Throughout the Obama Administration, state attorneys general (AGs) have collaborated on several high-profile political issues. To get a fuller picture of this contemporary AG activism, this article analyzes AG participation in lawsuits and amicus curiae briefs before the U.S. Supreme Court across three presidential administrations. The results suggest that AGs’agendas have increasingly diverged throughout the Obama Administration, reflecting greater vertical conflict between AGs and the federal government as well as horizontal conflict among AGs themselves. Several factors have contributed to this development, including the broader polarization of American politics, intensified activism among Republican AGs, and increased collaborations between AGs and ideological interest groups. Much as with partisan contestation in other venues, these AG conflicts show few signs of abating. Since President Obama took office in 2009, state attorneys general (AGs) have been among the administration’s most persistent foes. Most famously, several AGs initiated legal challenges to the Patient Protection and Affordable Care Act (ACA) only minutes after the president signed it into law, an effort that led to the Supreme Court limiting the ACA’s Medicaid expansion (National Federation of Independent Business v. Sebelius [2012]). The ACA litigation was the most prominent state legal challenge to the Obama Administration, but it has been far from the only one. By the end of Obama’s first term in office, Republican AGs had filed over seventy lawsuits challenging the administration’s policies. Texas AG Greg Abbott, who only half-jokingly described his average day as ‘‘I go to the office. I sue the federal government. And then I go home,’’ has himself led twenty-four lawsuits against the Obama Administration at a cost of over $2.5 million and thousands of hours of staff time (Monro 2012; Weissert 2012; Fernandez 2013). Meanwhile, the federal Department of Justice has tangled with its state counterparts

https://epublications.marquette.edu/cgi/viewcontent.cgi?article=1013&context=polisci_fac

State Litigation during the Obama Administration: Diverging Agendas in an Era of Polarized Politics

Thesis (Ph.D.), School of Politics, Philosophy & Public Affairs, Washington State University

The Political Foundations of Legal Theory: Political Realignment and the Legal Marketplace of Ideas

The ascendancy of conservatism in the last 20 years is an unprecedented episode in American intellectual and political history. In \"Watch on the Right\", J.David Hoeveler Jr, gives us enlightening, often immensely entertaining portraits of the key thinkers behind this revolution\". As Hoeveler writes, \"conservative thinkers hang their hats on many different racks\", and this book dramatizes for us the breadth of the conservative coalition as exemplified by the eight writers surveyed: William F.Buckley, Jr, George Will, Robert Nisbet, Irving Kristol, Hilton Kramer, Jeanne Tyrrell Jr, and Michael Novack. These eight \"gurus\" of the right represent a very wide spectrum of conservative thought, but Hoeveler also considers the present-day conservative renaissance against the literary background that has given the movement its identity since Edmund Burke. Amid the multiple voices unifying themes do emerge. American conservatives share a hostility toward the liberal \"new class\" - the professional media and academic elites and the entrenched government bureaucracies that still believe in the perfectibility of society by enforced social engineering. Moreover, conservatives of all persuasions are united in struggling to sustain traditional values against the onslaught of revolutionary capitalism and technology, and all are profoundly hostile to imperialistic communism on the Soviet model.

Watch on a Certain Right@@@Watch on the Right: Conservative Intellectuals in the Reagan Era.

Abstract This article examines the Roberts Court and its relationship to the Obama administration following the 2014 midterm election. We begin by analyzing how the Court has been structured by electoral politics during the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. We then consider the impact of the 2014 midterm election. Republican control of the Senate will constrain the president’s ability to shape the federal courts going forward. It will most likely leave the composition of the current Supreme Court intact, leave Justice Kennedy as the pivotal swing vote, while elevating the Court as a campaign issue in the 2016 presidential election.

Still Crazy after All These Years: The Polarized Politics of the Roberts Court Continue

