Inside the Courts: Structure, Composition, and Working Methods of the Austrian Constitutional Court and the United States Supreme Court Compared

Inside the Courts: Structure, Composition, and Working Methods of the
Austrian Constitutional Court and the United States Supreme Court Compared

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‍ Tobias Huber & Steven G. Dabney, Jr.*

‍ ‍Introduction‍ ‍ ‍

Austria and the United States, sitting over 8,000 kilometers, or 5,000 miles, away from one another, differ in numerous respects—perhaps most fundamentally, in the basic architecture of their legal systems: the former is rooted in civil law tradition, while the latter operates under common law. Yet in one notable regard, the small Republic of Austria and the vast United States share the podium: each country laid the foundations for one of the two prevailing models of constitutional review worldwide.[1] ‍

Constitutional review, in a narrower sense, refers to a court’s power to declare acts of the legislature unconstitutional.[2] While these two systems depart on the question of whether this mandate should be fulfilled unilaterally, by a single specialized court, or collectively, by a broad category of courts, both systems have a supreme organ of the judiciary that retains the final say on constitutional questions. ‍ ‍

The genesis of these courts, as well as the frameworks they operate in, have attracted considerable attention in legal scholarship.[3] Comparative analyses of the characteristics of the two systems have likewise been undertaken.[4] What follows now is, therefore, not intended as an exhaustive comparative analysis of the two systems in their entirety. Rather, the focus will be on a dimension that has received considerably less scholarly attention: the organizational framework of the courts, with particular emphasis on their institutional design and how they work within the legal frameworks governing them.‍ ‍

The aim of this paper is to outline the composition, methods of operation, and decision making of the Austrian Constitutional Court and the United States Supreme Court. The first two parts of the article set out the core organizational structures and methods of decision-making of each court. Part III explores the courts’ similarities and differences, reflecting on which court may demonstrate greater effectiveness in specific areas—and what each court might take away from the other.‍ ‍‍ ‍

I.  Composition, Functioning, and Working Methods of the Austrian Constitutional Court

‍ ‍A.  Characteristics of the Austrian Constitutional Review

In Austria, the institutional framework for judicial review of legislation is centralized in one single entity: the Austrian Constitutional Court (“Verfassungsgerichtshof”). Drawing upon the concept brought to its definitive form by Viennese legal scholar Hans Kelsen[5]––who referred to the Austrian Constitutional Court as his “liebstes Kind”[6]––the Court[7] has remained largely unchanged since its establishment in 1920 in terms of its powers and basic organizational structure.[8]

With respect to some of its current powers and specific institutional arrangements, the Austrian Constitutional Court had a predecessor in the Imperial Court of Justice (“Reichsgericht”)[9] that heard jurisdictional disputes and acted as a special administrative court for the Austrian part of the Austro-Hungarian Empire (indeed, the powers of the Imperial Court of Justice were designed far more narrowly, as it lacked the authority to review laws for their constitutionality).[10] Furthermore, the origins of the Court’s current power to rule on actions asserting the responsibility of supreme authorities can be traced back to the special State Court of Justice (“Staatsgerichtshof”), which was established in 1867.[11] ‍

Yet, Austria ventured into uncharted territory when incorporating the statutes about the Constitutional Court into the Austrian Constitution of 1920––which is the twelfth-oldest constitution still in force around the globe[12]––as it was the first constitution worldwide to effectively implement a system of centralized legal constitutional review.[13] Emphasis, however, must be placed on centralized: Austria did not invent judicial review. The concept can be traced back to the U.S. Judiciary Act of 1789[14] and the Federalist Papers.[15] First applied by the U.S. Supreme Court itself in 1803 in the case of Marbury v Madison,[16] the U.S. model subsequently influenced early debates about constitutional jurisdiction in Germany and Austria.[17] Notably, supreme courts in several Latin American countries were likewise empowered to rescind unconstitutional laws well before the concept became established in Europe.[18] The distinctive and innovative feature about the Austrian system, however, was the introduction of a centralized system of constitutional adjudication, vested in a separate and specialized constitutional court.[19] In the course of the twentieth century, this concept was adopted by numerous other constitutions,[20] with the German Federal Constitutional Court being the most prominent example.[21] The concept “of a separate constitutional court may be said to be Austria’s leading export” in the legal world.[22]‍ ‍

The Austrian Constitutional Court, within the system of separation of powers, is an organ of the judiciary, whose decisions may invalidate acts of the legislative and executive branch.[23] The Court is supposed to guarantee that, as Austrian scholar Walter Berkaput it, “law is always above power.”[24] Its central mechanism to fulfill this task is its authority to review general executive orders (ordinances), laws, and international treaties for their conformity with higher-ranking law. If the Court finds a provision to be unlawful, it may rescind it. If necessary, the Court can even rescind statutes with constitutional status in case they conflict with the entrenched principles of the Austrian Constitution[25] (to date, however, the Court has exercised this power only once, invalidating a constitutional provision in a case decided in 2001).[26] For this reason, the Court is often referred to as a “negative legislator.”[27] This power is exclusive, no other entity in the Austrian legal system is entitled to examine the legality of laws.[28] At the same time, the Constitution allows all other courts to challenge the unlawfulness of ordinances, laws, or international treaties before the Constitutional Court.[29] However, the Court may not only act upon application by a court or an affected individual,[30] it can also act ex officio when the provision is applicable in a pending proceeding before the Court.[31]‍ ‍

Unlike Germany, the Austrian federal states do not have their own constitutional courts.[32] The Austrian Constitutional Court’s competence of review therefore applies to both federal and state laws (“Bundesgesetze und Landesgesetze”).[33] Accordingly, the Constitution seeks to ensure that the Court’s institutional structure reflects the federal character of the Austrian legal system: first, some of the Members of the Court[34] are nominated by the Federal Council (the federal state chamber of the legislature).[35] Second, three Members of the Court must have their permanent place of residence outside of Vienna.[36] Whether the latter requirement genuinely contributes to embedding the federal realities of the Austrian legal system within the structure of the Court, however, appears highly doubtful.‍ ‍

In addition to its competence to review legislation, the Court is entrusted with two other main responsibilities that define the core of its mandate:[37] it examines whether decisions of lower administrative courts respect fundamental rights[38] and it decides on conflicts of jurisdiction between state institutions (to a limited extent).[39] Furthermore, the Court exercises powers that do not necessarily have to be exercised by a constitutional court.[40] These powers include to review the lawfulness of elections,[41] to decide on trials of officials,[42] or to rule on financial claims against the federal government, states, and municipalities, to name a few.[43] On the other hand, the Austrian Constitutional Court does not have the power to review court rulings in civil and criminal matters or from the Supreme Administrative Court.[44]‍ ‍

As a result, the Court handles a large number of cases every year. In 2024, the Court dealt with 5,376 newly pending cases and 989 cases from the previous year.[45] It is worth noting that it settled 5,346 of these cases,[46] averaging only seventy-nine days per case.[47] These figures—which are comparatively good by international standards—can be attributed to the well-thought-out organization and working methods of the Austrian Constitutional Court.‍‍ ‍

B.  Composition of the Constitutional Court ‍

i.  Organizational Framework‍‍

In Austria, as a civil law country, the legal provisions governing the Constitutional Court are entrenched in the Austrian Constitution and further specified in the relevant Constitutional Court legislation.[48] The organizational framework of the Court is regulated in considerable detail in Articles 137 to 148 of the Austrian Federal Constitutional Act (FCA) (“Bundes-Verfassungsgesetz [B-VG]”). Further provisions are set out in the Constitutional Court Act of 1953 (“Verfassungsgerichtshofgesetz [VfGG]”) and in the Rules adopted by the Court itself in 1946.‍ ‍

The Austrian Constitutional Court consists of fourteen members: one President of the Court (“Präsident des Verfassungsgerichtshofes”), one Vice-President of the Court (“Vizepräsident des Verfassungsgerichtshofes”) and twelve other judges, called additional Members of the Court (“weitere Mitglieder”).[49] Plus, there are six substitute Members.[50] As to numbers, the Austrian Constitutional Court corresponds to most other European constitutional courts.[51] To manage its heavy workload, the Court has its own administrative apparatus, which currently consists of around 110 employees, including both jurists (legal staff) and other personnel.[52] A significant share of the Court’s legal staff consists of law clerks (“Verfassungsrechtliche Mitarbeiter”), who help the responsible Members of the Court draft the Court’s opinions. The law clerks usually are recent law school graduates, most of whom have completed a Ph.D. in legal studies or worked as research and teaching assistants at a university, and stay with the Court for approximately four years.[53] Usually, they strive for a promising career afterwards—some Members of the Court were once law clerks themselves.[54]‍ ‍

The President, the Vice-President, all additional Members, and substitute Members of the Court must hold a degree in Austrian law and have at least ten years of professional legal experience.[55] In regards to what qualifies as “professional legal experience,” the Constitution explicitly lists judges, administrative officials (civil servants), and university law professors as examples.[56] A specified number of Members must be appointed from this group of professions; however, in practice, the Court regularly includes attorneys among its members as well.[57] As most other European countries, the Austrian Constitution therefore stipulates a monopoly of jurists at the Court.[58] Special knowledge in the field of constitutional law is, however, not required.‍ ‍

Currently the Court consists of eight university professors, three attorneys, two administrative officials (civil servants), and one judge from the Supreme Administrative Court.[59] This shows that the constitutional regime governing the composition of the Court results in a mix of several legal professions in practice. Currently, four of the fourteen constitutional judges are women.[60]‍ ‍

ii.  Appointment of New Members of the Court‍‍ ‍

All new judges—including the President and the Vice President of the Court—are appointed through a coordinated process with the legislator and the executive branch working together and sharing nomination rights.[61]‍ ‍

The President of the Court, the Vice President, six other Members and three substitute Members are nominated by the federal government; three other Members and two substitute Members are nominated by the federal chamber of the legislature (National Council); and three other Members and one substitute Member are nominated by the federal state chamber of the legislature (Federal Council).[62] If an appointment is made by one of the legislature’s chambers, there is, as in the United States, a hearing procedure. A key observation at this point: more than a half of the overall Members of the Court are nominated by the executive branch.‍ ‍

After either the federal government or one of the two chambers of the legislature proposes a candidate to the Federal President,[63] depending on the respective responsibility for proposing a new member, the Federal President then formally appoints the new member.[64] Although the Federal President is bound by the proposals, they have a margin of discretion as they can always reject a proposal.‍ ‍

In practice, this procedure results in political parties effectively controlling the nomination process:[65] although the judges do not have to be (officially) affiliated with political parties, “they usually have a reputation for being politically oriented in a certain direction.”[66] This has repeatedly given rise to criticism of a possible political dependence of constitutional judges;[67] however, in an overall perspective, such criticisms arose only sporadically and typically dissipate quickly—most probably because the Members of the Court are usually “very keen to behave strictly neutrally”[68] and the case law of the Court does not provide objective evidence of partisan bias in the Court’s decisions either.[69]‍ ‍

