Showing papers on "Roberts Court published in 2006"

Does it Really Matter? Conservative Courts in a Conservative Era

Abstract: This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendent in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the elected branches of government and make policies that conservative majorities privately prefer but would rather not publicly champion. Nevertheless, progressives have far more to fear at present from the radicals in suits who control the elected branches of government than the radicals in robes who increasing control the judiciary. Conservative Republican judicial appointees are likely to have far more impact on public policy should Democrats regain partial control of other federal institutions. More generally, this paper finds that judicial review in the United States and abroad at the turn of the twenty-first century is contributing to a drift toward libertarianism and should be assessed as such.

Does It Really Matter? Conservative Courts in a Conservative Era

Abstract: This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendent in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the elected branches of government and make policies that conservative majorities privately prefer but would rather not publicly champion. Nevertheless, progressives have far more to fear at present from the radicals in suits who control the elected branches of government than the radicals in robes who increasing control the judiciary. Conservative Republican judicial appointees are likely to have far more impact on public policy should Democrats regain partial control of other federal institutions. More generally, this paper finds that judicial review in the United States and abroad at the turn of the twenty-first century is contributing to a drift toward libertarianism and should be assessed as such.

The Liberal Legacy of Bush v. Gore

Abstract: This article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights

Abstract: The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court's efforts during the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state's eminent domain authority, now appears ripe for revision and tightening after a stirring four-justice dissent in Kelo v. City of New London and an enormous public protest decrying the majority decision. Notwithstanding this reversal, the 2005 decisions offer a coherent approach to Takings Clause enforcement - albeit one that is likely to frustrate commentators, theorists, and property rights advocates. More clearly than ever before, the Court in its 2005 decisions abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause. Instead, its decisions reveal a marked preference for preserving and furthering its vision of an institutional system of governance - a jurisprudence that is focused on the question of who should decide rather than on the substantive issue of what should be decided, and that is committed to the passive virtue of deference. In short, the Rehnquist Court explicitly chose to adopt a legal process approach to takings. Because it privileges structure and process over explicit considerations of substantive legal and normative issues, this approach is unsatisfactory to property and constitutional theorists; because it defers to government decisions, it is maddening to property rights advocates; and because it is technocratic and abstract, it is unsatisfactory to the public. Given the prominence of the legal process approach to constitutional review of state regulatory action in the post-New Deal era, however, judicial passivity remains attractive, if unromantic, to judicial actors. Ultimately, recognizing the Court's shift away from defining constitutional property rights via the Takings Clause offers important descriptive and prescriptive insights into the future of takings law in the Roberts Court, especially if a majority of justices decide to tighten review of eminent domain actions or otherwise heighten judicial review under the Takings Clause.

Against Sovereignty: A Cautionary Note on the Normative Power of the Actual

Abstract: Drawing on classical and contemporary jurisprudence and political philosophy, this Essay argues that the Roberts Court should seize the next apt moment to abandon the doctrines of "sovereignty" and "sovereign dignity" that the Rehnquist Court developed over the decade that began with the 1996 decision in the Seminole case. Although pursued in service of the laudable goal of "our federalism," these doctrines work a corruption of our legal, political, and moral self-understanding. As they do so, they distract the Court and the citizenry from the disciplined commitment to the rule of law and legal justice by which a body politic and its state earn their true dignity (but not sovereignty). The Court's baroque and unconvincing metaphysics of sovereignty and sovereign dignity should be retired in favor of a political and legal vision informed by a constitutional commitment to natural law and natural rights, which stand in every season as a bulwark against the overreaching claims of putative sovereigns. A state that by supreme judicial self-profession is axiologically incompetent to pass on questions of the meaning or value of human life is demonstrably not sovereign or possessed of sovereign dignity.

