Supreme Court Appointments: The Supreme Factor

By Brooke Riscica

Brooke Riscica graduated magna cum laude from Albany Law School in May 2026, receiving a Stone Family Prize in Business and Entrepreneurship.

While at Albany Law, Brooke served as Executive Editor for Submissions for Volume 89 of the Albany Law Review, worked as a Teaching Assistant for Professor Bonventre in Criminal Law, completed two semesters in the Edward P. Swyer Justice Center’s Community Economic Development Clinic, served as a Team Captain in the Admissions Office, and served as Editor-in-Chief of the Center for Judicial Process. She also completed summer internships with the DeAngelus Group, PLLC her 1L summer and Bond, Schoeneck & King, PLLC her 2L summer.

Prior to attending law school, Brooke graduated summa cum laude from Utica University, where she earned a B.S. in Criminal Intelligence Analysis, with minors in Cybersecurity and Philosophy of Law.

Brooke returned to Bond, Schoeneck & King, PLLC in September 2026, where she is a full-time litigation associate trainee. 

Supreme Court scholars and constitutional law enthusiasts have spent decades in a battle of the wits over the who, what, why, and how behind nominations to the Court. Some maintain that candidates are nominated based on merit, while others cite factors like geography, race, religion, gender, and ideological compatibility as the considerations weighed when deciding who to seat on this country’s highest court.

Having access to such a wide range of research, data, and scholarship centered around the nomination process for Supreme Court Justices tells a historical tale of the political and social climate in this country during different periods. Studying the history, evolution, and current state of nominations to the Court reveals that the different factors cited are not necessarily correct or incorrect. Rather, these factors are reflections on where the process started and how it changed, which reveals that one factor reigns supreme: ideological compatibility.

This paper introduces the different factors cited as considerations weighed during a candidate’s nomination and appointment to the Court. After a description of each factor’s—geography, race, religion, and gender—role at different times during Supreme Court appointments, a discussion of ideological compatibility as the determinative factor follows.

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To read the paper, open HERE.

The Chief’s Choice: Strategic Opinion Assignments by Chief Justice Roberts

By Olivia Ford

Olivia Ford is a graduating 3L at Albany Law School (May 2026). While at Albany Law, Olivia served as Executive Editor for Notes and Comments for Volume 89 of Albany Law Review, worked as a Sponsler Fellow Teaching Assistant for Federal Civil Procedure, and completed two semesters as a law clerk at Lemery Greisler, LLC.

Prior to attending law school, Olivia graduated summa cum laude from the State University of New York at Geneseo, where she earned her B.S. in Business Administration, with a minor in Political Science. She previously clerked at Wilcenski & Pleat PLLC before law school, and at R.A. Fuerst Law Group, P.C. during her 1L summer. 

Beginning in September 2026, she will be returning as a full-time litigation associate at Phillips Lytle LLP, where she previously worked as a summer associate.

The power to assign majority opinions is one of the Chief Justice of the Supreme Court’s most influential authorities. It helps shape not only the reasoning of individual cases, but also the development of precedent.

Although opinion assignment is often viewed as an internal administrative function, it also serves as a powerful tool through which the Chief Justice can affect the substance of the law, preserve majority coalitions, and influence public perception of the Court and its decisions.

This paper examines the strategic significance of opinion assignment and the varying approaches adopted by different Chief Justices to advance their broader goals for the Court. By comparing the assignment strategies of Chief Justice Rehnquist and Chief Justice Roberts, it demonstrates how these differing approaches can shape case outcomes as well as the internal dynamics on the Court. It then analyzes Chief Justice Roberts’ recent strategic assignments, drawing on salient Roberts Court decisions between 2022 and 2025.

This paper argues that Roberts has increasingly used opinion assignment to maintain control of the court, strengthen fragile majorities, and further his broader vision of the Court’s role during a particularly polarizing era in American politics.

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To read the paper, open HERE.

Amy Coney Barrett: Carving Her Own Path on the Court

By Dana A. Wakeman

Dana Wakeman is the Editor-in-Chief of Albany Law Review, Volume 89 and a member of the Albany Law Class of 2026. During her time in law school, Dana has interned twice in the Northern District of New York for two different judges as well as with the United States Government Accountability Office. Dana has also been selected as a Teaching Assistant for Torts, Constitutional Law I, and Constitutional Law II classes.

Prior to law school, Dana earned her Master's in Public Administration from American University and her Bachelor of Arts in Political Science from Siena University. While in graduate school, Dana worked for a research consulting firm, which also included presenting at the 2023 American Association for Public Opinion Research Conference. During her time at Siena, Dana participated in the Bonner Service Leaders Program, culminating in 2,500 hours of community service as well as a community engaged thesis project on drug diversion programs.

Dana has two forthcoming publications in Albany Law Review including “Setting a Higher Bar: Reforming Presidential Immunity” and “What's Next: Expanding State Constitutional Independence in New York.”

This paper provides an overview of who Justice Amy Coney Barrett is, why President Trump nominated her to fill a vacancy on the U.S Supreme Court, and how she has fulfilled or defied others’ expectations of her.

The paper describes the Fischer v. United States case, and Justice Barrett’s opinion that garnered criticism by conservatives. It also explains the Trump v. United States case, with a focus on Justice Barrett’s opinion that concurred with the majority only in part.

The paper then analyzes any common trends in Fischer and Trump in order to identify potential factors involved in Justice Barrett’s decision-making. Finally, the paper concludes by illustrating how Justice Barrett’s philosophy may impact future cases or opinions of the Court. 

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To read the paper, open HERE.

The Supreme Court’s Code of Conduct

An Analysis and the Likelihood of Success

By Kayla A. Curtin

Kayla Curtin is a 2024 graduate of Albany Law School. She was raised on her family’s potato farm in rural Steuben County, New York.

Prior to attending law school, Kayla earned dual bachelor’s degrees from Le Moyne College in history and political science. During law school, Kayla served as a law clerk at the Barbaruolo Law Firm and served as a bankruptcy fellow at Legal Aid of Western New York (LAWNY).

Kayla is beginning her legal career as an Assistant Public Defender for the Monroe County Public Defender’s Office in Rochester, New York.

Scandal is not a new concept to the United States Supreme Court. In the last several years, members of the current Roberts Court have faced scrutiny from the American public regarding their activities outside the courtroom. On November 13, 2023, the United States Supreme Court issued its first-ever Judicial Code of Conduct, based on the Judicial Code of Conduct set forth by the American Bar Association and the United States Code of Judicial Conduct.

The Supreme Court’s Code of Conduct is a direct response and an attempt at bandaging the oozing wound of controversy that has surrounded the Roberts Court. But the Supreme Court has been hearing cases where the Justices should have recused themselves due to acts of impropriety and other causes for decades. Despite all of this, the Code lacks methods of enforcement and other important procedural details for the Justices to follow regarding disqualification and recusal.

The first part of this paper will introduce the three codes of conduct and a brief background on their effectiveness, focusing on disqualification and recusal. The second part of this paper is a comparison of the three codes of conduct. Here, the paper makes an inference as to whether the Supreme Court’s Code goes far enough in terms of disqualification and recusal. Further, the paper examines whether the Justices are capable of being the ones to decide when they are disqualified or should recuse themselves. The third part of this paper is an analysis of past cases in which judges have refused to recuse themselves.  It also infers, based on the Supreme Court’s Code, whether the result would be different if the same or similar situation were to occur again. The fourth and final part of this paper is a conclusion and a proposal that if the Supreme Court does not propose additional canons or an effective enforcement mechanism, the Code may come to be known as a flimsy Band-Aid to cover a long history of controversy.

Author's Note: While this paper is critical of the judicial system, its purpose is not to lead readers to believe all judges fail to abide by the codes of conduct mentioned in this paper. Rather, this paper focuses on some of the more infamous failures to recuse, encourages all judges to continue holding themselves accountable, and acknowledges the importance of a partisan judge.

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To read the paper, open HERE.

Supremely Conservative Replacements

By Paige Gottorff

Paige Gottorff is a recent graduate of the Class of 2024 at Albany Law School.

Prior to attending law school, Paige earned a degree in Legal Studies at Grand Valley State University, Michigan, where she was a member of the Women’s Lacrosse Team. 

At Albany Law School, Paige served as Managing Editor for Research and Writing for the Government Law Review, Vol. 17, where she worked on the Writing Competition and edited second-year students’ notes and comments. She was also a member of the Albany Law Negotiations Travel Team and the Albany Law Student Trial Advocacy Competition Travel Team.  Additionally, Paige competed in numerous in-house moot court competitions.

Following the bar examination, Paige will be working as an Associate Attorney for Vahey Law Offices, PLLC, in Rochester, NY.

The United States Supreme Court has recently been on a history-making streak.  And not for admirable reasons, but for the alarming regularity with which the Court has been stripping individuals of their rights.

The current bench is the most conservative panel the Court has seen in ninety years.  This is frightening when pondering the trend expected regarding basic human rights cases about which the Court grants certiorari and opts to conceal from public scrutiny by deciding through the shadow docket.

Since the earliest of times, death has been a valid punishment for crimes with minuscule societal impact.  As history progressed, methods of execution began at the most barbaric levels and slowly shifted to consider the ethics of executing a fellow human being.  Presently, “more than seventy percent of the world’s countries have abolished capital punishment in law or practice.”  But in 2022, the United States was in the top five of the world’s countries that performed executions--fewer only than China, Iran, Saudi Arabia, and Egypt.

As a vast majority of death penalty cases are petitioned to the Supreme Court, the nine Justices who don the black robe are the same ones who “okay” the executions.  How has the United States gone from abolishing the death penalty to reinstating it and using it the fifth most frequently in the world?  A closer look at the individuals who have made and are currently making these critical decisions may give us a sense of what is really going on at this country's “Court of Last Resort.”

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To read the paper, open HERE.

Roberts’ Strategy as Chief Justice

Narrow or Not Amidst Recent Court Shifts?

By Priscilla Capuano

Priscilla Capuano is a graduating third-year student at Albany Law School. Prior to attending law school, she earned her bachelor’s degree from Siena College, where she majored in Philosophy and minored in Creative Arts.

While in law school, Priscilla interned at the Albany County District Attorney’s Office in the summer of 2022. She continued her work there by completing a Field Placement over the fall of 2022 and by volunteering in the spring of 2023. During the summer of 2023, Priscilla worked as a Summer Associate for Goldman Sachs. In the fall of 2023, she completed a field placement in the chambers of the Honorable Mae D’Agostino.

Priscilla was a member of Albany Law School’s Criminal Appellate Travel Team where she competed in the 2023 Herbert Wechsler National Criminal Law Moot Court Competition. She also competed in the 2023 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, where she was a finalist, and won the third best oral advocate award. She and her partner won the 2023 McGovern Senior Prize Trials.

As the Managing Editor for Production, Research, and Writing on the Journal of Science and Technology, Priscilla was involved in organizing and running the Journal's Write-on Competition in the summer of 2023. Until graduation, she is continuing her involvement in the Journal of Science and Technology and is serving as an Executive Editor for the Center of Judicial Process.

Amidst scandal, controversial decisions, and dramatic ideological shifts on the Court, Chief Justice Roberts attempts to maintain the Court’s reputation and legitimacy.

However, Roberts does not wield his former power as the deciding vote in closely divided cases. Roberts’ diminished power on the Court was hastened by the replacement of two liberal fixtures with new conservative Justices, tipping the balance of the Court to an overwhelmingly conservative majority. 

While Roberts does not dominate the Court as he did in recent years, as Chief Justice, he decides who writes the majority as long as he is not in dissent. The author of the majority opinion has a profound impact on the law, and has discretion over how broadly or narrowly the Court rules. Roberts’ proclivity to render narrow rulings is now in conflict with the conservative majority’s broad and dramatic decisions. Furthermore, a non-partisan and legitimate court is not easily achieved on a Court that renders partisan and often controversial decisions.

Thus, it is questionable how Roberts will achieve his goals on the distinctly conservative Court. Although it is unlikely that Roberts will regain his former power or lead a Court that is above legitimate reproach, he can implement different strategies to maximize results that best align with his vision for the Court.

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To read the paper, open HERE.

Relitigating Dobbs in a Conservative Court: The Potential Road from Justice Thomas and Natural Law

By James C. Ashley

James C. Ashley is a summa cum laude graduate of Albany Law School, class of 2023. He graduated with a bachelor’s degree in Spanish Linguistics from SUNY Albany, also summa cum laude.

At Albany Law School, James was an Executive Editor for Notes and Comments on the Albany Law Review, a Sponsler Fellow in Civil Procedure, and a Teaching Assistant in Lawyering. He was the winner of the 2022 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. James interned with the New York State Division of Human Rights, as well as with Cahill Gordon & Reindel LLP, where he will begin his career after the bar exam.

As early as 1991, reporters predicted that if selected for the Supreme Court, a Justice Clarence Thomas would one day vote to overturn Roe v. Wade.

At his confirmation hearing, he was questioned about his prior embrace of the doctrine of natural law—the belief in the existence of a higher law that can be discovered by human reason—to draw out his views on abortion. Thirty years later, the Supreme Court held, in Dobbs v. Jackson Women’s Health Organization, that the Federal Constitution does not provide protection for a woman’s right to have an abortion, with Justice Thomas voting to overturn Roe as predicted. He concurred separately, but with no explicit references to the natural law doctrine.

This paper examines Justice Thomas’s opinions on abortion for either implicit or explicit references to natural law. Then, it weighs the feasibility of several novel arguments that could be used to relitigate Dobbs before a conservative Court.

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To read the paper, open HERE.

Supreme Loss: A Largely Ineffective Supreme Court Without the Sandra Day O’Connor Swing

By Elise I. Butler

Elise I. Butler is a third-year student at Albany Law School. Prior to attending law school, she graduated from Hamilton College where she majored in Psychology and minored in Biology.

At Albany Law, Elise serves as Executive Editor for Notes and Comments on the Albany Law Review. She has been a Sponsler Fellow in Federal Civil Procedure, a teaching assistant in Criminal Law, and a Peer Writing Assistant. Elise competed in Albany Law’s Senior Prize Trials, where she finished as a semi-finalist.

In her final semester at Albany Law, Elise is currently interning for Judge Mae D’Agostino in the Northern District of New York.

Justice Sandra Day O’Connor is often referred to as the most influential woman in American history.  This is largely due to her fair, impartial, and reasoned votes as a justice on the U.S. Supreme Court.

O’Connor put her politics aside and voted not with the Republicans or Democrats, but with the side that deserved to prevail under the Constitution and law.  In today’s political climate, O’Connor’s reasoned, non-partisan voting is sorely missed.  Many hyperpolarized decisions reaching the Court today can be predicted based on the political affiliation of each justice’s appointer, something that was impossible with O’Connor on the Court. 