In addition, the Austrian Constitution establishes particularly strict rules (by international standards)[70] of incompatibility with other state offices for the Members of the Court: Members of the federal government, a state government, the federal and the state legislator(s), or the European Parliament may not serve on the Court.[71] Any person who has held any of these positions within the past five years prior to appointment is ineligible as President or Vice President of the Constitutional Court.[72] Originally, these incompatibility provisions applied exclusively to the President and the Vice President of the Court. Consequently, they affected only a part of the Court’s composition. However, presumably in response to a case involving a former Federal Minister of Justice who moved almost seamlessly from his governmental office to being a Member of the Constitutional Court and resigned from his Court position after only three years (reportedly to pre-empt impeachment as a Member of the Court, according to media speculation),[73] these rules have recently been tightened: following a constitutional amendment in 2024, the restrictions were extended to all (other) Members of the Court. Now, any person who has held one of the aforementioned positions within the preceding three years is ineligible for appointment as a Member or a substitute Member.[74] The shift from being a high-ranking politician to being a constitutional judge now depends on having completed a political “cooling-off” period of several years. Thereby, the independence of the Court should be preserved, and patronage of office be prevented.‍‍ ‍

iii.  Status and Tenure of the Members of the Court‍‍ ‍

Austrian constitutional judges do not perform their duties at the Court on a full-time basis.[75] Those who are judges, lawyers, and university professors therefore remain active in their main profession; only administrative officials are released from their duties.[76] The rationale of this concept is to broaden the Court’s substantive expertise by allowing practical experience from different areas of legal practice to be incorporated into its deliberations.[77]

Reality, however, deviates from this idea: in practice, the original profession becomes subordinate to the activity as a constitutional judge.[78] This is primarily due to the current workload at the Court.[79] The question of whether the concept of holding the position of a constitutional judge as a secondary office remains appropriate seems worthy of discussion[80]—especially against the backdrop of the Court’s volume of cases and potential conflicts of interest of the Members.‍ ‍

The age limit for Members and substitute Members of the Court is seventy years. Their term of office expires on December 31, of the year in which they attain that age.[81] Things were, however, not always this way: the age limit was introduced by the Constitutional Amendment of 1929, nine years after the Austrian Constitutional Court was established.[82] Under the original version of the FCA of 1920, members had been appointed for life.[83] The introduction of a mandatory retirement age was based on the intention to “de-politicize” the Court[84] by regulating the office of a constitutional judge more closely in accordance with the principles applicable to ordinary judges, among which was the establishment of an age limit.[85] Indeed, establishing a high retirement age is considered to be the most effective safeguard of judicial independence within a constitutional court.[86] The rather long term of office (compared to other European countries, where fixed-terms usually range, for example, from nine years in Portugal to twelve years in Germany)[87] leads to a high degree of continuity, so that many judges have been with the Court for more than two decades.[88] In Austrian legal scholarship, however, it is debated whether the age limit is too high, given the general statutory retirement age in Austria being sixty-five.[89] Currently, however, there are no indications that the legislature intends to lower the age limit; rather, it may be assumed that the current legal framework has proven its worth.[90] It may furthermore be pointed out that the term of office of judges at the European Court of Human Rights likewise ended upon reaching the age of seventy until a few years ago[91] (in 2021, the previously explicit age limit was repealed and now applies implicitly, effectively resulting in an age limit of seventy-four years).[92]‍ ‍

The Members of the Court are independent in the exercise of their legal office.[93] Parties to the Court’s proceedings do not have the power to challenge Members of the Court on grounds of bias.[94] The law, however, provides for grounds of exclusions that must be observed by the judges ex officio.[95]‍ ‍

In certain cases, particularly if a Member disregards three successive invitations to attend hearings of the Court without providing an adequate excuse,[96] has shown themself unworthy of the respect and trust required by the office (through conduct in or outside office), has grossly violated the duty of confidentiality, or becomes unfit to perform their official duties due to physical or mental incapacity,[97] the Court can decide to remove a Member from office with a two-thirds majority of the Members. To date, however, this has never happened.[98]‍ ‍

C.  Decision Making and Working Methods‍ ‍

i.  The “Plenary” as a Unified Adjudicatory Body and the
“Small Assembly” as Its Efficiency Boost‍‍ ‍

Unlike Austria’s other two supreme courts—the Supreme Administrative Court and the Supreme Court of Justice—, the Constitutional Court does not operate in panels (“Senaten”).[99] Rather, it has a single decision-making body: the plenary (“Plenum”). The rationale for the Court always adjudicating as one single decision-making body—as noted, unique among Austria’s three supreme courts—becomes clear when looking at the early debates surrounding the establishment of constitutional adjudication in the nineteenth century.[100] It was agreed at the time, as remains the case today, that the powers of nomination should be shared between the legislator and the executive branch. This arrangement, however, was accompanied by concerns that the Court might be divided into two separate panels, one composed of members nominated by the legislator, and the other of members nominated by the executive branch.[101]Therefore, members of the 1848 Kremsier Parliament “expressly requested that the Court always act as one entity.”[102]‍ ‍

This body generally includes the President, the Vice President, and the 12 additional Members, whereby a quorum is obtained if at least eight Members are present in addition to the President.[103] If a Member is absent, a substitute Member steps in.‍ ‍

For certain cases defined by law,[104] however, a simplified procedure applies, for which a quorum consisting of five judges (a chair and four other Members) is sufficient,[105] known as “Small Assembly”. More than ninety percent of the cases at the Constitutional Court are decided in this small constellation.[106] Although the concept of the Small Assembly is highly relevant in practice, it is not mentioned in the Constitution. Some scholars hence question its constitutionality.[107] In 2002, however, the Court itself had to decide on the constitutionality of the provision providing the legal basis for the Small Assembly procedure. The Court held that, particularly against the background of the continuous expansion of the Court’s powers, its proper functioning can only be guaranteed if it is able to decide certain cases with a reduced number of voting Members and without extensive written reasoning. Hence, the Court itself considered the provision to be crucial for the Court’s functionality and found it to be constitutional.[108]‍ ‍

ii.  Deliberations and Decision-Making‍‍ ‍

The Austrian Constitutional Court is not constituted as a continuously sitting tribunal. Deliberations take place four times a year within the framework of so-called sessions (“Sessionen”), which usually last around three weeks[109] in the months of February/March, June, September/October and November/December.[110]‍ ‍

Preparations for the consultations take place between the sessions. The Court appoints a number of its Members the role of “Permanent Reporters”[111] for a period of three years,[112] and they are tasked with drafting the Court’s opinions, assisted by the aforementioned law clerks.[113] The number of Permanent Reporters is determined by the Court itself; currently, there are twelve Permanent Reporters.[114] Hence, almost every Member of the Court[115] simultaneously acts as a Permanent Reporter and is therefore present at the Court (whereas, in the early days, two Permanent Reporters were sufficient; all other judges were not involved in the preparatory work and would only convene at the Court for deliberations).[116] Without the collective effort of almost all judges preparing the cases between the sessions, the Court would not be able to handle its caseload.[117]‍ ‍

The President of the Court assigns the cases to the Permanent Reporters, seeking to assign related cases to the same Permanent Reporter, distribute the workload evenly, and take prior legal experience into account.[118] Drafts prepared by the Permanent Reporters that are intended for deliberation at a session must be circulated to all Members (even where they are proposed to be dealt with in the Small Assembly)[119] before Friday at noon in the penultimate week before each session.[120] Generally, findings of the Constitutional Court’s must be based on a public oral hearing, however, numerous, far-reaching exceptions to this general rule make public oral proceedings rare in practice.[121] On average, only about ten such hearings take place each year.[122]‍ ‍

Decisions of the Court—whether made in the plenary or in the Small Assembly—are reached by simple majority.[123] In other words, an opinion drafted during the preparations must obtain the support of more than half of the voting members during its deliberations. The President of the Court, as a general rule, does not have a vote.[124] However, if one of the opinions received exactly half of the votes, the President is required to cast a decision.[125] At times, heightened voting requirements apply: a unanimous decision is required to dismiss a case and refuse further consideration on the grounds of manifest lack of jurisdiction, failure to comply with a deadline, failure to remedy formal deficiencies, res judicata (i.e., matters that have already been adjudicated), or lack of standing.[126]‍ ‍

The voting results are not published.[127] Unlike the ECHR or U.S. Supreme Court, the outvoted members are not allowed to publish dissenting opinions on decisions.[128]‍ ‍

D.  Conclusion

‍ ‍‍Constitutional jurisdiction in Austria is exercised by a single institution, the Constitutional Court. With its wide range of powers concerning key areas of a liberal democratic state, the Austrian Constitutional Court plays a central role not only in safeguarding the precedence of the Constitution, but the system of Austria’s rule of law in general. Its authority to review acts of the executive and legislative branch, as a body of the judiciary, secures the Constitution’s precedence of all state action.‍ ‍

Both the role of the Court in the Austrian constitutional state and its organizational structure and working methods are distinctive. These include the Court's ability to rescind laws, the legal status of its members, who come from a wide variety of legal professions and perform their duties as constitutional judges (at least in idea) on a part-time basis, and the non-permanent establishment of its uniform panel of judges.‍‍ ‍

II.  Composition, Functioning, and Working Methods
of the United States Supreme Court‍‍ ‍

A.  Characteristics of the United States Constitutional Review‍ ‍

The Supreme Court of the United States of America is “the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States.”[129] Article III of the U.S. Constitution—the foundational document, ratified in 1788, which frames the structure of the U.S. federal government—bestowed the powers of the federal judiciary onto “one supreme Court,” along with “such inferior Courts” to be established by Congress.[130] Although the framers explicitly referenced the necessary existence of a “supreme Court” in the Constitution, they left the task of precisely defining the Court’s role and structure to Congress. When the nation’s First Congress convened in 1789, it fulfilled the mandate of Article III, section 1 with the enactment of the Judiciary Act of 1789.[131] The Act established thirteen district courts and three circuit courts across the country, along with a Supreme Court composed of six Justices—five Associate Justices and one Chief Justice.[132] The Court has evolved significantly in both form and function since its inception.‍ ‍

The Court’s power of judicial review, the authority to declare government actions unconstitutional, is not directly addressed in any provision of the U.S. Constitution.[133] Rather, the Supreme Court’s first authoritative legal assertion of this power came in the 1803 case of Marbury v. Madison, where Chief Justice John Marshall proclaimed that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” and “a law repugnant to the constitution is void[.]”[134] Here, the fundamental pretext of Chief Justice Marshall’s assertion of the Court’s power was that if the text of the Constitution is to have meaning, its Framers must have intended some manner in which its meaning could be authoritatively interpreted.[135]‍ ‍

Legal academics and historians are divided on whether Marbury truly “created” judicial review in the United States, or merely “institutionalized” a doctrine that had already been informally “approved by the vast majority of the American political leaders during the founding period of the Constitution and thereafter.”[136] Regardless, the Court’s assertion of such authority was ultimately reinforced by the lack of challenge or opposition by the legislative and executive branches of the early federal government.[137] As has been the case in many instances throughout American history, congressional acquiescence allowed a constitutional power vacuum to be filled by a more zealous branch of government.‍ ‍

The Constitution’s Supremacy Clause, deeming the “Constitution . . . the supreme Law of the Land,”[138] and its role in the structure of American federalism also bolstered the credence of judicial review. Where the Constitution and state law had the potential to intersect and conflict, it was essential to have some method for determining when state legislatures had exceeded their authority to legislate on certain issues or when state courts had improperly applied federal law. With “[l]itigation being the most practical method for uncovering conflicts between state law and the Constitution, federal courts became the natural repository for ultimate constitutional review of state action.”[139]‍ ‍

Constitutional review in the United States is uniquely decentralized: the Supreme Court does not have exclusive jurisdiction over all cases or controversies involving a constitutional question.[140] Rather, all Article III federal and traditional state courts of general jurisdiction are able to address issues of constitutionality, subject to an appellate court’s review.[141] Under the Supremacy Clause, both state and federal courts alike are bound preeminently to render decisions according to the principles of the U.S. Constitution and other sources of federal law.[142] While case law has established the Supreme Court as the final authority on interpreting federal law, other federal courts also possess constitutional authority to review state court decisions that may conflict with the Constitution or federal law.[143] When a case requires a state court to interpret federal law, its decision is appealable directly to the Supreme Court.[144] As such, despite the decentralized model, the Supreme Court remains “supreme” in all constitutional controversies as the final arbiter of federal law.‍‍ ‍

B.  Composition of the United States Supreme Court‍ ‍

i.  Organizational Framework‍‍ ‍

The Constitution addresses neither the size of the Supreme Court nor any defined roles for Justices. Pursuant to Article III, section 1, these terms are set by Congress. From 1789 through the conclusion of the American Civil War, numerous Acts of Congress altered the number of concurrent seats on the Court, ranging from five to ten total seats at a time.[145] Since 1869, that number has remained fixed at nine.[146] This includes one Chief Justice, who serves as the presiding officer of the Court, and eight Associate Justices.[147]‍ ‍

Each Justice is permitted to hire their own “personal staff, including two secretaries, a personal messenger, and up to four law clerks . . . ” per Court term.[148] Clerkships are reserved for attorneys with at least one year of experience clerking for a state or federal judge; in such a role, they assist with researching legal issues, determining which cases to allow to be heard, and drafting the Court’s opinions.[149] The Court is also assisted by nine Court Officers who undertake much of the administrative workload, allowing the Justices to remain primarily focused on substantive legal matters.[150] Additional “supporting departments” include the public information office, the data systems office, the office of legal counsel, and the office of the curator.[151] These offices act as the information liaison between the Court and the public, provide technical support, serve as legal counsel for the Court, and facilitate exhibits and educational programs for the public, respectively.[152] The Court even retains an auxiliary staff that includes telephone operators, woodworkers, first-aid staffers, a barber, and a seamstress.[153] These staffers, while uninvolved in the substantive work of the Court, ensure that the Court, its property, and its employees are properly taken care of and able to operate efficiently.‍‍ ‍

ii.  Requirements and Professional Background for Appointment‍‍ ‍

The Constitution sets no formal qualifications for the appointment of Justices to the Supreme Court. Justices may be appointed regardless of age, native-born citizenship, education, or professional background.[154] Despite the lack of required legal education, historically, all Justices have been trained in the law and demonstrated adequate, if not exceedingly impressive, legal experience.[155] Many of the eighteenth and nineteenth century Justices studied the law through apprenticeships, as the small number of formal American law schools made institutional legal education rare.[156] Ultimately, the method by which appointment of the Justices occurs serves as the only formal administrative roadblock preventing any woefully underqualified Justices from making their way onto the Court.‍‍ ‍

iii.  Appointment of Supreme Court Justices‍‍ ‍

Members of the Supreme Court of the United States are appointed for life; vacancies occur only after a Justice dies, retires, or resigns.[157] Upon any of these triggering events, it becomes the constitutional responsibility of the President to nominate a successor for the vacating Justice.[158] Importantly, however, the President is constitutionally mandated to make their selection “with the Advice and Consent of the Senate,”[159] meaning any appointee will be subject to Senate confirmation proceedings. Since the 1960s, the Senate Judiciary Committee has begun this process in three steps: first, they conduct a pre-hearing investigation; second, they conduct public hearings with the appointee; and third, they issue the Committee’s decision.[160] The full Senate may vote to confirm the appointee only if a majority of the Committee votes in favor of their approval; if the appointee fails to secure the support of a majority of the Committee members, the confirmation process halts and the President must nominate a new appointee.[161] Once approved by the Committee, final confirmation requires only a simple majority of the full Senate.[162]‍ ‍

While the appointment process serves as the only administrative check on the quality of Justices joining the bench, political pressures largely mitigate the risk of underqualified appointees prevailing. By nature of the Senate confirmation process, presidents understand the necessity of only nominating those with “unquestionably outstanding legal qualifications” if they want to secure the best odds for their nominee being confirmed.[163] Politics aside, Senators will always expect a high degree of merit as the bare minimum from any nominee to the nation’s highest tribunal. The vast majority of modern nominees have had distinguished legal careers as lower court judges, legal scholars, and private practitioners.[164] Sixty-five percent of Supreme Court nominees since 1945 were serving as federal appellate court judges at the time of their appointment.[165]‍ ‍

iv.  Legal Status of Supreme Court Justices‍‍ ‍

The life tenure enjoyed by Supreme Court Justices under Article III is intended to structurally insulate the judiciary from external political pressures. Justices do not campaign to obtain or retain their positions, their terms on the bench are not time-limited, and they may not be removed based on the will of any superior or the public at large. Rather, Justices may be removed from the bench only through impeachment by Congress.[166] Impeachment of a Justice, or any other Article III judge, requires a majority vote by the House of Representatives.[167] If a majority is reached in the House, then the Justice is given a trial, conducted by the Senate, with the Vice President of the United States presiding.[168] If two-thirds of the Senate vote to convict, the Justice will be removed from the bench.[169] This is extremely rare; a Supreme Court Justice has only been impeached once in the nation’s history—Justice Samuel Chase was impeached in 1804 for exhibiting unethical conduct in “politically sensitive cases,” though he was never convicted.[170]‍ ‍

Because Justices, barring impeachment, serve indefinitely and their successors are appointed by the President, their decision to retire and the timing of that decision is highly consequential. Justices who want a like-minded successor are incentivized to retire while a President matching their views holds office. This form of partisan scheming has been a catalyst of public pressures to reform the terms of justices’ tenures.[171]‍ ‍

The Supreme Court generally operates full-time, in its official capacity, over a nine-month term: from the first Monday in October to the end of June.[172] The Justices’ “summer recess” spanning July through September is something that no other federal judges receive.[173] During such breaks, the Justices do not hear oral arguments or meet to decide cases. However, their work is not halted entirely. In the summer months, Justices must still contend with the court’s emergency, or “shadow” docket, consisting of applications seeking immediate action from the Court when circumstances dictate that a speedy resolution is required.[174] The Court’s robust administrative staff network is crucial in allowing the Justices to keep up with their duties year-round and ensure the effective application of law.‍‍ ‍

C.  Decision Making and Working Methods‍ ‍

i.  Case Intake and the Certiorari Process‍‍ ‍

The Supreme Court has both original and appellate jurisdiction. Its original jurisdiction is limited to cases involving disputes between states or among ambassadors and other high-ranking ministers.[175] The vast majority of the Court’s caseload, however, comes from its appellate docket.[176] Once a final ruling has been reached in a case by the highest appellate court within the relevant jurisdiction (generally, a Federal Circuit Court of Appeals or a state court of last resort), a party to the action may petition the Supreme Court for review by asking the Court to grant a writ of certiorari.[177] Once a petitioner files their certiorari petition, any respondents have thirty days to file a brief arguing why the case is not fit for the Supreme Court’s review.[178] The Court may also allow third parties who are uninvolved in the particular case at issue, but whose interests are implicated by the case’s potential outcome, to file amicus curiae briefs to provide the Court additional information or arguments relevant to how a case should be analyzed.[179] The Court then reviews the petition and opposing or supporting briefs and takes a vote of the Justices to determine whether the case should be heard. Under the popularly titled “Rule of Four,” with the Court’s current composition of nine total Justices, the votes of only four Justices are required to accept a case.[180] On average, the Court receives over 7,000 petitions each year—and of those, generally less than 200 are accepted and heard.[181]‍ ‍

As previously mentioned, the Court must also occasionally address cases through its emergency, or “shadow” docket. This is where the Court rules on “procedural matters, such as scheduling, and considers requests for emergency” relief without full briefing or oral argument.[182] Since 2023, the docket has been used with increasing frequency, particularly for addressing matters concerning the constitutionality of actions taken by the Trump Administration.[183] Many have criticized the Court’s increased use of the emergency docket for making such significant decisions.[184] The lack of “full briefing, oral argument, and deliberation among the [J]ustices,” along with the lack of required explanation for its rulings, has resulted in the Court issuing decisions with “great consequences” for non-parties with very little transparency regarding its justifications for arriving at a particular decision.[185]‍ ‍

ii.  Oral Argument and Deliberations‍‍ ‍

Cases for which certiorari was granted proceed to oral argument after the parties’ briefs have been reviewed. Generally, only one attorney from each side of the litigation may participate, and each is given thirty minutes to present their case.[186] Though, this rarely, if ever, is one continuous thirty-minute speech; oral arguments are often dominated by questioning from the Justices looking for clarifications on a party’s argument.[187] ‍

Following oral arguments, the Justices hold a conference to discuss the case and address each other’s concerns in a private conference room adjacent to the Chief Justice’s chambers.[188] As a matter of tradition, each conference begins with the Justices convening and shaking hands.[189] As they delve into the substance of the cases before them, each Justice is granted the opportunity to offer an uninterrupted statement, providing their position on the case without discourse from the other Justices.[190] The Chief Justice delivers his statement first, and the Associate Justices then provide their statements in descending order of seniority.[191] While Justices may discuss cases with their law clerks and other administrative staff before a conference, only the Justices themselves are allowed to be present and to participate—absolute confidentiality is observed.[192] Generally, the Court’s consideration of a case ends here, though some Chief Justices have permitted additional open discussions following the conclusion of uninterrupted statements.[193] Justice Antonin Scalia famously complained about the lack of opportunity to persuade the other Justices to reconsider their positions.[194]‍ ‍

iii.  Voting and Opinion Assignment‍ ‍‍

At the conclusion of the nine Justices’ uninterrupted statements, they proceed to a vote.[195] Each Justice’s vote is cast in the same order as their statements were given, beginning with the Chief Justice and descending through the Associate Justices based on seniority.[196] The most senior Justice voting with the majority generally selects the Justice to be tasked with writing the majority opinion.[197] Any holdings expressed in majority opinions represent a binding decision of the Court[198]—a majority of Justices must sign onto the opinion, expressing their agreement with the opinion in its entirety, before it may be publicly delivered.[199] If there are any dissenting Justices, the most senior dissenting Justice selects the Justice to be tasked with writing the dissenting opinion.[200] Justices who agree with the outcome of the case but disagree with the majority’s justifications may write concurring opinions, with which other Justices may join.[201] Likewise, if a dissenting Justice disagrees with any justifications presented in another Justice’s dissent, they may elect to write separately to memorialize their objections.[202] Note, however, that only the holdings of the majority opinion are binding on the lower courts; any other expressions of the Court’s perspective on a particular case are to be treated as mere dicta.‍‍ ‍

D.  Conclusion‍ ‍‍

The Supreme Court of the United States stands as the central institutional guardian of the Constitution within a structurally decentralized system of judicial review. Though Article III provided only a general blueprint for the federal judiciary, the Court’s most significant authority, the power of judicial review, was cemented through early jurisprudence and the structural logic of federal supremacy.‍ ‍

The Court’s structure and internal organization reflect a deliberate balance between independence and accountability. Life tenure, combined with the political safeguards inherent in the appointment and confirmation process, is designed to insulate the Justices from transient political pressures while preserving public confidence. Though the absence of formal qualifications may not bestow confidence, longstanding professional norms and Senate scrutiny have produced a Court consistently headed by some of the nation’s most highly respected and experienced legal practitioners. Throughout its history, the Court has consistently functioned as a remarkably efficient arbiter of constitutionality, continually evolving in its response to the demands of the United States’ complex federalist system of government.‍‍ ‍

