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Untangling The Legal Lexicon For Barrett Hearings

Want a guide to the legal terms-of-art thrown around the hearing room? We’ve got you covered.

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With millions of Americans tuning in to watch Amy Coney Barrett’s confirmation hearings, it’s a good time to make sure you have your legal jargon down pat. LNGenZ presents a quick primer on terms you may hear.

Amicus or Amici:  When appellate courts (including the Supreme Court) consider a legal issue, outside attorneys and groups can suggest the court rule a certain way. A so-called “friend of the court” brief, an amicus brief, is simply a legal essay written to show a court how that attorney or group believes the issue should be analyzed. It provides a roadmap for the author’s preferred analysis and reasoning, suggesting a certain result.

The National Rifle Association, for instance, would likely file an amicus brief in any Second Amendment case before the Supreme Court. It’s common for advocacy organizations to do so.

United States Supreme Court

Dispositive:  A fact that is decisive when answering a question of law. Dispositive facts resolve a legal dispute altogether (once they are proven with necessary certainty).

En Banc: In federal appeals courts, cases are typically heard by three-judge panels. If the court is dealing with an especially significant legal issue, or when requested by a losing party from a three-judge panel, the full court of all the appeals judges in that circuit may hear the case. This is called en banc review.

Precedent: A precedent is simply a prior ruling on the same or similar legal issue.

Stare Decisis: A legal maxim, stare decisis or “stand by decided matters,” is the legal principle that prior rulings have value when making decisions today. Because people depend on predictability from the courts, wild swings in judgments are ill-advised for a stable society.

All federal courts are bound to uphold Supreme Court precedent. Stare Decisis means that the Supreme Court should follow its own previous rulings on an issue, unless there is some truly compelling reason to stray from what is settled.  This is a principle followed by the court generally, not a law governing the Supreme Court.

State Action Requirement: This is a requirement that government action violates a person’s rights in order for a violation of the 14th Amendment to be successfully claimed. It becomes important because determining who is a “state actor” means deciding who can be sued for a violation of rights. In 2001, for instance, the Supreme Court ruled in Brentwood Academy v. Tennessee Secondary School Athletic Association (TSSAA), that an interschool sports association that regulated sports among Tennessee schools was a state actor. The TSSAA find Brentwood, saying there were recruiting violations for its football team. Because the TSSAA was declared a state actor, Brentwood was able to allege violations of its constitutional rights.

Injunction: This is a court order requiring someone to do something, or stop doing it. It’s issued by a judge to prevent further damage to a person’s interests through the action or inaction of another. Often times injunctions are granted on a temporary basis, until a full hearing on the issue may be held. Teachers, for instance have asked courts for an injunction to prevent schools from re-opening for in-person classes claiming they weren’t safe.

Universal Injunction: This term describes an injunction that covers all possible affected parties.  These have become more common since Donald Trump became president. Attorney General Bill Barr wrote in 2019, “During the eight years of the Obama administration, 20 nationwide injunctions were issued while the Trump administration has already faced nearly 40.”

At least one Supreme Court Justice has written on the issue directly. Justice Gorsuch wrote in an order dialing back a universal injunction:

“The real problem here is the increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”

Scott D. Cosenza, Esq. is Legal Affairs Editor of and Scott writes extensively on legal issues and is the Policy Director for One Generation Away.

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