This paper explores the influence that Sandra Day O’Connor’s reasoned judgment had on the Court and on the law, and why it is sorely missed on the Court today.  This paper begins with a discussion of O’Connor’s judicial philosophy and influence on the Court and the law.  Next, this paper explores the political climate of today’s executive and legislative branches and their influence on the increased polarization of the judicial branch.  This paper concludes with an analysis of two of O’Connor’s opposing opinions on abortion and contrasts her reasoning for both with the reasonings provided in both the majority and dissenting opinions in the Court’s recent case, Dobbs v. Jackson Women’s Health Organization. 

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To read the paper, open HERE.

“Suppose This Were a Normal Law”—S.B. 8 Oral Arguments in the Pre-Post-Roe World

By Alice Broussard

Alice Broussard is a member of the class of 2023 at Albany Law School. She previously worked in publishing and education, and she graduated cum laude with a bachelor’s degree in English from Rice University.

At Albany Law, Alice is a member of the Albany Law Review and will serve as Executive Managing Editor of Vol. 86. She has been a Sponsler Fellow in Civil Procedure and is currently a Teaching Assistant in Lawyering. She interned with Judge Lawrence E. Kahn in the Northern District of New York during the summer of 2021 and is currently an intern at Empire Justice Center.

In May 2021, the Supreme Court agreed to consider a Mississippi law seeking to ban abortions after fifteen weeks. The state’s initial briefs, filed while Justice Ruth Bader Ginsburg was still alive, claimed nonsensically that “the questions presented in this petition do not require the court to overturn Roe or Casey.” In July, with Justice Amy Coney Barrett installed as part of the Court’s new 6–3 conservative majority, Mississippi filed a new brief: “Roe and Casey are egregiously wrong.” The case was argued in December, and a decision is expected this year.

 

But Texas, with the Court’s help, beat Mississippi to the punch. On September 1, 2021, a Texas law known as S.B. 8 went into effect. The law bans abortions after just six weeks or, ostensibly, when a fetal heartbeat is detected by ultrasound. Unlike previous heartbeat bills, S.B. 8 was written to evade judicial review by delegating enforcement to private citizens. This paper examines the S.B. 8 oral arguments in Whole Woman’s Health v. Jackson and United States v. Texas through the lens of judicial advocacy and, from the vantage of December 2021, briefly looks ahead to the consequences of the Court’s decisions.

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To read the paper, open HERE.

Third Parties in the Judicial Nomination Process: the Federalist Society and the Liberal Response

By Nicholas A. Alfano

Nicholas Alfano is a current 2L at Albany Law School. He graduated from Seton Hall University, where he majored in Political Science and Philosophy and minored in Economics. Nicholas is a founding member of the Catholic Law Students Association where he currently serves as treasurer. He has previously interned with the NYS Division of Consumer Protection’s Utility Intervention Unit.

In recent years, one of the most contentious issues in American politics has been judicial appointments. In the 2016 and 2020 presidential elections candidates, Donald Trump and Joe Biden promised who they would appoint to the judiciary. However, while Biden promised appointments of various professional and demographic backgrounds, Trump declared his judicial appointments, saying he would choose them by an outside group: the Federalist Society. The Federalist Society is an organization of libertarian and conservative lawyers that promote originalist and textualist interpretations of the Constitution and the law.

 

The Federalist Society is one of the most influential groups within the Republican Party, both allied in promoting legal conservatism. All three of Trump’s Supreme Court appointments were Federalists. The Federalist Society facilitates a robust network of conservative lawyers and legal activists for the Republicans to draw from for various positions, be it jobs within the legislature and executive or the judiciary (and many times both, with Brett Kavanaugh as the premier example). The Federalist influence on the court has had some noticeable effects. The tribunal took a rightward turn and became younger and less experienced but more connected with other legal conservatives.

 

Conversely, there exists no direct analog for Democrats and liberal lawyers, though not for lack of trying. Led by the American Constitution Society, liberals have been attempting to recreate the network the Federalists have built. Still, these efforts have not managed to rival the Federalists in reach and prestige so far, and, in the same token, this is due to several factors, including the lack of an attractive legal doctrine alternative to originalism and textualism. As such, liberals have advocated for other means to rebalance the courts, including court-packing and quick appointment of judges.

To read the paper, open HERE.

Brown v. Board of Education: How the Decision-Making Process Influenced the Ruling

By Taylor Farrier 

Taylor Farrier, a current third-year student at Albany Law School, grew up in Queensbury, NY. Prior to attending Albany Law, she earned her bachelor’s degree from the University at Albany in 2019, where she majored in Political Science and minored in Criminal Justice.

At Albany Law, Taylor is a member of the Phi Alpha Delta Law Fraternity and the Business Law Society. She interned with the Warren County District Attorney’s Office in the summer of 2021 and for the Honorable Kathleen B. Hogan for the New York Court of Claims in the summer of 2020. She wrote this paper for Professor Bonventre's Supreme Court Seminar.

There is no denying that Brown v. Board of Education is one of the most monumental cases in all of American judicial history. Overturning Plessy v. Ferguson was a long and hard-fought battle during the late nineteenth and early twentieth centuries. Following the Civil War, the equality that black individuals in the United States had long fought for didn’t arrive as seamlessly as many may have hoped. Even following the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, the country still had a long way to go in the process of constitutional equality between blacks and whites. 