III.  Juxtaposition and Comparison: Parallels, Divergences, and Lessons the Courts Might Learn from One Another‍ ‍

Today, around eighty percent of constitutions around the world empower their courts with some form of judicial review.[203] While the United States was the first country to implement a system of judicial review under a decentralized approach,[204] in recent years, the later-established Austrian model—involving a centralized, separate constitutional court—has surpassed the American model in terms of its influence on the structure of newly emerging democracies worldwide.[205] Concluding our paper, we will outline the differences and similarities in organizational structure and modes of operation of the two Courts and examine what each may learn from each other, and consider why the Austrian model has become more attractive to developing nations.‍ ‍

At the outset, it seems noteworthy that the regulatory framework governing each Court in Austria is set out in considerable detail in the Constitution, whereas in the U.S., neither the size of the Court nor the status of its justices is expressively defined in the Constitution. This is most likely attributable to the fundamental differences of being a civil law versus common law country.‍ ‍

Similarities between the Courts may be observed in the overall working environment and the apparatus assisting the judges or justices, particularly regarding the pivotal role of the law clerks. In other aspects, however, the U.S. Supreme Court appears to benefit from considerably more abundant administrative resources—one can easily imagine that the Members of the Austrian Constitutional Court would equally appreciate amenities such as an in-house barber or tailor.‍ ‍

Further distinction arises in relation to the formal requirements for being a constitutional judge or justice. The U.S. Constitution—at least in theory—affords significantly broader discretion for the selection of its Justices, whereas the Austrian Constitution prescribes specific qualifications concerning legal education and professional experience. In practice, however, both courts are composed of some of the most distinguished jurists in their respective countries (even though, unlike in Austria, there have been members of the United States Supreme Court who did not formally attend law school). While Justices of the Austrian Constitutional Court—at least on paper—exercise their mandate on a part-time basis, their counterparts in the United States serve in a full-time capacity. With regard to professional backgrounds prior to appointment, there is currently a noticeable predominance of university professors in Austria, whereas in the United States, prior judicial service is far more common.‍ ‍

One of the fundamental differences is the judges’ tenure. In Austria, Members of the Constitutional Court must retire upon reaching the age of seventy. In the United States, by contrast, the Justices are appointed for life. Moreover, in Austria, removal from office may be affected only by the Court itself, without the involvement of another branch of state power, whereas in the United States, removal is possible solely through an impeachment action by Congress. A similarity may again be identified in the appointment process: in both the U.S. and Austria, both the executive and legislative branches participate. Furthermore, the process is, in both jurisdictions—perhaps inevitably in the context of a constitutional court—shaped by a political dimension.‍ ‍

Another significant difference concerns the Court’s operational calendar. The U.S. Supreme Court operates on a continuous basis, subject only to a summer recess, whereas the Austrian Constitutional Court sits for only four sessions a year, spanning just weeks at a time.‍ ‍

Finally, important divergences exist with regard to procedural practice and deliberation. In the U.S., oral argument appears to play a central role, while proceedings before the Austrian Constitutional Court are predominantly decided on the basis of written submissions. Most decisively, however, the decision-making process differs: in Austria, voting behavior remains strictly confidential and publishing dissenting opinions are not allowed, whereas in the United States, the votes and opinions of the Justices are made public, and dissenting opinions are formally published.

Ultimately, while the U.S. model of constitutional review has endured in the United States, it pails in comparison to the broad international applicability of the Austrian model. In the U.S., the country’s legal structure needed to be tailored to address issues unique to the United States’s system of federalism—a system not commonly found in most emerging modern democracies. It stands to reason that a democracy spanning approximately 3.5 million square miles, or 9 million square kilometers, may require a unique system of judicial governance that is not wholly exportable around the world. By contrast, the Austrian model is fairly simple and straight forward: the Constitutional Court’s structure, composition, and operations are set out in plain terms in the country’s constitution.

‍ ‍

‍ ‍

* Tobias Huber, Univ. Ass., LL.B. (WU), LL.M. (WU); Ph.D. Candidate at Vienna University of Economics and Business, Institute for Austrian and European Public Law. Parts of this article are based on a presentation held at the ICON•S 2025 Annual Conference Brasília in July 2025. He is grateful to Thomas Kröll, Sebastian Lendl-Lewisch, Georg Lienbacher and Ulrich Wagrandl for discussions in preparation for that presentation and for valuable comments on this manuscript. He would also like to thank Steven Dabney for agreeing to co-author this article, as well as Casey Parker-Bell and Matthew Chaney, on behalf of the entire team of the KLJO, for making its publication possible. Steven Dabney, J.D. 2026, University of Kentucky J. David Rosenberg College of Law; B.A. Accounting, minors in Political Science and Philosophy 2023, Transylvania University. He would like to thank Tobias Huber for inviting his co-authorship of this article.

[1] Stanley L. Paulson, Constitutional Review in the United States and Austria: Notes on the Beginnings, 16 Ratio Juris 223, 223–24 (2003).

[2] Manfred Stelzer, An Introduction to Austrian Constitutional Law 71 (3rd ed. 2014).

[3] Ewald Wiederin, From the Federalist Papers to Hans Kelsen’s “Dearest Child”: The Genesis of the Austrian Constitutional Court, 76 ZÖR 313, 314 (2021).

[4]See Paulson, supra note 1.

[5] Wiederin, supra note 3, at 325–27. While legal literature may sometimes create the impression that Hans Kelsen was the “inventor” of the Austrian Constitutional Court (see Paulson, supra note 1, at 225 as an example), it has been shown that, although Hans Kelsen undoubtedly managed to connect earlier concepts and traditions to the final form of the Austrian Constitutional Court, preexisting institutions and debates also exerted significant influence on the “Austrian model”, see Wiederin, supra note 3, at 325–27 and Michael Holoubek & Ulrich Wagrandl, A Model for the World: The Austrian Constitutional Court Turns 100, 17 ICL J. 251, 253–59 (2023). However, Hans Kelsen not only contributed to the phrasing of the Austrian Constitution regarding the Constitutional Court but also continued to defend the concept of centralized constitutional jurisdiction ideologically. The related publication of his literary work in America is the reason why the term “Kelsen Court” is still used throughout the world to describe the original model of a centralized constitutional control; see Stelzer, supra note 2, at 72.

[6] Wiederin, supra note 3,at 327 (noting that “liebstes Kind” is German for “dearest child”).

[7] In Part I, references to “the Court” refer to the Austrian Constitutional Court.

[8] See Christoph Grabenwarter, The Austrian Constitutional Court, in 3 The Max Planck Handbooks in European Public Law – Constitutional Adjudication: Institutions, 20, 26 (Armin von Bogandy, Peter M. Huber, & Christoph Grabenwarter eds., 3rd ed. 2020).

[9] Anna Gamper & Francesco Palermo, The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review, 3:2 J. Compar. L. 64, 65 (2008).

[10]Id.

[11] Grabenwarter, supra note 8, at 26.

[12] Holoubek & Wagrandl, supra note 5,at 252.

[13] Paulson, supra note 1, at 223–24.

[14]Id. at 224.

[15] Wiederin, supra note 3, at 314–17 (referring to No. 22 of the Federalist Papers, written by Hamilton: “Laws are a dead letter without courts to expound and define their true meaning and operation.” U.S. courts have even invalidated a handful of state laws even before the U.S. Constitution was adopted).

[16] For detailedinformation on the beginnings and characteristics on U.S. judicial review,see infra Section II.A.

[17]See Wiederin, supra note 3, at 316–17, 320–21 (regarding the influences of the American system on the early debates about constitutional jurisdiction in Austria and Germany).

[18] Holoubek & Wagrandl, supra note 5, at255.

[19]See Theo Öhlinger, The Genesis of the Austrian Model of Constitutional Review of Legislation, 16 Ratio Juris 206, 207–08.

[20] Gamper & Palermo, supra note 9, at 64.

[21] Paulson, supra note 1, at 223–24.

[22] Holoubek & Wagrandl, supra note 5, at 252.

[23] For background regarding the early, fundamental discussions about the Austrian Constitution and why the division of power was the main reason for which the Court was vested with the power to invalidate laws, see Ulrich Wagrandl, A Constitution Without Qualities? Three Narratives About Austrian Constitutional Law, in European Constitutionalism the Other Way Round 266, 277–80 (Jan Komárek, Birgit Aasa, Marina Bán, & Michał Krajewski eds., 2026).

[24] Walter Berka, Verfassungsrecht: Grundzüge des österreichischen Verfassungs-rechts für das juristische studium [Constitutional Law: Fundamentals of Austrian Constitutional Law for Law Students] 339 (Verlag Österreich, 8th ed. 2021).

[25]See Christoph Grabenwarter, Constitutional Law, in Introduction to the Law of Austria 1, 12 (Christoph Grabenwarter & Martin Schauer eds., 2015).

[26] Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 11, 2001, G12/00 ua, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFR_09988989_00G00012_01/JFR_09988989_
00G00012_01.html [https://perma.cc/2BKS-5TAU] (Austria).

[27]See Christoph Bezemek, A Kelsenian Model of Constitutional Adjudication, 67 ZÖR 115, 118 (2012).

[28] Ronald Faber, The Austrian Constitutional Court – An Overview, 2 Vienna Online J. on Int’l Const. L. 49, 50 (2008).

[29] Bezemek, supra note 27, at 119–20.

[30] Individuals may also request the review of a norm by means of a so-called “individual application”. This individual request for constitutional review was introduced in 1975, following the German example. As the Court has established in its case law, a person may contest the legality of a norm if it affects them and violated their rights if it is unlawful. The norm must thus actually interfere with the person’s rights and not only de facto affect their interests, see Bezemek, supra note 27, at 126–27.

[31] Faber, supra note 28, at 50.

[32] Grabenwarter, supra note 8, at 35.

[33] For background, particularly regarding historical context, see generally Öhlinger, supra note 19, at 209–13.

[34] “Members” is the official title for individuals serving on the Austrian Constitutional Court.

[35] The Austrian Federal Council is known natively as the “Bundesrat.”

[36] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria); see also Bezemek, supra note 27, at 118.

[37] Holoubek & Wagrandl, supra note 5, at 261.

[38] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 144, ¶ 1 (Austria).

[39]Id. at art. 138, ¶ 1–2.

[40] A full overview of the Court’s areas of jurisdiction can be found at Bezemek, supra note 27, at 120–21.

[41] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 141, ¶ 1 (Austria).

[42]See id. at art. 142, ¶ 1.

[43]Id. at art. 137.

[44] Bezemek, supra note 27, at 119.

[45] Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], Activity Report 2024 7 (2024) (Austria) [hereinafter VfGH, Activity Report]; Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], Official Case Data, https://www.vfgh.gv.at/AktenanfallVfGH.csv [https://
perma.cc/L6P7-XAAC] (last visited Feb. 9, 2026) (Austria) [hereinafter VfGH, Case Data].

[46] VfGH, Case Data, supra note 45.

[47] VfGH, Activity Report, supra note 45, at 6.

[48] Gamper & Palermo, supra note 9, at 67.

[49]Id.

[50] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 1 (Austria); for a detailed analysis and background discussion regarding the number of Members of the Court, see generally Holoubek & Wagrandl, supra note 5, at 262–66.

[51] Herbert Hausmaninger, The Austrian Legal System 140 (4th ed. 2011) (the Constitutional Court of Italy has fifteen members, the German has sixteen (who are, however working in a “twin court” of two permanent senates of eight members each), the Portuguese court has thirteen, the Belgian and the Spanish courts have twelve members each. The French Conseil constitutionnel has nine members, such as the U.S. Supreme Court).