Taking Accommodation Seriously: Religious Freedom and the O Centro Case

Abstract: The big stories from the Supreme Court's 2005-06 Term were about military commissions and enemy combatants, political redistricting and campaign contributions, and the nomination and confirmation - the first in more than a decade - of two new Justices. Largely overlooked in the crush of Court-related coverage was the Term's lone church-state decision, Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, involving the ritualized, but illegal, use by a small religious community from Brazil of a hallucinogenic tea called hoasca. Strictly speaking, O Centro was not a Religion Clauses case at all. It involved the interpretation and application of a particular statute, the federal Religious Freedom Restoration Act (RFRA). And, the Justices agreed with the courts below that the Act requires the government to demonstrate, in a particularized, more-than-conclusory way, that its refusal to exempt from the scope of the drug laws the otherwise-illegal religious use of hoasca is justified by a compelling state interest. It would be a mistake, though, move past the decision too quickly, and for at least two reasons. First, it is no small thing that the new Roberts Court - unanimously - has made it clear that the tighter constraints imposed by Congress on the national government really do bind. The Smith case teaches clearly that the political process is the main arena, and politically accountable actors are the primary players, when it comes to accommodating the special needs of religious believers. O Centro is entirely consistent with this teaching. However, it also underscores the point that when that process, and those actors, produce such an accommodation, courts and officials are to take it seriously. Second, it appears that the Justices have, with one voice, rejected the notion that such accommodations amount to an unconstitutional privileging, endorsement, or establishment of religion. Again, the Constitution for the most part permits - for better or worse - governments to regulate in ways that, in effect, burden religious exercise. At the same time, and no less certainly, it allows - and even invites - governments to lift or ease the burdens on religion that even neutral official actions often impose. O Centro affirms that, notwithstanding our constitutional commitment to religious freedom through limited government and the separation of the institutions of religion and government, it is and remains in the best of our traditions to single out lived religious faith as deserving accommodation.

Justice Kennedy and the Environment: Property, States' Rights, and a Persistent Search for Nexus

Abstract: Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court's crucial voice in environmental and natural resources law cases. Kennedy's central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S. He supplied the deciding vote in each, upholding local use of the condemnation power for economic development under certain circumstances in the first, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters in the second. In both cases Kennedy's sole concurrence was outcome determinative. Justice Kennedy has in fact been the barometer of the Supreme Court's environmental and natural resources law compass since his nomination to the Court in 1988. Although Kennedy wrote surprisingly few environmental and natural resources law opinions during his tenure on the Rehnquist Court, over his first eighteen years on the Court, he was in the majority an astonishing 97 percent of the time in environmental and natural resources law cases - as compared to his generic record of being in the majority slightly over 60 percent of the time. And Kennedy now appears quite prepared to assume a considerably more prominent role on the Roberts Court in the environmental and natural resources law field. This article examines Kennedy's environmental and natural resources law record over his first eighteen years on the Supreme Court and also on of the Ninth Circuit in the thirteen years before that. The article evaluates all of the environmental law and natural resources law cases in which he wrote an opinion over those three decades, and it catalogues his voting record in all of the cases in which he participated on the Supreme Court in an appendix. One striking measure of Justice Kennedy's influence is that, after eighteen years on the Court, he has written just one environmental dissent - and that on states' rights grounds, which is one of his chief priorities. The article maintains that Kennedy is considerably more interested in allowing trial judges to resolve cases on the basis of context than he is in establishing broadly applicable doctrine. Kennedy is therefore a doctrinal minimalist. By consistently demanding a demonstrated nexus between doctrine and facts, he has shown that he will not tolerate elevating abstract philosophy over concrete justice. For example, he is interested in granting standing to property owners alleging regulatory takings, but he is quite skeptical about the substance of their claims. Another example of his nuanced approach concerns his devotion to states' rights - which is unassailable - yet he has been quite willing to find federal preemption when it serves deregulation purposes. On the other hand, as his opinion in Rapanos reflects, Kennedy is far from an anti-regulatory zealot. But he does seem to prefer only one level of governmental regulation. At what might be close to the mid-point in his Court career - and with his power perhaps at its zenith - Justice Kennedy is clearly not someone any litigant can ignore. By examining every judicial opinion he has written in the environmental and natural resources law field, this article hopes to give both those litigants and academics a fertile resource to till. Although Kennedy has been purposefully difficult to interpret in this field (writing very few opinions until lately), his record suggests that he may be receptive to environmental and natural resources claims if they are factually well-grounded and do not conflict with Kennedy's overriding notions of states' rights. The article concludes with some comparisons between Justice Kennedy and Justice Holmes.

Supreme Court Preview.

Abstract: As the 2005 term neared its June 30 end date, the Supreme Court, still adjusting to its first membership change in 11 years, had yet to decide dozens of cases that had defied quick resolution throughout the term. The end of the term seemed a bit bumpy, especially when contrasted with earlier months in which 26 unanimous opinions had been issued with deceptive ease. One of those opinions, Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), No. 04-1152, had been considered a possible harbinger of a new collegiality on the Court. Although the contentious issues at play in that case involved gay rights, free speech, and the military, it was resolved with dispatch and without dissent. Was this how the Court would operate under its new chief justice, John Roberts? But with the last-minute release of seriously fractured decisions in many of the most-watched cases at the end of June, it became clear that the new Court could be as divided as the old. Many of the term's "big" cases, such as Hamdan v. Rumsfeld, No. 05-184, were decided by bare 5-vote majorities and accompanied by the now familiar bevy of concurrences and dissents. Even before the dust had settled, commentators, looking to the future, announced the increased influence of Justice Kennedy. The reason? In high-profile cases such as Hamdan, justices Antonin Scalia, Clarence Thomas, and Samuel Alito tended to align their votes with Roberts, while justices John Paul Stevens, David Sourer, Ruth Bader Ginsburg, and Stephen Breyer did not. It was thus frequently left to Justice Kennedy to determine the outcome of the case, either by casting his lot with one faction or the other, or even, as he did in Rapanos v. United States, No. 04-1034, by creating a 4-1-4 result after writing an opinion no other justice would join. Justice Kennedy even ended up writing an opinion in League of United Latin American Citizens v. Perry, No. 05-204, that headed up a conservative majority for one aspect of the case (rejecting a charge of illegal gerrymandering brought against Republican statewide redistricting moves in Texas) and a liberal majority for another (upholding a Voting Rights Act challenge to the dismemberment of a specific Latino-majority congressional district). Meanwhile, the 4-1-4 result that Kennedy's lone opinion caused in the Rapanos case created an immediate cloud of doubt over the true contours of federal jurisdiction to regulate wetlands under the 1972 Clean Water Act. "It is unfortunate that no opinion commands a majority of the Court," the chief justice noted in Rapanos. "Lower courts and regulated entities will now have to feel their way on a case-by-case basis." The Court began the 2006 term on October 2 with 29 new cases in its inbox--eight fewer than had been accepted for review by this time last year, and only about a third of the total cases it will likely end up agreeing to review before the 2006 term ends in June 2007. Included in this initial batch of "cert granteds" are some genuinely big issues: abortion, environmental law, punitive damages, and the use of race when assigning students to public schools. Before looking ahead to the new term, however, the decisions in a couple of last term's cases are worth a second look. Set against the backdrop of the Iraq War, the war on terror, and September nth, these cases are interesting, both for the way they show the Roberts Court's ability to speak with unexpected clarity one day and in a cacophony the next, and as a cautionary note for those who are tempted to pigeonhole the justices as "liberal" or "conservative" in a narrow political sense. The 2005 Term Free Speech The case of Rumsfeld v. FAIR began when a number of law schools that invited employers into their buildings to conduct job interviews decided to deny military recruiters that same access to students. These schools had all adopted antidiscrimination policies that made their career services and interviewing facilities unavailable to employers who discriminate on the basis of sexual orientation or other prohibited grounds such as race, religion, or national origin. …