While Brown v. Board of Education was undoubtedly a significant case, the unanimous decision of the justices doesn’t tell the whole story. Looking into the judicial philosophies of the justices on the Court during Brown, we get a deeper insight into how they were able to come to a unanimous decision. They did this despite differing ideologies and views, and how the judicial decision-making process influenced the outcome of the case. 

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To read the paper, open HERE.

The Supreme Court Sets the Bar, New York’s Court of Appeals Raises It

By Matthew Rimkunas

Matthew Rimkunas, a third-year student at Albany Law School and the Editor in Chief of the Center for Judicial Process, graduated magna cum laude from the University at Albany with a Bachelor of Science degree in Accounting and minors in both Business and Sociology.

Matthew has experience on both sides of the criminal justice system, interning at The Law Offices of Gerard V. Amedio, P.C. as well as the Rensselaer County District Attorney’s Office. He also interned at Ayco, a Goldman Sachs Company, where he worked on tax and estate planning matters. Presently, he is an intern with the Claims Bureau of the New York State Office of the Attorney General, assisting in the defense of tort and contract actions against the State.

Beyond Matthew’s internship experience, he was a participant in the 2019 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition and is currently a Research Assistant for Professor Patrick M. Connors.

The fundamental principles of federalism that ensure state integrity throughout the nation are nowhere more evident than in the state high courts. They are most easily observed in states like New York that vigorously protect civil liberties and frequently blaze the trails that other state—and federal—courts eventually follow. On numerous occasions, the New York Court of Appeals has rejected United States Supreme Court precedents as insufficient for the standards demanded by the New York State Constitution.

This paper highlights instances where New York’s high court went above and beyond the protections afforded by the Supreme Court. Each time it did, the Court of Appeals diverged from a federal constitutional standard to provide greater protections under its State Constitution. As a result, our state’s constitutional law jurisprudence has incrementally transformed into the preeminent body of law that New York is now so well known for. 

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To read the paper, open HERE.

Breyer and Cardozo: A Brief Comparison of Cautious Consequentialists

By Carol Sanchez

Carol Sanchez will be graduating from Albany Law School in the Spring of 2021. During her time at Albany Law, Carol served as a Teaching Assistant for Constitutional Law I, Constitutional Law II: First Amendment, Criminal Law, and Torts. She is currently an Associate Editor for the Albany Government Law Review.

Carol worked as a Summer Associate at Barclay Damon, LLP in 2019, followed by K&L Gates LLP in 2020. Additionally, during the Spring Semester of her 2L year, Carol interned for Global Foundries in Malta, New York. 

The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. – Benjamin Cardozo.

Cardozo urged that all judges seem to inevitably share similar motifs in their problem-solving approaches for questions of law. But what exactly is the “good” in judges’ work that endures centuries and ties seemingly dissimilar judges together?

This paper will compare the jurisprudence of two Supreme Court Justices serving over half a century apart, Stephen Breyer and Benjamin Cardozo, in search of more intricate and critical similarities in their legal methodologies beyond what lies at the surface. Specifically, although the late Cardozo and the incumbent Breyer have both generally been regarded as ideologically liberal judges, the purpose here is to uncover similarities in reasoning that transcend both the test of time and the oversimplification of their “labelling.”

While many of Cardozo’s opinions shed light on his general approach to reaching decisions, his lectures collected in The Nature of the Judicial Process weres revolutionary in that they were the first of their kind to meticulously, comprehensively, and transparently describe the “common law methodology [used] to explain appellate decision-making.” Cardozo elaborated four principles that guided his jurisprudence, and he urged that judges must inevitably make decisions that are guided by the spirit of the times, directly challenging the legal fiction of textualism in areas of intentional or unintentional statutory vagueness.

However, do these four guiding principles apply solely to Cardozo, or do other judges, such as Justice Breyer, also subconsciously follow similar guiding approaches and methodologies in their works? This paper will explore Breyer’s jurisprudential tendencies through the study of three of his judicial opinions, as well as through a brief study of the jurisprudence set forth in his book, ACTIVE LIBERTY.

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To read the paper, open HERE.

Justice Kagan: Are There Possible Conservative Undercurrents in Her, Otherwise, Liberal “Stream of Tendency?”

By Benjamin J. Wisher

Benjamin Wisher, a 2020 graduate of Albany Law School, was an Associate Editor of the Albany Law Review, a Dean Thomas Sponsler Honors Teaching Fellow, and a Research Assistant for Professor Patrick M. Connors.  Prior to attending law school, Benjamin earned a bachelor’s degree in Criminal Justice with a minor in Sociology from SUNY Albany.

After his first year of law school, Benjamin was a Summer Law Clerk for Rivkin Radler LLP in their Albany office.  During his second year of law school, Benjamin was a Judicial Extern to the Honorable Mae A. D’Agostino, District Court Judge for the United States District Court for the Northern District of New York.  Thereafter, Benjamin was a Summer Associate for Barclay Damon LLP in its Commercial Litigation practice group. Currently preparing for the bar exam, Benjamin looks forward to working at Barclay Damon LLP full-time.