[52] VfGH, Activity Report, supra note 45, at 8, 17.

[53] Holoubek & Wagrandl, supra note 5, at 270.

[54]Id.

[55] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 3 (Austria).

[56] “The president, vice-president, six other members and three substitute members [of the Court] are appointed by the Federal President upon the proposal of the federal government; these members and substitute members must be selected from among judges, administrative civil servants and professors holding a chair in law at a university” Id. art. 134 ¶ 2.

[57] Grabenwarter, supra note 8, at 38.

[58] In Italy, Romania, and Slovakia, for example, a monopoly of jurists has been established as well. In France, however, no personal or professional qualifications are required to be a member of the Conseil constitutionnel (which should be noted is merely a court-like body and not a constitutional court in the classical sense). Bernd Wieser, Vergleichendes Verfassungsrecht [Comparative Constitutional Law] 353–54 (Verlag Österreich, 3d ed. 2024).

[59]See Members of the Constitutional Court, VfGH, https://www.vfgh.gv.at/verfassungsgerichtshof/
verfassungsrichter/members.en.html [https://perma.cc/U2FF-C2RL] (last visited Apr. 5, 2026) (listing Members of the Court, some of which are attorneys).

[60]Id.

[61] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria).

[62]Id.

[63]Id.

[64]Id.

[65] Gamper & Palermo, supra note 9, at68.

[66]Id.

[67] Grabenwarter, supra note 8, at 38.

[68] Gamper & Palermo, supra note 9, at 68.

[69] Grabenwarter, supra note 8, at 38.

[70]Id. at 38–39.

[71] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 4 (Austria).

[72]Id. at ¶ 5.

[73]See generally Theo Öhlinger, Der Fall Brandstetter und der Österreichische Verfassungsgerichtshof, Verfassungsblog (June 11, 2021), https://verfassungsblog.de/der-fall-brandstetter-und-der-osterreichische-verfassungsgerichtshof [https://perma.cc/8TSV-Q55M].

[74] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 5 (Austria).

[75] Bezemek, supra note 27, at 119.

[76] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria).

[77] Bezemek, supra note 27, at 119.

[78] Grabenwarter, supra note 8, at 39.

[79] Bezemek, supra note 27, at 119.

[80]Id.

[81] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 6 (Austria).

[82] Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], January 2019: Precursor of Today’s Constitutional Court Established 100 Years Ago, https://www.vfgh.gv.at/medien/
100_Jahre_deutschoesterreichischer_Verfassungsgericht.en.php [https://perma.cc/727Q-MBPG] (last visited July 11, 2026) (Austria).

[83]Id.; Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 3 (Austria), version Bundesgesetzblatt [BGBl] No. 1/1920.

[84] On other aspects of the discussion on “depoliticizing” the Court, see Öhlinger, supra note 19, at 214–15.

[85] The initial intention was to align the retirement age of the Members of the Constitutional Court with that applicable to ordinary judges, who retire at sixty-five. In the course of the parliamentary debates, however, the age limit was ultimately set at seventy rather than sixty-five, in order to align it with the retirement age then applicable to university professors, who were likewise required to retire at seventy. See Stefan Leo Frank, Artikel 147 B-VG [Article 147 of the Federal Constitutional Act], in Rill-Schäffer-Kommentar Bundesverfassungsrecht [Rill-Schäffer Commentary on Federal Constitutional Law], para. 41 (Benjamin Kneihs & Georg Lienbacher eds., 17th ed. 2016).

[86]See id.

[87] Wieser, supra note 58, at 352.

[88]Mitglieder (Tabelle: 1919 bis heute) [Members (Table: 1919 to Present)], Verfassungsgerichts-hof, https://www.vfgh.gv.at/verfassungsgerichtshof/verfassungsrichter/mitglieder_tabelle.de.html [https://perma.cc/4SMR-EHER] (last visited March 19, 2026).

[89] This statutory retirement age applies, as a general rule, across all professions; the retirement age for university professors was also lowered in 1988. See Frank, supra note 85.

[90]See id.

[91] Convention for the Protection of Human Rights and Fundamental Freedoms art. 23, ¶ 6, Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol No. 11, May 11, 1994, S.E.T. No. 155.

[92]See Convention for the Protection of Human Rights and Fundamental Freedoms art. 23, ¶ 1, Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol No. 15, June 24, 2013, C.E.T.S. No. 213.

[93] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 87, ¶ 1, art. 147, ¶ 6 (Austria).

[94] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundes-gesetzblatt [BGBl] No. 85/1953, as amended, BGBl No. 92/2014, § 12 ¶ 1, https://www.
ris.bka.gv.at/Dokumente/Bundesnormen/NOR40166286/NOR40166286.pdf [https://perma.cc/
CR6T-772S] (Austria).

[95]Id. at§ 12 ¶ 2.

[96] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 7 (Austria).

[97] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] BUNDESGESETZBLATT [BGBl] No. 85/1953, as amended, BGBl I No. 50/2025, § 10 ¶ 1, https://ris.bka.gv.at/Dokumente/Bundesnormen/NOR40270776/NOR40270776.pdf [https:
//perma.cc/M6W7-FEB7] (Austria).

[98] Grabenwarter, supra note 8, at39.

[99] Hausmaninger, supra note 51, at 133.

[100] Holoubek & Wagrandl, supra note 5, at 267.

[101]Id.

[102]Id.

[103] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 1, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).

[104] This is mostly the case in deliberations on matters of law where the legal issue has already been sufficiently clarified by the Constitutional Court’s prior case law.

[105] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 2, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).

[106] Holoubek & Wagrandl, supra note 5, at 270; Faber, supra note 28, at 51.

[107]See Theo Öhlinger & Harald Eberhard, Verfassungsrecht [Constitutional Law] 514.

[108] Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 2, 2021, B762/98, https://www.
ris.bka.gv.at/Dokumente/Vfgh/JFT_09978998_98B00762_00/JFT_09978998_98B00762_00.pdf [https://perma.cc/3LMZ-JQXU] (Austria).

[109] Holoubek & Wagrandl, supra note 5, at 267.

[110]See Hausmaninger, supra note 51, at 141.

[111] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 50/2025, § 2, https://
www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40270772/NOR40270772.pdf [https://
perma.cc/Y7YH-6J5E] (Austria).

[112] The Permanent Reporters can be, and usually are, reappointed. The Court’s Bench and its Judicial Activity, Verfassungsgerichtshof, https://www.vfgh.gv.at/verfassungsgerichtshof/
organisation/the_courts_bench.en.html [https://perma.cc/T37G-AF4M] (last visited on Oct. 7, 2025).

[113] Each Permanent Reporter is entitled to three law clerks; Members of the Court who do not have the status of a Permanent Reporter are not entitled to law clerks, see id.

[114]Id.

[115] Only the President of the Court and the newest Member to the Court, who has not yet been elected as Permanent Reporter, do not currently hold the position of a Permanent Reporter. Seeid.

[116] Holoubek & Wagrandl, supra note 5, at 269.

[117]Id.

[118] Hausmaninger, supra note 51, at 141.

[119] This is because any Member of the Court may request a matter to be dealt with in the regular plenary; Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 2, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).

[120] Holoubek & Wagrandl, supra note 5, at 269.

[121] Grabenwarter, supra note 8, at 42.

[122]Id.

[123] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 92/2014, § 31, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40166291/NOR40166291.pdf [https://perma.cc/5VFG-LBVL] (Austria).

[124]Id.

[125]Id.

[126] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 24/2017, § 19 ¶ 3, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40189027/NOR40189027.pdf [https://perma.cc/6LW2-23RQ] (Austria).

[127] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 33/2013, § 30 ¶ 1, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40147816/NOR40147816.pdf [https://perma.cc/XA5X-NTWB] (Austria); Faber, supra note 28, at 49.

[128] Faber, supra note 28, at 49.

[129]About the Court, Sup. Ct. U.S., https://www.supremecourt.gov/about/about.aspx [https://perma.cc/SMY2-PNKE] (last visited Apr. 6, 2026).

[130] U.S. Const. art. III, § 1.

[131]The History of the Supreme Court of the United States, U.S. Senate Comm. on the Judiciary, https://www.judiciary.senate.gov/nominations/supreme-court/history [https://
perma.cc/JCN6-4UWJ] (last visited Apr. 5, 2026).

[132]Id.

[133] Richard L. Wilson, Judicial Review and the Supreme Court, EBSCO (2023), https://www.ebsco.com/research-starters/law/judicial-review-and-supreme-court [https://perma.cc/3Q2Y-3Z2Y].

[134] Marbury v. Madison, 5 U.S. 137, 177–80 (1803).

[135] Julie Silverbrook, Marbury v. Madison, Bill Rts. Inst., https://billofrightsinstitute.org/
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[136] P. Allan Dionisopoulos & Paul Peterson, Rediscovering the American Origins of Judicial Review: A Rebuttal to the Views Stated by Currie and Other Schools, 18 J. Marshall L. Rev. 49, 74 (1984).

[137] Wilson, supra note 133.

[138] U.S. Const. art. VI.

[139] Alvin B. Rubin, Judicial Review in the United States, 40 La. L. Rev. 67, 71 (1979).

[140] Samantha Lalisan, Classifying Systems of Constitutional Review: A Context-Specific Analysis, 5 Ind. J. Const. Design, Apr. 13, 2020 at 1, 4.

[141]Id.

[142] Rubin, supra note 139, at 70.

[143]Comparing Federal & State Courts, Admin. Off. U.S. Cts., https://www.uscourts.gov/
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[144]Id.

[145]About the Supreme Court, Admin. Off. U.S. Cts., https://www.uscourts.gov/about-federal-
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[146]Id.

[147]Co-Equal Leader: The Role of the Chief Justice of the United States, Sup. Ct. Hist. Soc’y, https://supremecourthistory.org/supreme-court-civics-resources/role-of-chief-justice-of-the-united-states [https://perma.cc/UKY4-JVW2] (last visited Nov. 29, 2025).

[148] Elizabeth Shaw, Staff of the Court, EBSCO (2022), https://www.ebsco.com/research-starters/law/staff-court [https://perma.cc/SM9Y-Y9HY].

[149]Id.

[150]About the Court,supra note 129.

[151] Shaw, supra note 148.

[152]Id.

[153]Id.

[154]FAQs - General Information, Sup. Ct. U.S., https://www.supremecourt.gov/about/
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[155]Id.

[156]Id.

[157] Barry J. McMillion, Cong. Rsch. Serv., R44235, Supreme Court Appointment Process: President’s Selection of a Nominee 9 (2026).

[158] U.S. Const. art. II, § 2, cl. 2.

[159]Id.

[160]Co-Equal Leader: The Role of the Chief Justice of the United States, supra note 147.

[161]Id.

[162]The U.S. Supreme Court Nomination Process: An Explainer, RockTheVote, https://www.
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[163] McMillion, supra note 157, at 9.

[164]Id. at 10.

[165]Id.

[166] Solcyré Burga, How Impeaching a Supreme Court Justice Works, TIME (July 12, 2024, at 10:07 ET), https://time.com/6997811/impeaching-supreme-court-justice-judges-history [https:
//perma.cc/DM62-2CRE].

[167]Id.

[168] Berman Milton, Impeachment of Judges and the Supreme Court’s Role, EBSCO (2023), https://www.ebsco.com/research-starters/law/impeachment-judges-and-supreme-courts-role [https://perma.cc/FNF9-WPRE] (“Unlike presidential impeachments where the chief justice presides, the vice president or president pro tem of the Senate presides over judicial impeachments”).