The New Commerce Clause Doctrine in Game Theoretical Perspective

Abstract: The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the new doctrinal limitations with the traditional broad scope of the post-New Deal Commerce Clause cases. This Article's new game theoretical analysis satisfies these objectives by offering a compelling normative account of Commerce Clause doctrine and a framework for applying the new methodology to actual cases. The Rehnquist Court announced the new Commerce Clause doctrine in the 1995 decision, Lopez v. United States, which struck down the Gun-Free School Zones Act. The Lopez Court changed the longstanding test governing the scope of Congress's Commerce Clause powers, set out in the infamous 1942 case, Wickard v. Filburn. While prior cases had used "economic" to qualify the effects that the underlying regulated activity had on commerce, the Lopez Court instead used economic to qualify the activity itself. In the 2000 decision, Morrison v. United States, the Court applied the non-economic activities test to strike down the civil remedies provisions of the Violence Against Women Act despite extensive Congressional findings. Most recently, in the 2005 case, Gonzales v. Raich, the Supreme Court applied this test to sustain the Controlled Substances Act's complete ban on private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act, despite the apparent local nature of the regulated activity. Notably, the Raich Court produced four separate opinions, none of which offered a satisfying framework that reconciles the expansive post-New Deal Commerce Clause precedents with the recent retrenchments represented in Lopez and Morrison. This Article traces the Lopez Court's doctrinal modification, explores its implications, and offers an alternative game theoretical analysis that considers the need for a central coordinating authority to effectuate the Congressional policy enacted pursuant to the Commerce Clause. Drawing upon the prisoners' dilemma and the multiple Nash equilibrium bargaining game, this Article grounds the larger goals of the Commerce Clause doctrine in an effort to ensure that Congress has the necessary regulatory authority with which to implement desired policies substantially affecting interstate commerce that states, acting in their individual capacities, would either be unable to implement or would be prone to obstruct. The analysis reconciles the expansive post-New Deal Commerce Clause cases with the more recent retrenchments, embodied in Lopez and in Morrison. While this Article will offer a critical assessment of the Lopez non-economic activities test and of the application of that test in Raich, its larger objective is consistent with the doctrine's goals as expressed by now-retired Associate Justice Sandra Day O'Connor. The goal of Commerce Clause doctrine is to allow Congress to "regulate more than nothing . . . but less than everything." Satisfying these objectives is essential to preserving the integrity of our federal constitutional system which, in contrast with its state counterparts, rests upon the concept of delegated rather than plenary powers. This Article's analysis, which uses game theory to satisfy these goals, should have broad appeal to members of the Roberts Court.

Against Sovereignty: A Cautionary Note on the Normative Power of the Actual

Abstract: Drawing on classical and contemporary jurisprudence and political philosophy, this Essay argues that the Roberts Court should seize the next apt moment to abandon the doctrines of "sovereignty" and "sovereign dignity" that the Rehnquist Court developed over the decade that began with the 1996 decision in the Seminole case. Although pursued in service of the laudable goal of "our federalism," these doctrines work a corruption of our legal, political, and moral self-understanding. As they do so, they distract the Court and the citizenry from the disciplined commitment to the rule of law and legal justice by which a body politic and its state earn their true dignity (but not sovereignty). The Court's baroque and unconvincing metaphysics of sovereignty and sovereign dignity should be retired in favor of a political and legal vision informed by a constitutional commitment to natural law and natural rights, which stand in every season as a bulwark against the overreaching claims of putative sovereigns. A state that by supreme judicial self-profession is axiologically incompetent to pass on questions of the meaning or value of human life is demonstrably not sovereign or possessed of sovereign dignity.

In Search of a Conservative Vision of Constitutional Privacy: Two Case Studies from the Rehnquist Court

Abstract: The Constitutional right of privacy posed particular difficulties for the Rehnquist court both because of the increasing divide between the liberal and conservative wings of the Court, but also from the conflicting views on privacy among the conservative justices. Much of the privacy jurisprudence of the Rehnquist Court reflected the tension between the conservative desire to acquiesce to the doctrine and possibly extend it certain areas, while simultaneously wishing to limit and even reject its application in others. As a result, the Rehnquist Court produced a wavering line of decisions that failed to establish a unifying theory. The lack of clarity in the Rehnquist Court's privacy jurisprudence raises questions about constitutional privacy's future in the 21st century. This article investigates whether or not the right of privacy will carry much force in the Roberts Court and how the appointments of Chief Justice Roberts and Justice Alito will impact the future of the Constitutional right of privacy. This article predicts that the Roberts Court will continue to recognize the right of privacy, but with a distinctly more conservative cast, as foreshadowed by some of the leading privacy decisions of the Rehnquist years. The article examines two Rehnquist Court decisions, one by Chief Justice Rehnquist and one by Justice O'Connor, that may serve as potential models for the development of a conservatively doctrine of constitutional privacy in the Roberts Court. This article uses the decisions in Washington v. Glucksberg and Troxel v. Granville to illustrate the main tenets of each approach and then blends them into a blueprint for a new, conservatively cast doctrine of constitutional privacy for the Roberts Court. The article then proposes six tentative principles for conservative privacy jurisprudence: 1) constitutionally protected privacy interests either derive directly from one of the existing enumerated guarantees or they represent instances of protected liberty under Due Process of the Fifth and Fourteenth Amendments, eliminating the concept of a freestanding right to privacy; 2) extensive use of judicial and legislative pedigrees in assessing the fundamentality of an asserted liberty interest; 3) comparative evaluation of legislative, individual, and judicial competence for decision-making regarding the asserted interest; 4) exercise of judicial restraint, based on the belief that the primary role of the judiciary in privacy matters is to correct outliers rather than to determine new interests or set new directions; 5) application of a flexible review, loosely based on the strict standards of review utilized by the Burger Court, allowing for a more custom-tailored judicial assessment; 6) the use of process to safeguard substantive interests. This projected approach is then compared to the recent decision in Gonzales v. Oregon, as a sample of the possible direction of the Roberts Court. The right to privacy has important implications for all Americans, both liberal and conservative, and should continue to be protected by the Constitution. In the face of the possible choice between limited, conservative protection for privacy interests, and no recognition of a constitutional right to privacy at all, this article provides a potential framework for retaining limited protection for privacy interests during the tenure of an increasingly conservative Court.