The law is imperfect.  Imperfect because it leaves “gaps” to be filled and “ambiguities” to be cleared.  So, how do judges and justices rectify the law’s shortcomings?  As Justice Cardozo theorized (expounding on Justice Holmes’ earlier writings), in each of us, justices and judges included, lies a “stream of tendency.”  This “stream,” comprised of, both, subconscious and conscious “tides and currents,” give “coherence and direction to thought and action.”  For judges and justices, this results in judicial decisions.

Today, there is much ado about how the justices on the United States Supreme Court are perceived to be filling the law’s “gaps” with their respective political ideologies.  However, what is far less known, and surely far more interesting, are the instances in which the Justices buck their political leanings and vote against their typical voting bloc.

This paper applies these principles to one Supreme Court Justice: Elena Kagan.  Upon an examination of the instances in which Justice Kagan goes rogue on her liberal colleagues, a conservative “undercurrent” within her otherwise liberal “stream of tendency” can be deduced.  As evidenced by the research within, this paper concludes that Justice Kagan maintains a conservative “undercurrent” which flows against criminal defendants accused of heinous crimes against young women. 

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To read the paper, open HERE.

CHIEF JUSTICE JOHN G. ROBERTS: LIBERALS’ SAVING GRACE IN “HOT-BUTTON” CASES OR SUPREME COURT LEGITIMIZER?

By Lauren N. Mordacq

Lauren N. Mordacq is a third-year law student at Albany Law School. Prior to attending law school, Lauren attended Robert Morris University (Illinois) and was a member of both the women’s softball and volleyball teams, while earning degrees in both Business Administration and Paralegal Studies.
While attending Albany Law School, Lauren has served as an intern to the Honorable Daniel J. Stewart and to the Honorable Christian F. Hummel, both federal magistrate judges for the United States District Court for the Northern District of New York. Additionally, she currently serves as the Executive Editor for Symposium for the Albany Law Review, Volume 83 and works as a teaching assistant for Professor Redwood’s Constitutional Law.

Upon graduation from Albany Law School in May, Lauren will be serving as an Appellate Court Attorney for the New York State Supreme Court, Appellate Division, Third Department.

As one commentator has observed, “Chief Justice John Roberts’ recent votes with the liberal members of the Supreme Court have given rise to speculation he has become the court’s new swing vote, but court watchers say he has not suddenly moved to the Left.”

Justice Anthony Kennedy’s retirement from the Supreme Court has left an opening for another Justice to fill the void as a swing vote.  Over the last several years, Chief Justice John Roberts has dealt some major blows to the conservative agenda as a “swing vote” in 5-4 decisions involving “hot-button” issues.

Most notably, Roberts: (1) authored the opinion upholding the Affordable Care Act; (2) voted to block the Trump administration from adding a citizenship question to the census; (3) voted to block a Louisiana abortion law from going into effect; and (4) essentially voted to temporarily block a Trump administration asylum policy.  By siding with his liberal counterparts, some argue the Chief Justice is defending the integrity of the Court and preventing a partisan process.  Others simply say this is the Roberts practicing judicial restraint.

Maybe the Chief Justice is doing his best to do equal right in his role as the Supreme Court’s leader, and that means being the “swing vote” when the situation calls for it.  Chief Justice Roberts appears to be somewhat of an enigma in terms of his judicial philosophy, inasmuch as he has demonstrated his belief in not having one. But maybe that is his greatest strength.

In his role as the Court’s leader, he has become its legitimizer and defender when its integrity has been called into question by siding with liberal Justices in attempts to de-politicize the Court. With a solidified conservative majority on the Court, we could see an interesting voting record from the Chief Justice in the coming months on “hot-button” issues in an effort to lower political tensions and secure faith in the judicial system.  
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To read the paper, open HERE.

1 IN 8: A Look at Failed Nominations to the Supreme Court

By: Robert F. McQueen

Robert F. McQueen graduated from Albany Law School in 2019.  He received his bachelor’s degree in The Study of History from Iona College, during which time he spent a semester abroad at the Marino Institute of Education in Dublin, Ireland.  The experiences of his semester abroad ignited a deep love for international travel; he has since visited a total of forty nations spanning five continents.
Prior to attending law school, he worked for eight years in the billing department of an environmental engineer firm.  During his time at Albany Law School, Robert was an active member in many of the school’s student organizations. He served as a 2L and then 3L Class Senator on the Student Bar Association, where he used his voice and vote to advocate for the greater funding of law school events; he played on the school’s rugby team for all three years, which elected him, twice, to serve as their Director of Marketing; he co-founded the Albany Law School Gaelic Law Society, for which he was elected the club’s first Vice-President and second President; and he was even granted an honorary seat to serve as the Social Director of the International Law Society.



The United States Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.”  This provision of the Constitution has had a straightforward, plain-reading interpretation: it is the duty of the President to choose and nominate candidates for the Supreme Court; and a majority vote in the Senate provides its consent of the nominations (presumably, but not necessarily, having tendered advice along the way).  Alternatively, the Senate can deny consent either with a vote rejecting a nomination, or by refusing to take any action on a nomination.