[169]Id.

[170] Burga, supra note 166.

[171] Maggie Jo Buchanan, The Need for Supreme Court Term Limits, Ctr. for Am. Progress (Aug. 3, 2020), https://www.americanprogress.org/article/need-supreme-court-term-limits [https://perma.cc/JPT8-SFCQ].

[172] James Duff, Still at Work: How the Justices Spend Their Summer Months, Sup. Ct. Hist. Soc’y (July 21, 2025), https://supremecourthistory.org/scotus-scoops/still-at-work-how-the-justices-spend-their-summer-months/#:~:text=Each%20year%20the%20Supreme%20Court's,take%203%2D
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[173] Rory Little, The Justices Have the Easiest Job in the Judiciary, SCOTUSBlog (Aug. 21, 2025), https://www.scotusblog.com/2025/08/the-justices-have-the-easiest-job-in-the-judiciary/#:~:text=
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[174]Id.

[175]Supreme Court Procedures, Admin. Off. U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-court-procedures [https://perma.cc/9LA8-XZUK] (last visited Nov. 29, 2025).

[176]Id.

[177]Id.

[178] Amy Howe, 2020 Election Litigation Tracker, SCOTUSBlog (Apr. 6, 2021), https://www.
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[179] Leah Ward Sears, Why and When to File an Amicus Brief, Smith, Gambrell & Russell, https://www.sgrlaw.com/ttl-articles/why-and-when-to-file-an-amicus-brief [https://perma.cc/VZZ4-GNHE] (last visited Feb. 13, 2026).

[180] Winston Bowman, The Supreme Court's Rule of Four, Fed. Jud. Ctr., https://
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[181]About the Supreme Court, supra note 145.

[182] Alicia Bannon, Stephen Spaulding & Harry Black, The Supreme Court “Shadow Docket” Explained, Brennan Ctr. for Just. (Feb. 13, 2026), https://www.brennancenter.org/our-work/
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[183] Erwin Chemerinsky, Why the Shadow Docket Should Concern Us All, SCOTUSBlog (Aug. 4, 2025), https://www.scotusblog.com/2025/08/why-the-shadow-docket-should-concern-us-all [https:
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[184]Id.

[185]Id.

[186]Supreme Court Procedures, supra note 175.

[187]Id.

[188]Id.

[189]Id.

[190]Id.

[191]Id.

[192]Id.

[193] Dave Roos, Steps the Supreme Court Takes to Reach a Decision, History.com (May 28, 2025), https://www.history.com/articles/supreme-court-decision-cases [https://perma.cc/2KKK-PKXY].

[194]Id.

[195]Id.

[196]Supreme Court Procedures, supra note 175.

[197]Id.

[198]SeeUnderstanding Stare Decisis, A.B.A. (Dec. 16, 2022), https://www.americanbar.org/
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[199]Supreme Court Procedures, supra note 175.

[200]Id.

[201]Id.

[202]Id.

[203] Holoubek & Wagrandl, supra note 5, at 252.

[204] Paulson, supra note 1, at 223.

[205] Holoubek & Wagrandl, supra note 5, at 252.

‍ ‍

Sticks and Stones: A Needed Legislative Reform to Kentucky's Approach to Cyberbulling

This Online Original is available for download (PDF) here.

Article | 102 KY. L. J. ONLINE 1 | Sept. 22, 2013

Amanda East

Introduction

It can hardly be argued that…students…shed their constitutional rights to freedom of speech…at the schoolhouse gate.FN1

Reading, writing, and arithmetic are the “three r’s” used to describe the foundation of the typical American education. Another unspoken fixture of the American classroom is bullying. This longstanding practice has entered the new millennium, and technology has given bullies new ways to torment victims. Kameron Jacobsen was a high school freshman in New York who enjoyed spending time with his family and was constantly using Facebook, a social networking site, to interact with his classmates.FN2 This social forum became a nightmare when his peers used it to taunt and ridicule Kameron until he committed suicide.FN3 His family had no available recourse because, like most states, New York’s legislative and judicial branches are ill-prepared to address the emerging issue of cyberbullying.FN4 Perhaps worst of all, Kameron is not the first student to be “a victim of cyberbullying,” nor is he the last. In the Bluegrass State, Rachael Neblett, a seventeen-year old high school student took her life in 2006 under similar circumstances.FN5 The Internet has benefited teenagers in a number of ways, but, in conjunction with these benefits, courts have seen increased litigation regarding cyberbullying.FN6 The absence of Supreme Court precedent on this issue has resulted in an array of state and federal court decisions. State legislatures have amended or adopted new statutes to address this problem. I contend that in order to sufficiently address cyberbullying, Kentucky needs to recognize schools have an important interest in preventing cyberbullying and need broader authority to effectively address this problem. Kentucky needs to enact legislation, similar to Vermont or Massachusetts, permitting schools to regulate off-campus Internet student speech. This broadening of what it means to be “within” the “schoolhouse gates” is justified because of the nature of the interest and the legislature’s ability to tailor schools’ authority in order not to infringe on protected speech. In order to prove this thesis, Part I will begin by defining cyberbullying. Part II will then examine lower court decisions on the cyberbullying issue, beginning with relevant Supreme Court precedent, and the developing body of case law, identifying three standard cyberbullying approaches taken by lower courts. Part III will address state legislatures’ responses to cyberbullying. Part IV will analyze efforts by the House of the Kentucky General Assembly to amend existing statutes and their shortcomings, and finally Part V will conclude with an appeal for additional cyberbullying legislation in Kentucky.

I.      Cyberbullying and its Effects

Cyberbullying is distinguishable from traditional bullying in four ways. First, the aggressor can choose to remain anonymous by creating a false, online identity, establishing a sense of power and control.FN7 Second, the speed of dissemination ensures the victim will more readily experience the bullying.FN8 Third, the Internet has unlimited reach ensuring “cruel and sadistic behavior [will be] amplified and publicized, not just on the campus [of a school], but throughout the world.”FN9 Last, the victim’s torment is constant and inescapable because he or she experiences it every time they access the Internet.FN10

II.      Student Speech and The First Amendment: An Overview

A. Supreme Court Student Speech Jurisprudence

In the wake of increased litigation, lower courts have used four seminal Supreme Court cases to balance a student’s interest in freedom of speech and the school’s interest in regulation. The first of these cases, Tinker v. Des Moines Independent Community School District, established protection of in-school student speech, while the three subsequent cases carved out content-based exceptions. In effect, the Supreme Court has instituted four standards that lower courts may apply in determining the constitutionality of student speech.

1.      Tinker v. Des Moines Independent Community School District

In Tinker, the Court stated that students do not “shed their constitutional rights…at the schoolhouse gate,’” and struck down students’ suspensions for wearing black armbands in school because the school failed to show a “substantial disruption.”FN11Under this standard, a school may regulate student speech to provide a safe and productive learning environment only when the school can show the speech did, or could reasonably be foreseen to, materially and substantially disrupt the work and discipline of the school.FN12

2.      Bethlehem School District v. Fraser

Bethlehem School District v. Fraser established a separate standard restriction on student speech.FN13 The Fraser standard permits schools to prohibit vulgar, lewd, or obscene student speech regardless of whether or not it results in disruption because the Court recognized that schools have an interest in protecting minors from speech that is “inconsistent with the ‘fundamental values’ of public school education.”FN14

3.      Hazelwood School District v. Kuhlmeier

In Hazelwood, the Supreme Court upheld censoring student speech because it was part of a school-sponsored activity “bear[ing] the imprimatur of the school,” meaning the school was effectively being asked to promote student speech inconsistent with its basic educational mission.FN15 Hazelwood’s restriction permits public schools to regulate the content of a school-sponsored activity so long as it is reasonably related to legitimate pedagogical concerns.FN16

4.      Morse v. Frederick

This most recent case establishes a restriction acknowledging that public schools may limit student speech which could “reasonably [be] viewed as promoting illegal drug use” because schools have an important, and perhaps compelling, interest in discouraging such activity.FN17 Morse suggests that a school may limit student speech because of the school’s important interest in prohibiting the content itself.FN18

B.  Applying these Standards: How Courts Approach Internet Student Speech Off-Campus

The absence of direct Supreme Court precedent has resulted in “a ‘state of tumult about the precise scope of First Amendment rights possessed by students.’” and lower courts have adopted three common approaches to address the matter.FN19

1.      The Geography Approach

This approach distinguishes between “on-campus” and “off-campus” speech. Courts will initially determine if the speech occurred on school grounds or during a school-sponsored activity to ensure there is a sufficient nexus for the court to rely on existing school-speech jurisprudence to render a decision.FN20 This approach has produced mixed results. In Mahaffey v. Aldrich, a district court found that a student website entitled “Satan’s webpage” encouraging violence and containing a death list was outside the school’s reach because the speech did not create an actual disruption under the Tinker standard.FN21 Conversely, in J.S. v. Bethlehem Area School District, the Pennsylvania Supreme Court found, under the Tinker standard, a school could punish off-campus speech because “where speech that is aimed at a specific school and/or its personnel is brought onto the school campus or accessed at school by its originator, the speech will be considered on-campus speech.”FN22

2.      The Foreseeability Test

Under the foreseeability test, courts justify extending Tinker to “off-campus” speech because of an excerpt in Tinker which states, [C]onduct by the student, in class or out of it, which for any reason- whether it stems from time, place, or type of behavior- materially disrupts the classwork or involves substantial disorder or invasion of the rights of other is, of course, not immunized by the constitutional guarantee of freedom of speech.FN23   Both the Second and Third Circuits have held that a school may regulate Internet student speech if it “poses a reasonably foreseeable risk of disruption.”FN24 The Second Circuit held in Wisniewski v. Board of Education Weedsport Central School District that a student-created image of a pistol firing at a teacher’s head was unprotected speech and the school could regulate it.FN25 In J.S. v. Blue Mountain School District, an eighth grader created a false profile of a school principal suggesting he was a pedophile and sex addict.FN26 The Third Circuit combined the Tinker and Fraser standards to hold that, under a different set of facts and circumstances, the school would be permitted to punish a student without constitutional violation. FN27

3.      The “Standard First” Approach

Under the “standard first” approach, courts apply existing Supreme Court standards to a particular fact pattern and determine if any of these standards permit the school to prohibit the speech.FN28 Using this approach, a district court in Killion v. Franklin Reg. School District held that a student e-mail with offensive remarks about the school’s athletic director was protected speech under Tinker because it did not run afoul of the “substantial disruption” test.FN29

III.      State Legislatures’ Response

The confusion in the judicial branch has generated a need for state legislatures to enact statutes more clearly delineating schools’ scope of authority. Currently, forty-nine states have bullying statutes.FN30 Sixteen of these specifically address the issue of cyberbullying, with seven including “off-campus” cyberbullying as a problem within schools’ purview.FN31 Cyberbullying statues provide courts with a definitive means of addressing Internet student speech. A uniform approach offers a sense of predictability and stability such that all affected parties are on notice of potential liability for violations. A statute permits state and district school boards to craft policies explicitly articulating schools’ authority over the Internet. Furthermore, cyberbullying statutes reduce the possibility of unreasonable infringement of non-student speech because they define the parameters for the balancing of the two interests occurs.

IV.      Kentucky’s Proposed Response: Amendments to KRS 158.148 and KRS 525.070

To date, Kentucky has not adopted a separate cyberbullying statute or included cyberbullying within its statutory definition of “bullying” or “harassment.” The General Assembly has considered the issue since 2007, proposing numerous amendments to existing statutes which have subsequently stalled in committee.FN32 This indicates that the House sees the need to formulate a response to cyberbullying.

