CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 8, 2011

Abrams on Overlooked Authority in Kennedy v. Louisiana

Abrams-douglas Douglas E. Abrams (University of Missouri School of Law) has posted Lochner v. New York (1905) and Kennedy v. Louisiana (2008): Judicial Reliance on Adversary Argument (Hastings Constitutional Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

Chief Justice William H. Rehnquist called Lochner v. New York (1905) “one of the most ill-starred decisions that [the Supreme Court] ever rendered.” The Justices’ deliberations preceding the 5-4 decision demonstrate the courts’ reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state’s “incredibly sketchy” brief and Joseph Lochner’s sterling submission may have determined Lochner’s outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York’s maximum-hours law for bakery workers was a reasonable public health measure.

The Supreme Court’s reliance on adversary argument assumed the spotlight most recently in 2008, when Kennedy v. Louisiana held that the Eighth Amendment prohibits capital punishment for non-fatal rape of a child. Kennedy found a “national consensus” against such punishment by surveying the landscape of American law. The Court, however, overlooked a 2006 congressional enactment and a 2007 Presidential executive order that no party or amicus had briefed.


Amid the sheer complexity of contemporary American law, the institutional challenges that followed the brief writers’ lapse in Kennedy reinforce the Justices’ own longtime recognition of the central place of lawyers’ advocacy in the adversary system of civil and criminal justice. “The law is made by the Bar, even more than by the Bench,” said then-Judge Oliver Wendell Holmes in 1885. “A judge rarely performs his functions adequately,” added Justice Louis D. Brandeis, “unless the case before him is adequately presented.” Justice Felix Frankfurter reported that in the Supreme Court and lower courts alike, “the judicial process [is] at its best” when courts receive “comprehensive briefs and powerful arguments on both sides.”

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