criteria” caveat to the political question doctrine under Baker.[15] Courts could determine whether these standards have been met without making political determinations outside their jurisdiction. Congressional approval, however, is only required after 60 days of armed forces facing hostilities or imminent hostilities, not for the latter two situations.[16] Therefore, Congress could amend the WPR to require congressional approval in any of the three situations in which the president is already required to notify Congress of military action. Doing so would quash the justiciability concerns presented in the Campbell and Baker cases.[17]

            More importantly, this proposal would benefit U.S. national security and democracy. First, allowing courts to intervene in issues related to the WPR’s congressional approval requirement would strengthen Congress’s ability to approve armed conflict. This would, in turn, improve the long-term national security strategy because “robust checks on presidential unilateralism help ensure that a chosen strategic path can withstand tough scrutiny.”[18] After all, the Constitution gives Congress the power to fund the military and declare war, distinct from the president’s power as commander in chief, implying a role for Congress in the country’s use of armed forces.[19] Moreover, the WPR’s purpose was to “insure that the collective judgment of both the Congress and the President will apply to the” use of armed forces.[20] This proposal would thus help fulfill this purpose and strengthen the constitutional system of checks and balances.

Second, this proposal would make congressional authorization under the WPR a legal issue, allowing the president to be held accountable outside solely political processes like elections or impeachment. These political processes cannot remedy situations in the short term, potentially leading to significant loss of life or harm to national security. Allowing Congress to hold the president accountable through the legal process, however, can more rapidly remedy violations of the WPR.[NR1] 

I have shown why violations of the WPR’s congressional approval requirement are currently nonjusticiable according to the political question doctrine. However, the political question doctrine also includes a caveat for defining hostilities, in which precise criteria would make this a justiciable issue. The U.S. should therefore amend the WPR to take advantage of this caveat and improve the country’s national security and democracy.


[1] War Powers Resolution, 50 U.S.C. §§ 1541-1550 (2018).

[2] Id. §1543(a)(1)

[3] Id. §1544(b)

[4] Louis Fisher, “The Law: Litigating the War Power with Campbell v. Clinton,” Presidential Studies Quarterly 30, no. 3 (09, 2000): 567, https://www.proquest.com/scholarly-journals/law-litigating-war-power-with-campbell-v-clinton/docview/215688524/se-2?accountid=11091.

[5] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

[6]Id..

[7] Id. at 24-25.

[8] War Powers Resolution, 50 U.S.C. § 1543(a)(1) (2018); War Powers Resolution, 50 U.S.C. § 1544(b) (2018).

[9] Baker v. Carr, 369 U.S. 186 (1962).

[10] Id. at 5.

[11] Id. at 12.

[12] Id. at 11.

[13] Id.

[14] War Powers Resolution, 50 U.S.C. § 1543(a)(1)-(a)(3) (2018).

[15] Baker v. Carr, 369 U.S. 186, 11 (1962).

[16] War Powers Resolution, 50 U.S.C. § 1544(b) (2018).

[17] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000); Baker v. Carr, 369 U.S. 186 (1962).

[18] Jack Landman Goldsmith and Matthew C. Waxman, “The Legal Legacy of Light-Footprint Warfare,” The Washington Quarterly 39 (2016): 18, https://law.yale.edu/sites/default/files/goldsmith_and_waxman.pdf.

[19] U.S. Const. art. 1, § 8, cl. 11-12.

[20] War Powers Resolution, 50 U.S.C. § 1541(a) (2018).


Bibliography:

Fisher, Louis. “The Law: Litigating the War Power with Campbell v. Clinton.” Presidential

Studies Quarterly 30, no. 3 (09, 2000): 564-574. https://www.proquest.com/scholarly-journals/law-litigating-war-power-with-campbell-v-clinton/docview/215688524/se-2?accountid=11091.

Goldsmith, Jack Landman and Matthew C. Waxman. “The Legal Legacy of Light-Footprint Warfare.” The Washington Quarterly 39 (2016): 21-7. https://law.yale.edu/sites/default/files/goldsmith_and_waxman.pdf

An Examination of Occupation Law in Present-Day Palestine

Keerat Singh is a junior in the School of Foreign Service studying Business and Global Affairs and serves as Senior Blog Editor for GUULR.

Occupation law, under Article 42 of the 1907 Hague Regulations, defines an occupied territory as one that is “placed under the authority of the hostile army,” where that authority “has been established and can be exercised.”[1] The regulations respecting the laws and customs of war on land, outlined in the Geneva Conventions of 1949, apply to any territory occupied during international hostilities.[2]

This body of law does not consider the legality of how a territory came to be occupied (the legality of such encroachments is regulated by the UN charter).[3] Regardless of the legality of an occupation, occupation law begins to apply as soon as a people are living under the authority of a hostile regime, as it is motivated by humanitarian principles, seeking to ensure humanitarian treatment for all those living under occupation.[4]