A.    2008 Ky. House Bill No. 91

In 2008, Kentucky’s legislature attempted to pass four versions of Ky. House Bill No. 91; the first contained no reference to cyberbullying.FN33 KRS 158.148 stated school codes must prohibit harassment, intimidation, and bullying; these terms were defined narrowly by KRS 158.441 such that communications referred only to “written” communications occurring on-campus, during a school sponsored activity, or on school transportation.FN34 In the context of a cyberbullying case, a court could view this limitation as possibly including or excluding electronic media because the statute is unclear whether “written” communication means only physical communication. The geographic constraint presents the same shortcoming seen in other states because it would prohibit a court from granting schools the authority to regulate off-campus Internet student speech, like cyberbullying. The third and fourth versions contained a notable change. The amended version of KRS 525.080 specifically stated a student would be guilty of harassing communications if he or she sent an electronic communication “which a reasonable person . . . should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment, and which serves not purpose of legitimate communication.”FN35 While it does not explicitly use the term cyberbullying, this marked the first time the Kentucky legislature acknowledged and addressed the issue.

B.     2011 Ky. House Bill No. 370

House Bill 370 proposed shifting some of the language discussed above. The amended version of 158.148 would specifically reference cyberbullying and require schools to include it in their discipline codes.FN36 The House defined cyberbullying as any electronic communication intended to: (1) physically harm a student or their property, (2) substantially interfere with educational opportunities, (3) create an intimidating or threatening education environment, or (4) cause a substantial disruption to the school.FN37 This expansive view of cyberbullying suggests the House was growing increasingly aware of the many ways cyberbullying manifests. Nevertheless, the continued geographical limitation on the school’s authority to address cyberbullying creates the risk that schools will be unable to address a significant amount of Internet student speech and will continue to see the types of disruptions the legislature seeks to avoid.

C.    2012 Ky. House Bill No. 490

House Bill 490 is the most recent set of amendments. “Cyberbullying” is now encapsulated in KRS 158.441’s definition of “bullying”; “electronic acts” is a type of bullying and is defined as “an act committed through the use of a cellular telephone, computer, pager, personal communication device, or other electronic communication device” to inflict mental or physical harm on another student.FN38

V.      Recommendation

The steps taken by the House of Kentucky’s General Assembly are commendable, but these proposals do not provide schools with the necessary tools to reach a significant amount of Internet student speech. The geographic constraint on schools’ authority means administrators will be unable to address an issue until it makes its way onto campus.

A.    Shortcoming of Proposed Kentucky Amendments and the Need to Recognize Cyberbullying as an Important, Perhaps Compelling State Interest

The proposed legislation discussed above, if enacted, means that Kentucky schools will be unable to address a potential disruption until it becomes an actual disruption. This would require administrators to act reactively rather than proactively. Such an approach undermines the notion that schools may act conducive to their primary objectives of safety and education.This limitation may generate more issues than it solves. For example, if schools are permitted to regulate only “on campus” Internet student speech, can schools only monitor speech on school computers or other electronic media? Is it relevant that a student posted a harmful remark during school hours using their cell phone? Would it matter if the school district’s discipline code prohibited the use of privately owned cell phones during regular school hours? The Supreme Court acknowledged schools have an important, if not compelling, interest in deterring drug use amongst students because it is essentially antithetical to schools’ education mission.FN39Similarly, cyberbullying is antithetical to schools’ education mission. Its constant and pervasive nature has a direct impact on schools manifesting in increased academic problems, anxiety, depression, severe isolation, a tendency to carry weapons, and suicide.FN40 Based on the problems caused by cyberbullying, it is imperative that the Kentucky General Assembly succeed in not only passing amended statutes recognizing cyberbullying as an issue in public schools, but also replacing the confining geographic language with a more flexible standard allowing schools to respond preemptively without being overly inclusive.

B.     Vermont and Massachusetts: Models for New Kentucky Legislation

Unlike Kentucky, Vermont and Massachusetts have enacted legislation addressing cyberbullying that extends schools’ authority beyond campus premises.FN41 Vermont’s statute states that bullying includes cyberbullying that “does not occur during the school day on school property, on a school bus, or at a school-sponsored activity and can be shown to pose a clear and substantial interference with another student’s right to access educational programs.” Massachusetts’s legislation is similar.FN42 The Massachusetts legislation permits schools to regulate activity occurring off-campus “if the bullying creates a hostile environment at school for the victim, infringes on the rights of the victim at school or materially and substantially disrupts the education process or the orderly operation of a school.”FN43 The language of these statutes is similar to the foreseeability approach recognized by some courts because both permit school regulation when there is still the possibility of preventing a substantial disruption, thus preserving the school environment.FN44 Vermont and Massachusetts explicitly define the student actions which are considered cyberbullying, much like the definitions seen in Ky. House Bill No. 370.FN45 This specificity provides schools and courts with a clearer understanding of what speech the statute governs. Additionally, both states require local school districts to develop procedures to address cyberbullying including the response and investigation of possible cyberbullying, to define disciplinary actions for offenders, and to develop programs to raise awareness about cyberbullying.FN46 These requirements safeguard against overreach by public schools and demonstrate that it is possible for a state to enact cyberbullying legislation extending beyond the school’s physical parameters while still not trampling on freedom of speech.

C.    Proposed Kentucky Legislation for Online Student Speech

The Kentucky legislature’s primary focus should be recognizing cyberbullying as a distinct, unique issue in public schools. A good start would be combining the approaches taken by Massachusetts and Vermont to establish a separate definition for cyberbullying under KRS 158.441 because that combination would signal the General Assembly’s awareness of cyberbullying and would be consistent with the unique characteristics of cyberbullying. The current definition of cyberbullying in KRS 158.441 is susceptible to overreach by public schools because the only qualification on what constitutes actionable bullying is that it cause mental or physical harm.FN47 A school, for example, could determine a student was in violation if the victimized student claims to have been embarrassed or reduced to tears. A standard such easily manipulated would be improper because schools would have virtually unchecked policing powers. A better definition of cyberbullying in KRS 158.441 would read as follows: “Cyberbullying” is bullying through the use of technology or any electronic communication including, but not limited to, the transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted by, an electronic medium including those which the creator assumes another person’s identity or knowingly impersonates another as the author of posted content or messages. Additionally, it includes the distribution by electronic means of a communication to more than one person or the posting of material on an electronic medium that may be accessed by one or more persons. A student will be determined to have committed an act of cyberbullying against another student if the following conditions are met. The act: (1) is repeated over time; (2) is intended to ridicule, humiliate, or intimidate the victim; and (3) occurs during the school day on school property, on a school bus, or at a school-sponsored activity, or before or after the school day on a school bus or at a school-sponsored activity. (4) does not occur during one of the on-campus activities discussed above, but can be shown to pose a clear and substantial interference with another student’s right to access educational programs.FN48 This definition has several benefits. First, it narrows the scope of Internet speech subject to regulation, reducing potential infringement of constitutionally protected speech. Second, it recognizes the unique nature of student Internet speech. Third, it outlines a clear analytical framework for Kentucky courts to use in future cyberbullying lawsuits, resulting in increased predictability. Fourth, it puts all potential parties on notice of the types of Internet speech consider within the school’s purview. Last, this construction of cyberbullying is consistent with the standard articulated in Tinker. While Kentucky courts would be recognizing a school’s authority “beyond the schoolhouse gate,” this authority would stem from the likelihood the speech will negatively impact students within the school environment. Thus, widening the scope of school-regulated speech would permit the Kentucky legislature and courts to continue to respect the sanctity of the schoolhouse gate.

Conclusion

The Internet has radically changed the framework for student speech analysis causing lower courts to respond in varied, and sometimes surprising, ways. Previously, off-campus student speech was distinctly beyond the schoolhouse gate and free from constraint. This spatial distinction has declined with the prevalence and pervasiveness of the Internet, which has blurred the borders between many areas of regulation. While certainly not all off-campus speech is subject to schools’ authority, those that would create a substantial disruption should be subject to school regulation.FN49 In order to navigate the challenges presented in addressing off-campus Internet student speech, Kentucky’s General Assembly needs to enact an amended version of statutes 158.148 and 158.441. The geographical limitation contained within 158.148 needs to be replaced with more expansive language, similar to Massachusetts’ and Vermont’s statutes.FN50 Additionally, 158.441 needs to provide a definition of cyberbullying. Such changes would recognize that a geographical distinction is inadequate for schools to provide a safe and productive learning environment. Without these changes, courts will be left with little to base their decisions on except a “very tricky calculus,”FN51which will not produce the outcomes necessary to prevent future victims of cyberbullying.

FN1. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

FN2. New York 14-Year-Old Kameron Jacobsen Bullied to Death, CBS New York, http://newyork.cbsloc al.com/2011/09/15/exclusive-new-york-14-year-old-bullied-to-death/ (last visited June 3, 2013).

FN3. Id.; Parents Speak Out on Bullying After Son’s Death, CBS New York, http://www.cbsnews.com/2100-500172_162-20106690.html (last visited June 3, 2013).

FN4. New York 14-Year Old Kameron Jacobsen Bullied to Death, supra note 2.

FN5. Rachael was a Bullitt County student when she committed suicide after receiving threatening anonymous e-mails from classmates. Janelle McDonald, Family of Teen who Took Her Own Life Pushing Lawmakers for Anti-Bullying Ordinance, Wave3 News, http://www.wave3.com/story/6029598/family-of-teen-who-took-her-own-life-pushing-lawmakers-for-anti-bullying-ordinance (last visited June 3, 2013) (stating Rachael received an e-mail saying, “ ‘[I am not] going to put [you] in the hospital, [I’m] going to put [you] in the morgue.’”).

FN6. Katherine Ng, Digital Dilemmas: Responding to Cyberbullying in Nova Scotia, 22 EDUC. & L.J. 63, 65-66 (2012); see also Gwenn Schrugin O’Keeffe, Kathleen Clarke-Pearson, and the Council on Communications and Media, Clinical Report: The Impact of Social Media on Children, Adolescents, and Families, 127 Pediatrics 800, 800-01 (2011). (stating the internet has assisted in self-identification by adolescents).

FN7. Ng, supra note 6 at 68; see also Sameer Hinduja and Justin W. Patchin, Cyberbullying Research Summary: Cyberbullying and Strain, 1, 1 http://www.cyberbullying.us/cyberbullying_ and_strain_research_fact_sheet.pdf (last visited June 3, 2013).

FN8. Ng, supra note 6 at 69; see also Hinduja and Patchin, supra note 7 at 1.

FN9. Ng, supra note 6 at 70; Allison Belnap, Comment, Tinker at a Breaking Point: Why the Specter of Cyberbullying Cannot Excuse Impermissible Public School Regulation of Off-Campus Student Speech, BYU L. Rev. 501, 501 (2011) (quoting Jeff Lieberman, Rutgers Student’s Suicide Prompts privacy, Cyber-Bullying Debates (PBS NewsHour broadcast Oct. 1, 2010), transcript available at http://www.pbs.org/newshour/bb/social_issues/july-dec10/rutgers1_10-01.html); see also Hinduja and Patchin, supra note 7 at 1.

FN10. Ng, supra note 6 at 68.

FN11. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 514 (1969).

FN12. Id. at 514. (“As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.”).