A great amount of debate occurred at the Constitutional Convention regarding the methodology and criteria for court appointments, which ultimately led to the adoption of the language used in Article II, Section 2.  The convention delegates seem to have assumed: judicial candidates would be selected and confirmed, based on their individual merit rather than favoritism.  John Adams—absent at the Constitutional Convention—was the only Founding Father to rightfully foresee the future rise of political parties; and, that partisan dynamics rather than merit alone would become a controlling consideration as to whether or not the Senate confirms a particular nomination.

To read the paper, open HERE.

The Racial Jurisprudence of Justice John Marshall Harlan I

By Julie Bentzen

Julie Bentzen is a 2019 graduate of Albany Law School. Julie graduated cum laude from St. Michael's College with, a major in history and minors in Spanish and Global Studies. Prior to law school, Julie worked at the New York State Department of Labor and at the New York State Department of Public Service. 
During law school, Julie interned at Lombardi Aguilar Group, in Panama City, Panama, and at the Center for Internet Security, Inc., in East Greenbush, NY. She also served as the Managing Editor for Submissions on the Albany Government Law Review, 2018-2019 editions.
Julie is currently a law clerk at Jackson Lewis, P.C., in Albany, NY, in their Government Relations department.

Justice John Marshall Harlan I is known as the Great Dissenter for his famous dissents regarding the civil rights of African Americans in the post-Civil War era.  Appointed by President Hayes, the first Harlan served from 1877-1911.  Prior to the New Deal era, justices did not generally issue dissenting opinions, a tradition that began with the precedent set by Chief Justice Marshall.   Obviously, as evidenced by his famous moniker, Justice Harlan clearly did not subscribe to that precedent.  Further, the justice was known to be quite fiery on the bench and staunch in his opinions.  As quoted by the New York Tribune:

Several times he [Harlan] turned in his chair so as to face the Chief Justice and Associate Justices Field and Gray, at whom he fairly glared as he shot forth sentences laden with feeling such as probably never before found expression from an Associate Justice of the Supreme Court in a dissenting opinion. Old lawyers who had practiced at that tribunal for more than a quarter of a century sat aghast as sentence followed sentence.

Most often recognized for his lone dissent in Plessy v. Ferguson, Harlan’s criticism of the doctrine of “separate but equal” in that case was at last supported in 1954 when Brown v. Board of Education overruled Plessy and the constitutionality of “separate but equal” accommodations for the races.  Yet, Justice Harlan was seemingly full of paradoxes regarding his views on race, not only in his writings, but in his life.  Born in anti-bellum Kentucky, he and his family were slaveowners.  However, during the Civil War, Harlan served for the Union.  He initially did not support the emancipation of slaves, but as several of his dissents attest, Harlan later advocated for the equal rights of African Americans. 
This paper will discuss Justice Harlan’s racial jurisprudence during his tenure on the Supreme Court, focusing mainly on arguably his most famous dissent, Plessy v. Ferguson, briefly touch on the Civil Rights Cases, and will include analysis of his racial beliefs as evidenced by his lectures and decisions.  The paper will then discuss several of Harlan’s cases which did not advocate for civil rights, and finally Harlan’s belief in incorporation of the Bill of Rights through the Fourteenth Amendment.  As a whole, the paper will seek to explore the contradictions innate in this complex judicial figure and his jurisprudence.
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To read the paper, open HERE.

Judicial Activism and Restraint: Scalia’s Originalism and Jackson’s Pragmatism

By Howard Carter

Howard Carter is currently in his final semester at Albany Law School. Howard is a retired U.S. Navy SEAL Master Chief who served in the SEAL Teams from 1990 to 2012. Howard has bachelors’ degrees from Boston University and The Massachusetts College of Liberal Arts, as well as a Master’s Degree from Dartmouth College. 


The author views the Court’s authority as gained in Marbury v. Madison (1803).  This authority gained in Marbury is described under the modern context of conservative and liberal judicial politics and philosophy.  The topic then narrows to a comparison of liberal and conservative sub sets: pragmatism and originalism.  The originalism of Justice Antonin Scalia and pragmatism of Justice Robert Jackson are compared and contrasted in order to look at two particular justices differing methodologies.  The author finishes the analysis with comparison and contrast of Justice Jackson’s dissent in Korematsu v. United States (1944) and Justice Scalia’s dissent in Hamdi v. Rumsfeld (2004).

The United States Constitution does not explicitly state that the Supreme Court has the power of constitutional review.  Due to this lack of authority, one of the first important constitutional law cases is Marbury v. Madison in 1803.   Marbury displays the early Court’s tenuous legitimacy and can be viewed as the Court’s assertion of power.

Current Chief Justice John Roberts stated that prior to Marbury, “the Supreme Court was a court of law, but it wasn't established as a constitutional court.  So, its early decisions tended to be just everyday run-of-the-mill legal disputes, not great constitutional questions.”

As such, it is sixteen years after the adoption of the United States Constitution when Chief Justice John Marshall asserts power with his opinion in Marbury: “ It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Marbury is a political case.  It is a case where the Justices grapple with the legitimacy of the Court to decide on an action that impacts a political outcome.  It is considered within the context of the politics in which the case arose.   In Marbury the Court balances the political by grappling with the question of the overall nature of the Court’s authority first, and the specifics of jurisdiction second.