Occupation law, outlined in the 1907 Hague Regulations, the Fourth Geneva Convention, Additional Protocol I, and customary international humanitarian law, stresses that occupation must be restricted to a temporary situation and that the occupant should not acquire sovereignty over the territory.[5] It also states that the occupying power should provide for the public order, safety, public hygiene, food, and medical care of the population under occupation.[6] Some actions prohibited for the occupying power to take part in include collective punishment, hostage-taking, confiscation of private property, destruction or seizure of “enemy” property, and the transferring of their civilian population into the occupied territory.[7]

The enforcement of international humanitarian law on international situations constituting occupation has relied heavily upon judicial processes, which are often ineffective.[8] The conventional enforcement mechanisms for international humanitarian law include different degrees of sanctioning, from State responsibility to liability for reparations.[9] However, these mechanisms have not been activated to ensure compliance with occupation law, resulting in a weakly enforced and routinely violated section of laws. In fact, the routine disrespect for occupation law in certain regions “barely gives rise to criminal proceedings” in many cases.[10]

Perhaps the largest violator of occupation law today is the State of Israel. Israel has normalized an apartheid state that constantly engages in the persecution of Palestinians living in the Occupied Palestinian Territories (OPT).[11] The state is based on settler-colonialism, the practice of replacing an indigenous population with an invasive settler society through means of repression and genocide of the indigenous peoples.[12] The violent persecution obviously defies international humanitarian law; however, the practice itself of settler-colonialism also stands in clear violation of occupation law, as it seeks to confiscate private property from Palestinians and transfer the Israeli population into internationally recognized Palestinian territories.

The OPT comprises the West Bank, including East Jerusalem, and the Gaza Strip. Despite Israel annexing East Jerusalem in 1967, international law still considers it an occupied territory.[13] Israel retains primary control over the OPT, regulating its borders, airspace, security, the movement of all people and goods, and the legal status of every resident.[14] As Israeli settlers continue to encroach on OPT land, Israeli law confers them a superior status, as compared to Palestinians, with a much larger provision of civil rights, land access, and freedom of movement guaranteed to them.[15] Palestinians are therefore relegated to second-class citizens in the small portion of territory they have left.[16]

One of the more recent violations of occupation law that Israel has committed is the forced evictions of Palestinians from Sheikh Jarrah, a predominantly Palestinian neighborhood in East Jerusalem. Mohammed el-Kurd, a Sheikh Jarrah resident, was asked on CNN if he supported the “violent” protests in response to the forced evictions of his community members. He responded, “Do you support the violent dispossession of me and my family?”[17]

Liberation for Palestinians from this apartheid regime will not be easily achieved. However, el–Kurd believes that people are increasingly beginning to see through the myths propagated by the Israeli state and the United States. He told the CNN anchor that people are beginning to “call an occupation for what it is, and call an aggressor for what it is.”[18] The international community has the imperative and ability to put actionable sanctions behind its occupation laws and end the Israeli occupation of Palestine.


[1] Geneva Conventions of 1949 and Additional Protocols art. 42, Oct. 18, 1907.

[2] Occupation and international humanitarian law: questions and answers, INTERNATIONAL COMMITTEE OF THE RED CROSS (Apr. 8, 2004), https://www.icrc.org/en/doc/resources/documents/misc/634kfc.htm.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Tristan Ferraro, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 1-2 ISRAEL L. REV. 331, 331-357 (2008).

[9] Gentian Zyberi, Enforcement of International Humanitarian Law, INTERNATIONAL HUMAN RIGHTS INSTITUTIONS, TRIBUNALS, AND COURTS. 1, 1-24 (2018).

[10] Tristan Ferraro, Forty Years after 1967: Reappraising the Role and Limits of the Legal Discourse on Occupation in the Israeli-Palestinian Context, Enforcement of Occupation Law in Domestic Courts: Issues and Opportunities, 41 1-2 ISRAEL L. REV. 331, 331-357 (2008).

[11] A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, HUMAN RIGHTS WATCH (Apr. 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution.

[12] Amanda Morris, What is Settler-Colonialism?, LEARNING FOR JUSTICE (Jan. 22, 2019), https://www.learningforjustice.org/magazine/what-is-settlercolonialism.

[13] Ayesha Kuwari, Israel’s Violations of International Law in the Occupied Palestinian Territories, HUMAN RIGHTS PULSE (May 21, 2021), https://www.humanrightspulse.com/mastercontentblog/israels-violations-of-international-law-in-the-occupied-palestinian-territories.

[14] A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, HUMAN RIGHTS WATCH (Apr. 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution.

[15] Id.

[16] Id.

[17] CNN Newsroom, Israeli-Palestinian Clashes Escalate Dramatically, FACEBOOK (May. 11, 2021), https://www.facebook.com/JustVision/videos/259761829215713/.

[18] Id.

The 539th Electorate? An analysis on Judicial Activism in Elections

Paris Nguyen is a junior in the School of Foreign Service studying International Politics and serves as an assistant editor for GUULR.

At the end of the night on November 8th, rather than there being a projected winner of the 2020 U.S. presidential election, there was contention, uncertainty, and most importantly, numerous legal questions awaiting the courts. However, the U.S. Supreme Court did not accept any challenges to the presidential election this time around. The role of the judiciary in elections does not exist in the U.S. Constitution and has, consequently, never been clearly defined. In the past, the Court had decided on a few landmark election cases but, in the end, the question of the judiciary’s role in the election process remains unclear today. In analyzing a few vital decisions from the Supreme Court, it becomes evident that the judiciary should practice judicial activism to protect votes and minimize corruption. Beyond those issues, the Court should remain reasonably uninvolved to maintain independence from politics. 

Minority protection in elections is an area that calls for judicial activism. In Harper v. Virginia Board of Elections, the Supreme Court ruled a $1.50 poll tax unconstitutional because it violated the Equal Protection Clause.[1] While the poll tax was not explicitly racially discriminatory, it inhibited voter participation from economically disadvantaged groups that were typically minorities. The court established the precedent that the affluence of the voter or the payment of any fee as a standard for voting constitutes a violation of the Equal Protection Clause.[2] The justification for this judicial involvement is considered as minority protection and set the future precedent to protect economically disadvantaged groups. Applying this idea forward, the courts should always practice judicial activism when taking cases concerning the right to vote. 

Political corruption in elections necessitates judicial activism as well. In McConnell v. Federal Election Commission, the Supreme Court upheld the ban on unrestricted soft money donations, justified by the government’s legitimate interest in preventing corruption by large financial contributions.[3] The Court’s activism in this situation was necessary as it helped to minimize the corrupting influence of big donors in politics. Another similar situation of political corruption arose regarding districting of Alabama’s senatorial districts where every district was represented by one senator regardless of its population. The legislature had been reluctant to redistrict because the current status quo gave more power to the rural areas where wealthier residents typically resided. In an eight to one decision, the court held that Alabama’s districting scheme violated the Equal Protection Clause and consequently required Alabama’s legislature to redistrict based on population.[4] In this case, the Supreme Court again stepped in to minimize the Alabama legislature’s attempt to give more voting power to the wealthy. In the two cases presented, the court justly utilized its power to minimize political corruption to promote society’s best interest. However, when it comes to other issues outside of the scope of minority protection or corruption, the court must tread carefully. 

Excessive judicial involvement in elections could make constitutional law appear as nothing more than just politics by another name. In Bush v. Gore, the U.S. Supreme Court ruled the Florida Supreme Court scheme for recounting ballots as unconstitutional because of the different standards applied from ballot to ballot and precinct to precinct.[5] There was consensus that the Florida Supreme Court issuing the recount was unconstitutional because the State Supreme court created new election law, a power only granted to the state legislature. Furthermore, the court ruled the Florida Supreme Court’s actions unconstitutional by a vote of seven to two. However, the court then went further to state that no constitutional recount could be fashioned in time.[6] This five to four ruling to stop the recount is where the case became contentious. As a direct result of the Supreme Court, the recount never happened, and George Bush was declared the winner of the election. Whether the recount would have changed the results or not, the world will now never know. In this case, an overreach of judicial activism that stopped the recount made the court the most important actor in the 2000 election, a situation that should never have occurred

The U.S. Supreme Court’s rejection of election cases pertaining to the 2020 election marks a step in the right direction of limiting judicial activism in election matters. After the 2020 presidential election, three primary cases came about that the court rejected. The first, Kelly v. Pennsylvania, which attempted to prevent Pennsylvania from certifying its election results due to its no-excuse absentee voting policy violating the US Constitution, was denied.[7] Texas v. Pennsylvania, which similarly attempted to nullify Pennsylvania’s election results, was denied for lack of standing.[8] Lastly, Trump v. Wisconsin Elections Commission was denied by the Supreme Court and declared moot for its wrongful application of the Electors Clause.[9] While all three cases varied in detail, their purpose was essentially the same: to change the results of the 2020 election. The Court made the right decision in avoiding these cases altogether because any decision from the Court would have been charged as partisan. In short, the Justices would have likely been accused of basing their decision on their political beliefs rather than actual Constitutional law, as their decision could have very well changed the outcome of the election in favor of their preferred candidate. In no situation could the Court have ruled without further complications arising as a result of its decision.

The Court’s role in elections should primarily be ensuring voter enfranchisement and preventing political corruption. With election issues unrelated to those two areas, however, the Court should remain minimally involved because it is important that the Court remain independent from politics. Rather, it is better to leave it to the legislatures to settle contentious election issues because they are elected representatives and can better carry out the will of the people. Non-elected judges should not affect the outcome of an election, especially since the president is elected by the people, not the courts.


[1] Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

[2] Id.

[3] McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

[4] Reynolds v. Sims, 377 U.S. 533 (1964).

[5] Bush v. Gore, 531 U.S. 98 (2000).

[6] Id., at pg 121.

[7] Kelly v. Pennsylvania, 240 A.3d 1255 (Pa. 2020), cert. denied, 592 U.S. _ (U.S. Feb. 22, 2021) (No. 20-810).

[8] Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 11, 2020).

[9] Trump v. Wisconsin Elections Commission, 506 F. Supp. 3d 620 (7th Cir. 2020), cert. denied,592 U.S. _ (U.S. March 8, 2021) (No. 20-883).