FN13. See Bethlehem Sch. Dist. v. Fraser, 478 U.S. 675, 685-86 (1986). The Court later stated in a footnote the Fraser standard is separate and distinct from Tinker. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, n. 4. (“The decision in Fraser rested on the ‘vulgar,’ ‘lewd,’ and ‘plainly offensive’ character if a speech delivered at an official school assembly rather than on any propensity of the speech to ‘materially disrup[t] class work or involv[e] substantial disorder or invasion of the rights of others.”) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969)).

FN14. Fraser, 478 U.S. at 683, 685-86.

FN15. Hazelwood, 484 U.S. at 281.

FN16. Id. at 273.

FN17. Morse v. Frederick, 484 U.S. 393, 403 (2007).

FN18. See Caitlin May, Comment, “Internet-Savvy Students” and Bewildered Educators: Student Internet Speech is Creating New Legal Issues for the Educational Community, 58 Cath. U. L. Rev. 1105, 1111 (2009) (analyzing the Court’s rationale in Hazelwood); Harriet A. Hoder, Note, Supervising Cyberspace: A Simple Threshold for Public School Jurisdiction over Student’s Online Activity, 50 B.C. L. Rev. 1563, 1574-75 (2009).

FN19. Stephanie Klupinski, Note, Getting Past the Schoolhouse Gate: Rethinking Student Speech in the Digital Age, 71 Ohio St. L.J. 611, 625 (2010) (quoting Robert D. Richards & Clay Calvert, Columbine Fallout: The Long-Term Effects on Free Expression Take Hold in Public Schools, 83 B.U. L. Rev. 1089, 1139 (2003)); May, supra note 18 at 1128-31.

FN20. May, supra note 18 at 1128; Hoder, supra note 18 at 1583-85; see also Sandy S. Li, The Need for a New, Uniform Standard: The Continued Threat of Internet-Related Student Speech, 26 Loy. L.A. Ent. L. Rev. 65, 78; Belnap, supra note 9, at 510, Klupinski, supra note 19, at 627.

FN21. Mahaffey ex rel. Mahaffey v. Aldrich, 236 F. Supp. 2d 779, 782-84 (E.D. Mich. 2002) (“In the case at bar, there is no evidence that the website interfered with the work of the school or that any other student's rights were impinged.”).

FN22. J.S. v. Bethlehem Area Sch. Dist., 807 A. 2d 847, 865 (Pa. 2002).

FN23. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (emphasis added).

FN24. Wisniewski v. Bd. of Educ. Weedsport Cent. Sch. Dist., 494 F.3d. 34, 38 (2d Cir. 2007); J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011).

FN25. Wisniewski, 494 F.3d at 36-40.

FN26. Blue Mountain, 650 F.3d at 920.

FN27. Id. at 928, 932-33 (holding J.S.’s suspension was a violation of the First Amendment because it did not cause a substantial disruption in the school under the Tinker standard).

FN28. Klupinski, supra note 19 at 638-39.

FN29. Killion v. Franklin Reg. Sch. Dist., 136 F. Supp. 2d 446, 455 (W.D. Penn. 2001) (“Although the intended audience was undoubtedly connected to Franklin Regional High School, the absence of threats or actual disruption lead us to conclude that Paul's suspension was improper.”).

FN30. See Ala. Code §16-28-3.1(b)(6) (2013); Alaska Stat. Ann. §14.33.200 (2013); Ariz. Rev. Stat. Ann. §15-341(37) (2013); Ark. Code Ann. §6-18-514(b)(2) (2013); Cal. Educ. Code §32261(d) (2013); Colo. Rev. Stat. §22-32-109.1(1)(b) (2013); Conn. Gen. Stat. §10-222d(a)(1) (2013); Del. Code Ann. tit. 14 §4112D(a) (2013); Fla. Stat. §1006.147(a) (2013); Ga. Code §20-2-751.4 (2013); Haw. Code R. § 8-19-2 (2013); Idaho Code Ann. §18-917A(2) (2013); 105 Ill. Comp. Stat. 5/27-23.7(b) (2013); Ind. Code §20-33-8-0.2 (2013); Iowa Code §280.28(2)(b) (2013); Kan. Stat. Ann. §72-8256(a)(1) (2013); Ky. Rev. Stat. Ann. §158.183(1)-(2) (2013); La. Rev. Stat. Ann. §17:416(d) (2013); Me. Rev. Stat. tit. 20-A(2)(B) §6554 (2013); Md. Code Ann. Education §7-424.3(a) (2013); Mass. Gen. Laws ch. 71, § 37O(a) (2013); Mich. Comp. Laws §380.1310b(8)b (2013); Minn. Stat. §121A.0695 (2013); Miss. Code Ann. §37-11-67(1) (2013); Mo. Rev. Stat. § 160.775(2) (2013); Neb. Rev. Stat. § 79-2, 137(2) (2013); Nev. Rev. Stat. §388.135 (2013); N.H. Rev. Stat. Ann. §193-F:3(I) (2013); N.J. Stat. Ann. §18A:37-14 (2013); N.M. Stat. Ann. §6.12.7 (2013); N.Y. Educ. Law §11(7) (McKinney 2013); N.C. Gen. Stat. §115C-407.15(a) (2013); N.D. Cent. Code §15.1-19-17(1) (2013); Ohio Rev. Code Ann. §3313.666(A)(2) (2013); 2013 Okla. Sess. Laws 311; Or. Rev. Stat. §339.351(2) (2013); 24 Pa. Cons. Stat. §13-1301.1-A(e) (2013); R.I. Gen. Laws §16-21-33(a) (2013); S.C. Code Ann. § 59-73-120(1) (2013); S.D. Codified Laws §13-32-15 (2013); Tenn. Code Ann. §49-6-1015(3) (2013); Tex. Educ. Code Ann. §37.0832(a) (2013); Utah Code Ann. §53A-11a-201 (2013); Vt. Stat. Ann. tit. 16, § 11(26), (32) (2013); Va. Code Ann. §22.1-279.6 (2013); Wash. Rev. Code Ann. §28A.300.285(2) (2013); W. Va. Code Ann. §18-2C-2(a) (2013); Wis. Stat. §118.46(1) (2013); Wyo. Stat. Ann. §21-4-312(a) (2013).

FN31. Statutes specifically referencing cyberbullying include: Arkansas, California, Connecticut, Hawaii, Kansas, Louisiana, Massachusetts, Missouri, Nevada, New Hampshire, New York, North Carolina, Oregon, Tennessee, Utah, and Washington. The following states have permitted schools to regulate and punish off campus behavior: Arkansas, Connecticut, Massachusetts, New Hampshire, New York, Tennessee, and Vermont. See Ark. Code Ann. §5-71-217(c) (West  (2013); Cal. Educ. Code §32261 (West 2013); Conn. Gen. Stat. Ann. §10-222d(a)(6), (b)(15) (West 2013); Haw. Code R. § 8-19-2 (2013); Kan. Stat. Ann. §72-8256(a)(2)-(3), (c) (West 2013); La. Rev. Stat. Ann. §40.7 (2013); Mass. Gen. Laws Ann. ch. 71, § 37O(b) (West 2013); Mo. Ann Rev. Stat. § 160.775 (West 2013); Nev. Rev. Stat. Ann. §388.135(7) (West 2013); N.H. Rev. Stat. Ann. §193-F:3(V) (2013); N.Y. Educ. Law §11(7) (McKinney 2013); N.C. Gen. Stat. Ann. §115C-407.15(a) (West 2013); Or. Rev. Stat. Ann. §339.351 (West 2013); Tenn. Code Ann. §49-6-1015 (West 2013); Utah Code Ann. §53A-11a-201(1)-(2) (West 2013); Wash. Rev. Code Ann. §28A.300.285 (West 2013).

FN32. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26, 2007); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Jan. 8, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008); H.B. 370, 2011 H.R., Reg. Sess. (Ky. 2011); H.B. 336, 2012 H.R., Reg. Sess. (Ky. 2012); H.B. 490, 2012 H.R., Reg. Sess. (Ky. 2012).

FN33. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26, 2007); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Jan. 8, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19,2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008).

FN34. H.B. 91, 2007 H.R., Reg. Sess. (Ky. Nov. 26,2007) (“‘Harassment, intimidation, or bullying’ means a repeated verbal, nonverbal, or written communication transmitted; repeated physical acts committed; or any other repeat behavior committed by a student against another student on school premises, on school-sponsored transportation, or at a school-sponsored event…”).

FN35. H.B. 91, 2008 H.R., Reg. Sess. (Ky. Mar. 19, 2008); H.B. 91, 2008 H.R., Reg. Sess. (Ky. Apr. 15, 2008).

FN36. H.B. 370, 2011 H.R., Reg. Sess. (Ky. 2011) (“Amend KRS 158.148 to require the discipline code to prohibit harassment, intimidation, bullying, or cyberbullying against students…”) (emphasis added).

FN. 37.Id.

FN. 38. H.B. 490, 2012 H.R., Reg. Sess. (Ky. 2012).

FN 39. Morse v. Frederick, 551 U.S. 393, 407 (2007) (stating that prior Supreme Court cases have recognized the dangers of illegal drug use and schools’ interest in protecting students from the dangers of drug abuse).

FN. 40. See Ng, supra note 6 at 70; see also Natasha Rose Manuel, Cyber-bullying: Its Recent Emergence and Needed Legislation to Protect Adolescent Victims, 13 Loy. J. Pub. Int. L. 219, 225-28 (2011), Hoder, supra note 18 at 1566.

FN. 41. Mass. Gen. Laws. ch. 71, § 37O(b) (2013); Vt. Stat. Ann. tit. 16, § 11(a)(32) (2013).

FN. 42. Tit. 16, § 11(a)(32)(C)(ii) (emphasis added); ch. 71, § 37O(b).

FN. 43. Ch. 71, § 37O(b).

FN. 44. Compare ch. 71, § 37O(b) and tit. 16, § 11(a)(32)(C))(ii) with Wisniewski v. Bd. of Educ. Weedsport Cent. Sch. Dist., 494 F.3d. 34, 38-39 (2d Cir. 2007) and J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915, 932-33 (3d Cir. 2009).

FN. 45. Compare H.B. 336,  H.R., Reg. Sess. (Ky. 2012) and H.B. 370, H.R., Reg. Sess. (Ky. 2012) with ch. 71, § 370 and tit. 16, § 11.

FN. 46. Ch. 71, § 37O(c)-(h); tit. 16, § 11.

FN. 47. KRS 158. 441 states “‘Harassment, intimidation, or bullying means: Any intentional written, verbal, electronic, physical act that a student has exhibited toward another student more than once that causes mental or physical harm to the other student.” H.B. 490, H.R., Reg. Sess. (Ky. 2012) (emphasis added).

FN. 48. This proposed statutory construction is based on the legislation in Kentucky, Massachusetts, and Vermont. See H.B. 370, H.R., Reg. Sess. (Ky. 2011); ch. 71 § 37O(a)-(b); tit. 16, § 11(a)(32).

FN. 49. May, supra note 18 at 1141, Li, supra note 20 at 87-91, Klupinski, supra note 20 at 643-50.

FN. 50. Compare H.B. 336, H.R., Reg. Sess. (Ky. 2012) and H.B. 490, H.R., Reg. Sess. (Ky. 2012) with ch. 71, § 37O(b) and tit. 16, § 11(a)(32)(C)(ii).

FN. 51 May, supra note 18 at 1141. (quoting Victoria Kim, Suit Blends Internet, Free Speech, School, L.A. Times, Aug. 3, 2008, at B1).