Temporal Adversarialism, Criminal Justice, and the Rehnquist Court: The Sluggish Life of Political Factfinding

Abstract: This paper argues that recent, arguably liberal criminal procedure decisions of the Rehnquist Court in its dying days were limited to issues involving adversarial factfinding - factfinding modeled on an ideal of deliberative jury decisionmaking based upon evidence resulting from competitive investigation by lawyer-adversaries. These decisions embraced a broad range of issues, including the Crawford, Blakely, and Hamdi cases, covering the Confrontation Clause, sentencing procedures, and military justice. The Court permits deviations from this ideal for good reasons - such as the special dangers created by the War on Terrorism - though the Court tries to minimize the degree of these deviations. But the Court's criminal procedure decisions outside this area, with the possible exception of the death penalty, have remained starkly conservative. The disparity in perspectives between these two areas, this paper concludes, is due to modern moderately conservative values inherent in the adversarial model, including, for example, a populist and anti-elitist preference for lay decisionmaking, localism, patriotism, and respect for the lessons of the past. The allure of these values, the paper maintains, may ensure the continuing appeal of temporal adversarialism (the word temporal emphasizing the importance of slow, deliberative decisionmaking and slow social change, if any) to the Roberts Court, a model that also has appeal to some liberal Justices.

Where to Go From Here?: The Roberts Court at the Crossroads of Sentencing

Abstract: In recent months we have witnessed a host of major changes to state and federal sentencing. State commissions and legislatures have acted on the Supreme Court’s mandate in Blakely and amended sentencing legislation. Similarly, the U.S. Sentencing Commission has continued its data collection resulting from Booker, though it has not issued any strong recommendations to Congress. The Department of Justice, on the other hand, and some members of Congress continue to press for a sentencing regime that would provide a floor and turn the statutory maximum into the Guidelines maximum.1 In the absence of legislative guidance, so far, federal courts on the trial and appellate level have attempted to respond to the myriad of questions Booker left unresolved. The Supreme Court decided some sentencing issues during the last term and already has granted writs of certiorari in other sentencing-related cases.2 Not all of these matters are guideline-related—the death penalty and the development of the meaning of the Eighth Amendment are likely to return to the Court’s docket in the near future. This Issue presents an impressive array of articles, written by practitioners and academics, which address some of the sentencing issues facing the Supreme Court. The questions range from the survival of Harris to the use of foreign court opinions in developing the meaning of the Eighth Amendment Cruel and Unusual Punishment Clause; they cover the role of the Chief Justice in the rule-making process as well as the relevance of the International Court of Justice’s (ICJ) decision in the Avena case to the fate of Mexican death-row inmates in state prisons around the country; they address the use of risk-based sentencing and challenge the continued viability of Williams v. New York.3 The Issue highlights the scope of the unresolved questions facing the Court and their importance to the future of federal and state sentencing. It is particularly timely as two new Justices have changed the face of the Court and may be crucial in the resolution of some of these issues. In addition, this Issue features an article that begins to develop a new approach to a particularly harsh collateral sanction—deportation. Moreover, we publish a set of primary materials from the Inter-American Commission’s hearings on mandatory minimum sentences in the federal system.