If Robert Bork Were on the Court

What Might Have Been?
25 Years of Robert Bork on the Supreme Court

By Benjamin P. Pomerance

Ben Pomerance, a third year student at Albany Law School, is the Executive Editor for Symposium for the Albany Law Review and the 2012 Edgar and Margaret Sandman Fellow for the Government Law Center.  Ben received the New York State Bar Association President's Pro Bono Service Award in recognition of his founding and leading the law school’s Veterans Pro Bono Project.  He also received the Bar Association’s Elder Law Section Scholarship for his work in that field, including service as president of the school’s chapter of the National Academy of Elder Law Attorneys and a student editor of the Bar Association’s Elder Law Attorney publication.  Additionally, Ben is student co-chair of the Law School Liaison program and editor-in-chief of Law Student Connection, the Bar Association’s student newsletter.

This presentation was prepared for the Judicial Process Seminar, Fall 2012.

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To view the complete slide presentation, open HERE for Part 1 & HERE for Part 2.

(Then, for the best view, click File + Download, and Open the download.)

Gay Rights & the Judicial Process

Connecting the Dots Behind Gay Rights Decisions

By Matthew Newman
Matthew "Aidyn" Newman is a class of 2012 graduate of Albany Law School with a specialty in Criminal Law. He received his undergraduate degree in East African studies from Union College, where he researched his thesis on Japanese yakuza and spent a semester abroad studying at Kansai Gaidai in Osaka, Japan.
This paper was prepared for the Judicial Process Seminar, Fall 2011.

One of the greatest challenges confronting a judge is how to decide a case.  Some judges adhere to "originalism," others are "literalists."  Some judges take into account the consequences of their actions, others believe this to be the job of the legislature.  No matter what methodology they use, there is always a secret inner conflict in every judge, between the "realist" and the "formalist."

The "formalist" judge is a neutral observer, nothing more.  He or she applies the facts of any given case to the legal framework in question and draws a conclusion based on these factors.  The "realist," on the other hand, cannot help but to draw upon his or her own personal experiences, morals, and leanings.

This paper will examine four important gay rights cases decided by four courts in an attempt to discern just how palpable the "hidden" morals and ethics of individual judges on these courts are.  First, it will examine the Supreme Court and Justice Scalia's dissent in Lawrence v. Texas.  Then, in Fricke v. Lynch, it will examine Chief Judge Pettine and whether he fits the "realist" paradigm.  Next, the majority's opinion in Goodridge v. Department of Public Health will provide a contrast to the dissent in Lawrence.  Finally, Varnum v. Brien was chosen as a stark contrast to Goodridge.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

The Chief Justice & the Swing Vote

Viewing the Voting Relationship Between John Roberts and Anthony Kennedy Through the Lens of a Legal Realist

By Amanda Celeste Sherman 

In this paper, Amanda Celeste Sherman, a 2010 honors graduate of Albany Law School and Graduate Editor of the Center, explores the voting alignment of Supreme Court Chief Justice John Roberts and Justice Anthony Kennedy in divided decisions over a recent two year period.

In his poem Ulysses, Alfred Lord Tennyson writes, “I am a part of all that I have met.”[1]  These words resound with those who read them because of the general understanding that human beings are a compilation of lessons learned experientially.  Past happenings shape both present and future decisions: this is the human experience.  While there is perhaps a comfort in saying that the role of a judge is to apply the facts to the law and consequently reach the “correct” result, this formula is complicated when reasonable people can differ about what law governs and what facts are relevant.[2]  “[A]ny first year law student knows that judges make law constantly.  The first year student’s common law subjects are almost entirely judge-made law.”[3]  Justice Benjamin Cardozo aptly described judicial decision-making when he said, “There is in each of us a stream of tendency, whether [we] choose to call it philosophy or not, which gives coherence and direction to thought and action.  Judges cannot escape that current any more than other mortals.”[4]

It is with this foundation that this paper examines the voting relationship between Chief Justice John G. Roberts and Associate Justice Anthony Kennedy in the Supreme Court’s 2007 and 2008 terms.  The purpose of this paper is not to question the integrity of these Judges, but rather quite the opposite.  This paper aims to provide a better understanding of the U.S. Supreme Court by examining a small sampling of the voting record of the Chief Justice and an Associate Justice who, whether justifiably or not, has become known as the Court’s swing vote.[5]  The resulting information will be analyzed with the understanding that judges do not and cannot robotically apply law to facts, and therefore, are likely guided by something akin to the streams of tendency of which Justice Cardozo speaks.[6]

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[1] Alfred Lord Tennyson, Ulysses, in Alfred Lord Tennyson, Idylls of the King and a Selection of Poems 323 (2003).

[2] See generally Benjamin N. Cardozo, The Nature of the Judicial Process (1921) (providing realistic insight into the judicial process).
[3] Erwin Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. Rev. 1069 (2006).
[4] Cardozo, supra note 2, at 12.
[5] See, e.g., Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 Cornell L. Rev. 1, 1 (2009); Ted Gest, Outlook; The Court, U.S. News & World Rep., July 15, 1996, at 12; Supreme Court Considers Juvenile Sentences, St. Louis Post-Dispatch, Nov. 10, 2009, at A6.
[6] Cardozo, supra note 2, at 12.

Read the entire paper here.