IntroductionThe Roberts Court is an interesting era to study because the Court decided a number of important constitutional issues in the past few years and those decisions continue to influence our lives. One example is Chief Justice Robert's pivotal vote in the National Federation of Independent Business (NFIB) v. Sebelius ruling. As similar to Chief Justice John Marshall's strategic ruling in Marbury v. Madison (1803), Roberts shrewdly used his decision in NFIB v. Sebelius to "defuse a potential political storm" that preserved the prestige of the Court while expanding the legal philosophy of national supremacy (White 2012, 371). In 2012, Roberts surprised conservatives when he joined with Justice Kennedy and the liberal block of justices to rule that the federal government, not the states, controls the enforcement of the immigration laws, a decision that blocked most of Arizona's immigration law (Savage 2013, 1). The Chief Justice had worried publicly about the acute ideological divisions on the Court and the impact these have on its institutional legitimacy (Clayton and Christensen 2008). Jeffrey Rosen described the chief justice as a "fierce defender of the Court and its institutional legitimacy" (Farias 2016). Moreover, "the chief has made it clear how much he cares about preserving the court's legitimacy in these polarized times, and this term will be a real test of that vision" (Rosen 2007). If the Chief Justice adopts a moderate approach to deciding cases, is it to convince the public that the Supreme Court is above ideology in order to preserve institutional legitimacy?This article analyzes the voting behavior of both Chief Justice Roberts and Justice Kennedy due to their "pivotal positions on the Court, controlling its decisions in most major constitutional cases" (Clayton and Christensen 2008; Clayton and McMillan 2012). Following Roberts key vote in NFIB v. Sebelius, some legal analysts claimed that Roberts may be establishing his authority over the Court and displacing Kennedy as the "pivotal justice" (Tribe 2012; Winkler 2012). Each year becomes "tougher to label Roberts. As chief justice, he must balance his judicial philosophy against the court's and his own legacy" (Wolf 2015). With the untimely death of Justice Scalia, Roberts will have to decide what role he wants to play, whether he should moderate his views to remain in the majority, or be confined to "a conservative minority" on the Court (Stern 2016).When siding with the majority, the role of the Chief Justice permits him to assign the majority author. This gives Roberts significant control over the direction of the Court. During his career, Roberts has had more 5-4 splits than any other chief justice in Court history (Lapidos 2012).For the 2012-2013 term, Roberts voted 62% with the majority in thirteen out of twenty-one 5-4 decisions (HarvardLaw Review 2013). Moreover, during the 2013-2014 Court term, the Chief Justice joined the majority 73% of the time in eight of the eleven 5-4 decisions (Harvard Law Review 2014). However for the 2014-2015 Court term, Roberts joined the majority only 30% in ten 5-4 decisions (HarvardLaw Review 2015).Nevertheless, many Supreme Court observers call the contemporary Court the "Kennedy Court," because Justice Kennedy is often described as the median justice (Cole 2015). The pivotal vote on the current Supreme Court usually belongs to Kennedy, who in closely divided cases is in the majority leaning conservative. Conversely, Kennedy has voted liberal more than conservative in 5-4 cases during the current term (Parlapiano, Liptak, and Bowers 2015). During the 2014-2015 Court term, Justice Kennedy voted 70% of the time with the majority in the ten 5-4 cases. Moreover, Justice Kennedy was in the majority in 5-4 cases more than any other justice at 87% during the 2012-2013 Court term. There were 23 cases decided 5-4 during that term. Kennedy was in the majority in 20 of them. In the 5-4 decisions, Kennedy sided with the conservative bloc 43 percent of the time and the liberal wing 26 percent of the time (Red State: The Supreme Court in Review, 7/1/2013). …

Balancing the Ideological Scales: Chief Justice John G. Roberts, Jr. and Moderation on the U.S. Supreme Court

Abstract This essay examines the Roberts Court and its relationship to the Obama administration. It begins by analyzing the ways in which the Court has been structured by electoral politics over the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. It concludes by considering the impact of President Obama’s 2012 reelection, contending that there is little indication that Obama aspires to restructure the courts fundamentally or to push major new constitutional initiatives. Although Obama will undoubtedly have an opportunity to fill at least one seat on the Court in the coming years, he is unlikely to alter its ideological balance, leaving Justice Kennedy as the swing justice. Thus, while liberals can expect isolated judicial victories, Obama’s reelection does not portend an imminent shift in Court decision-making. Only time will tell, however, whether it will have longer-term consequences for American constitutional development.

The Roberts Court in an Era of Polarized Politics

Our paper examines the Supreme Court from the perspective of a growing body of research that explains judicial behavior over time by focusing on its relationship to electoral politics and the broader political regime. We are particularly interested in the conflict between the Court and the Obama presidency and the cross-cutting divisions within the Court, and whether these can be understood as reflections of the broader partisan landscape of the New Right regime. We use empirical data and historical arguments to make sense of the relationship between the Court and the New Right political regime at the macro-level. The first part of the paper briefly discusses the regimes approach and summarizes the partisan contours of the New Right regime. In contrast to previous regimes, especially the New Deal regime which it replaced, the New Right regime is far more divided and ideologically polarized. Part two examines how the divided and polarized nature of the New Right regime is reflected in an increasingly divided and polarized Court. Part three then turns to consider whether cleavages within the New Right Republican Party may be reflected in divisions within the conservative bloc of justices on the Court.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2141429_code1869255.pdf?abstractid=2107479&mirid=1

Lucas K. McMillan

Papers

The Roberts Court in an Era of Polarized Politics

Context is Everything: The Roberts Court in a Polarized Political Regime