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To read the paper, open HERE.

“The Least Dangerous Branch”

The Politicization of the Judicial Branch in the U.S. and Germany
By Suzanne Foote

Suzanne Foote is a third year law student at Albany Law School, she holds a B.S. in History from The College at Brockport, SUNY, with a dual minor in Environmental Studies and Political Science. While attending Albany Law School she has interned with the Honorable Pater W. Hall of the United States Court of Appeals for the Second Circuit and the New York State Department of Agriculture and Markets Counsel’s Office and serves as the Executive Managing Editor for the Albany Law Review, Volume 82. Upon graduating in May, 2019, she will be serving as an Assistant Court Attorney for the New York State Supreme Court, Appellate Division, Third Department.
Suzanne’s paper was prepared for Professor Bonventre’s Supreme Court Seminar in the Fall of 2018.

Though they may have a judicial branch, constitutional democracies differ significantly in the ways these branches operate and the powers that may be exerted.  Judicial institutions, no matter the setup, are not free of political pressures.Yet, they may be less partisan than we see through the United States Supreme Court.

The judicial branch will undoubtedly always be political in nature because of the importance of the issues these courts decide—specifically, the individual rights of citizens under the governing constitutions. To examine the political pressures faced by judicial systems, this essay will examine the United States Supreme Court as compared to the German Bundesverfassungsgericht (“German Constitutional Court”).

The United States Supreme Court serves as a representative of a court vested with the right to review the actions of other branches of an otherwise co-equal government and to determine the constitutionality of their actions,. It also possesses other broad powers to decide non-Constitutional issues as the federal government’s “court of last resort.”

By contrast, while the German Constitutional Court represents a separate judicial body, which has been granted the power to decide upon constitutional issues, the court is limited to only these constitutional issues. By examining the similarities and differences of these two bodies, it can be concluded that despite the differences, both types of judiciaries are subject to political pressure and politicization due to role the judicial body plays in the federal government of each country.

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To read the paper, open HERE.

The Chief Justices’ Marriage to Stare Decisis

An Analysis of Burger’s, Rehnquist’s, and Roberts’ Relationship with Precedent

By Kieran T. Murphy

Kieran Murphy, a second year student at Albany Law School, is a member of the Albany Law Review, an associate member of the Anthony V. Cardona '70 Moot Court Board, a Dean Thomas Sponsler honors teaching fellow, and President of the Class of 2020.
Kieran has served as a judicial extern both to the Hon. Thomas J. McAvoy at the United States District Court for the Northern District of New York, and to the Hon. Judge John C. Egan, Jr. at the NYS Supreme Court, Appellate Division, Third Department. He has received multiple moot court awards, including the Hon. Judith S. Kaye Advocate Award from the New York State Bar Association.
Prior to attending law school, Kieran earned degrees in Integrative Neuroscience and Economics from Binghamton University, graduating in 2017. This summer, Kieran will be at the law firm of Milbank, Tweed, Hadley & McCloy, LLP in Manhattan as a summer associate. This paper was prepared for Prof. Bonventre's Supreme Court Seminar in the fall of 2018.

“I don’t get to pick and choose which Supreme Court precedents I get to follow . . . I follow them all.”   During his controversial nomination process, now-Justice Brett Kavanaugh sat directly in the lap of stare decisis while answering Senate Judiciary Committee questions—a fallback that has become commonplace for recent judicial nominees.

For decades, Supreme Court Justices have relied on stare decisis to skirt difficult questions concerning personal or political views on case law, as well as to maintain a neutral image of balance at the judiciary.   What becomes most important, however, is not how precedent is used as a talking point during the confirmation process, but how the doctrine plays out on the Court after a certain Justice has been confirmed.

The stare decisis doctrine has monitored the Court for hundreds of years, dating back to eighteenth century English common law. Stare decisis et non quieta moevre, translated to mean “to stand by matters that have been decided and not to disturb what is tranquil” is the idea that, in order to maintain uniformity among changing courts, prior decisions must stand as final word. While clear in translation, most courts have maintained that, while stare decisis is a vital element of judicial decision making, it “is a principle of policy and not a mechanical formula to the adherence to the latest decision.” As such, interpretations of the doctrine at the federal level have been severely scattered due to its inherent flexibility.

The dichotomy that exists between the importance of the Supreme Court’s marriage to precedent and the obvious, fast-changing social policies of the 20th and 21st centuries is an interesting one. While the Court’s foundational philosophy revolves around a need to maintain stability in decision making, the fast-changing social construct of today’s world makes doing so nearly impossible in certain situations. The implementation of stare decisis in the Justices' chambers as a result of this ongoing social pressure is much more important than their pre-written speeches on Capitol Hill. As such, this paper will focus on the doctrine’s evolution as it relates to three separate, recent eras of  the Supreme Court: (1) the Burger Court, (2) the Rehnquist Court, and (3) the current Roberts Court.

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To read the paper, open HERE.