Law School Discussion

HELP! Some Questions


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HELP! Some Questions
« on: November 05, 2003, 08:47:31 AM »
Imagine you are being considered for a position as a law clerk for a justice of teh US supreme court. How would you answer the following questions?

1) What considerations should be given to the factual basis, rather than issues of law, of the litigation being considered for appellate review?

2) List some criteria to be considered when determining whether a writ of certiorari should be granted to an appeal from a state supreme court?

3) should your standards for granting this writ be more difficult when considering a civil rather than a criminal appeal?

4) Do you believe the standards for granting a writ of certiorari should be eased, either by, action of the Court or by Acts of Congress, so a greater number of cases can be reviewed on thier merits?


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Re:HELP! Some Questions
« Reply #1 on: November 09, 2003, 09:18:31 AM »
The answers to all three of these questions would determine which Jusitice you are interviewing with.

1) The factual basis for the litigation should be given very little consideration, at least for constitutional issues. Appellate courts are suppose are resolve questions of law and not make policy determinations. The facial question of whether a law is good or bad should be made by the political branches, specificaly Congress or state legislatures as they are the bodies best structured to make policy. When justices are interpreting the constitution they should adhere to the text and original understanding. By doing this, the Court willl be unable to inject their own policy determination into their arguements.

2) I would consider whether different circuits disagree on the issue, whether a circuit has overruled or narrowed a supreme court precedent, do states disagree with other states, do circuit courts and states disagree, or if the importance of the issue requires the Supreme Court to answer the question at this time.

3) No. The Supreme Court can possibly decide all issues that could come before it. This question closely relates to question 1, and again the factual basis should not matter very much. Through out our history the federal courts have had to intervene to protect people from state courts inability or unwillingness to uphold federal rights. So one can imagine a situation where the Supreme Court would have to intervene in criminal cases more often than civil cases as criminal case could have more serious consequences. But these situations are rare and the writ of habeas corpus exists so federal courts can ensure federal rights are being respected by state courts.

4) No. Concerns of federalism and separation of powers suggests that the court should grant cert only in situations that it is warranted.  Whenever the court reviews congressional action a separation of powers issue arises. The Court should defer to congress and let the political process be the check when ever they can. When the Court reviews State actions, federalism becomes a concern. Issues of partity and comitty suggest that state courts should be given some deference. However, deference need not mean abdication.