Memo to the President (and his opponents): Ideology Still Counts

By David A. Strauss

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The impressive article by Lee Epstein, Andrew Martin, Kevin Quinn, and Jeffrey Segal tells us something illuminating about the behavior of Supreme Court Justices.[1]  But I do not believe that the article tells us what it seems to tell us.  Professor Epstein and her co-authors seem to say that Justices routinely change their views, so that a President should not be too concerned about the ideology of prospective appointees, and the people who might oppose those appointees should not be too concerned, either.  As Professor Farnsworth demonstrates in his excellent commentary,[2] the Epstein et al. paper does not justify such a conclusion, and the authors’ explicit claim is more modest than the tone of the article perhaps suggests.

In any event, I do not think that the Epstein et al. paper refutes, or—again contrary perhaps to appearances—even purports to refute the most plausible version of the “conventional wisdom” that the authors say they are challenging.  I actually think the conventional wisdom is much closer to the view that Epstein et al. embrace—that Justices are systematically unpredictable—than it is to the view they reject.  But whatever the conventional wisdom is, the most accurate account is more complex than either “they all change” or “they never change.”

Jurisdictionality and Bowles v. Russell

By Scott Dodson[*]

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On June 14, 2007, the Supreme Court decided Bowles v. Russell,[1] a case watched primarily by procedure geeks but one which may have enormous impact for courts and litigators.  It addressed a ubiquitous but confusing question of jurisdictional characterization:  when is a limitation “jurisdictional,” and when is it not?  Litigators encounter these questions all the time in statutory coverage issues, in time limitations, and in a host of other preconditions.  Whether a particular limitation is jurisdictional or not can be an important question, for jurisdictional limitations are not subject to waiver or equitable exceptions, may be raised at any time, and obligate courts to monitor and raise them sua sponte.  In Bowles, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional.