Showing papers on "Roberts Court published in 2007"

Race, Redistricting, and Representation

Abstract: This Essay, which was written for the Ohio State Law Journal's symposium on Election Law and the Roberts Court, examines the Court's decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority's worry in LULAC and that the case is the first application of Justice Kennedy's representation rights concept first introduced in Vieth.

The Supreme Court and voluntary integration

Abstract: This past Term, the Supreme Court wrote the latest chapter on school desegregation In Parents Involved in Community Schools v Seattle School District No 1, (1) a fractured Court struck down two voluntary school integration plans, one from Seattle and the other from Jefferson County, Kentucky (2) The Court found neither plan sufficiently narrowly tailored to survive strict scrutiny (3) A four-Justice plurality, in an opinion by Chief Justice Roberts, seemed inclined to go further and rule that voluntary integration does not advance a compelling interest, thus completely prohibiting the use of race in student assignments (4) But the opinion only hinted in that direction Justice Thomas, who joined the plurality's opinion in full but wrote a separate concurrence, would have taken that extra step and prohibited most if not all attempts to achieve racially integrated schools, which he described as an elitist fad (5) Justice Kennedy provided the proverbial fifth vote, joining the Court's opinion but not the plurality's He also wrote a separate concurrence to make clear that he would approve some consideration of race to achieve some measure of integration under some circumstances (6) Justice Breyer wrote a lengthy and passionate dissent, joined by Justices Stevens, Souter, and Ginsburg, which focused almost exclusively on the plurality's opinion (7) Justice Stevens wrote a separate dissent, which asserted that the decision was a radical break from precedent (8) All of the Justices who wrote, like the parties and amici in the case, fought over who was more faithful to Brown (9) and whether that decision today requires colorblindness or permits affirmative steps to assist and protect minority students (10) There are many things one could say about this case, and undoubtedly much will be said in the months and years to come Some will focus on doctrine and methodology, others on what the decision suggests about the direction of the Roberts Court, and still others on the views of individual Justices Tempting as it might be, I cannot cover all of these topics in depth in one brief essay Instead, I would like to discuss how this case fits within the broader context of school desegregation and education reform, and I would like to concentrate on a seemingly simple question: is this decision important and, if so, why? My answer is mixed On the one hand, this decision does not change much on the ground The truth is that racial integration is not on the agenda of most school districts and has not been for over twenty years Modern education reform efforts might still share the goal of equalizing educational opportunities for minority students, which the Court in Brown embraced But integration is not generally the means of choice to achieve that goal, nor is the Supreme Court the key arena Advocates and reformers have turned their attention elsewhere, and today battles are waged in legislatures and in state courts over school funding, school choice, standards and testing, and access to preschool The dominant question, moreover, is which of these reforms will improve academic achievement as measured primarily, if not exclusively, by standardized test scores The idea that schools should also teach students from diverse backgrounds how to cooperate in preparation for citizenship, like the idea of integration, has been pushed into the background (11) One reason why integration has faded from view is the Court itself Beginning with Brown II (12) and continuing through Parents Involved, the Court has managed--despite some good intentions--to make meaningful integration harder rather than easier to achieve And it has failed, throughout the entire half-century of desegregation cases, to confront the primary contemporary cause of single-race schools: residential segregation Partly as a result of the Court's decisions and partly as a result of its evasions, most school districts today could not integrate, even if they wanted to, because their students are primarily if not exclusively of one race or ethnicity …

Standing at the Crossroads: The Roberts Court in Historical Perspective

Abstract: After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O'Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O'Connor was generally viewed as occupying the Court's centrist, or median, position, Alito has instead continued to embrace the same conservative judicial philosophy that characterized his fifteen-year career on the United States Court of Appeals for the Third Circuit. It now appears that the Roberts Court is one justice shy of what conservatives had long hoped for, namely a core conservative majority that would ensure predictable rulings in key areas of constitutional law, including most notably abortion, equal protection, and criminal procedure. This Article will explain that while this conventional wisdom is generally sound, it is also incomplete in a critical respect. The increasingly prominent conservative center of gravity in the Supreme Court coincides with an overwhelmingly conservative set of federal circuit courts of appeals. This uncommon judicial occurrence becomes all the more significant when we factor in one more consideration. The Supreme Court has proved most willing to alter its standing doctrines, which govern access to the federal judiciary and ultimately to the Court itself, when this combination coincides with a set of standing rules that threaten to undermines the Court's ability, working in alignment with the lower federal judiciary, to further its emerging doctrinal mandate. This even rarer combination has happened only one prior time in the post New Deal period, and that was during the Warren Court.This Article's thesis is ironic: With respect to standing doctrine, which affects the timing of doctrinal transformation, the Roberts Court is most likely to resemble the Warren Court, the very Court whose historical legacy it seeks to counteract. Further core conservative appointments to the Roberts Court will place stress upon strict standing doctrines developed in the Burger and Rehnquist Courts, as the Supreme Court, working in alignment with the conservative lower federal judiciary, seeks to move substantive constitutional doctrine in its preferred ideological direction. Over time, an increasingly conservative Roberts Court will seek to relax the strictest features of standing doctrine to facilitate its broader doctrinal agenda.To support this thesis, this Article develops and presents two new sets of data. Adapting the Martin-Quinn scoring system, the first data set tracks the ideological center of gravity and the stability of dominant coalition structures on the Supreme Court itself from 1937 through 2005. The second data set is the product of original research drawn from the Federal Judges Biographical Database, compiled by the Federal Judicial Center. These data track the ideological balance of the federal circuit courts, for each year from 1933 through 2006 based upon the party of appointing President. This Article transforms these two sets of data into a readily comparable form and presents them together in a chronological table covering the Supreme Court and circuit courts from 1933 through 2006. This Article relies upon these data to explain the conditions under which the Supreme Court has historically developed and transformed its principal doctrinal gatekeeper, namely standing, in an effort to control developing constitutional doctrine in concert with the lower federal courts. The Article then places the Roberts Court in a broader theoretical and empirical perspective that tracks the Court's internal coalition structures and accounts for the historical relationship between ideological dominance on the Supreme Court and the majority of the federal circuit courts. The analysis helps not only in assessing the significance of the Roberts and Alito appointments, but also of potential future appointments in affecting doctrinal change.The Supreme Court's standing rules have long been viewed as a conservative set of doctrines. The Court's most recent, and controversial, standing pronouncement, Massachusetts v. Environmental Protection Agency ('EPA'), which over the dissents of the four core conservatives, afforded standing to the Commonwealth of Massachusetts to challenge the EPA's denial of rulemaking respecting the regulation of greenhouse gas emissions under the Clean Air Act, is consistent with casting standing in such ideological terms. A longer historical view, however, belies the claim that strict standing inevitably serves conservative interests. Since the doctrine's inception in the New Deal, the Supreme Court has willingly modified standing to fit its changing circumstances and in doing so, has also changed the doctrine's ideological cast. This Article provides theoretical and empirical support for the thesis that as the Roberts Court moves further in a conservative direction, it will be poised once more to modify the strict form of standing that characterized that doctrine in the Burger and Rehnquist Courts as a means working with the aligned conservative lower federal judiciary to move doctrine in its preferred ideological direction.

Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life

Abstract: With the replacement of Chief Justice Rehnquist and Justice O'Connor with Chief Justice Roberts and Justice Alito, the pendulum has swung sharply away from Supreme Court deference to campaign finance regulation toward perhaps the greatest period of deregulation we will have witnessed since before Congress passed the important 1974 amendments to the Federal Election Campaign Act. In 2006, in Randall v. Sorrell, the Court for the first time struck down individual contribution limits in candidate elections as too low. In 2007's Federal Election Commission v. Wisconsin Right to Life (WRTL), the Court mostly eviscerated a key aspect of the McCain-Feingold law limiting corporate and union spending in federal elections. More importantly, a new Court majority has signaled its receptivity to many more challenges to campaign finance laws. As Part I of this Article explains, as a matter of jurisprudence the Roberts Court's new approach to campaign finance regulation is just as incoherent as the prior New Deference approach, though moving in a decidedly different ideological direction. Likely in an effort to appear moderate or minimalist, Chief Justice Roberts and Justice Alito have made their deregulatory moves without expressly overturning existing precedent, leading Justice Scalia in WRTL to decry Chief Justice Roberts' and Justice Alito's faux judicial restraint, which Justice Scalia says obfuscat[es] the Court's sub silentio overruling of precedent. Justice Scalia is right (if impolitely blunt): given Chief Justice Roberts' and Justice Alito's views of the First Amendment and campaign finance regulation, there is no jurisprudential reason (though there were political reasons) for the two newest Justices not to join Justice Scalia's concurring opinion expressly calling for overruling of the precedent of deference. As Part II details, however, the lack of jurisprudential consistency described in Part I will be inconsequential for the politics on the ground. Beyond incoherence, the WRTL principal opinion removes effective limits on corporate and union spending from their general treasury funds in elections. The only ads that may not be paid for with such funds are those that expressly advocate the election or defeat of candidates for office and those that are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. There are debatable issues around the edges of interpreting this new test, but those disagreements are likely to be mostly of interest to academics and to those who will deliberately craft advertisements to further push the development of deregulatory jurisprudence. The new test will not pose a formidable obstacle for those corporations and unions that wish to run ads to influence elections. As a result, we could well see a significant rise in corporate election-related spending. Finally, Part III looks at the next likely challenges to campaign finance regulation, and how the Roberts Court is likely to address them. Though the Roberts Court's faux minimalist approach allows for some variation in how lower courts will address campaign finance challenges in the near term, the lower courts' pre-McConnell experience demonstrates that many courts are likely to strike down ever more campaign finance regulations on First Amendment grounds. Those few appellate courts that uphold such laws likely will face Supreme Court reversal. I expect to see challenges to laws that have been upheld by the Supreme Court in the past, such as the ban on corporate and union spending from treasury on express advocacy, the McCain-Feingold ban on contributing soft money to political parties, federal individual campaign contribution limit, and laws requiring disclosure of electioneering communications. I also expect to see challenges to laws that the Supreme Court has not directly addressed, such as a challenge to the constitutionality of contribution limits to independent expenditure committees and 527 organizations. I believe many of these challenges will succeed.

The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond

Abstract: The U.S Supreme Court issued four antitrust decisions this term (the most it has issued since the 1989-1990 term) and seven cases over the past two years. The antitrust activity level of the Roberts Court thus far has exceeded the single case average of the Court prior to the 2003-2004 term by a significant margin. What can be said of the Roberts Court's antitrust jurisprudence? This article examines the quartet of Supreme Court decisions issued during the 2006-2007 term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis and predict that the antitrust jurisprudence of this Court will increasingly reflect this influence.

The Bush Imprint on the Supreme Court: Why Conservatives Should Continue to Yearn and Liberals Should Not Fear

Abstract: ∗ Lee Epstein (http://epstein.law.northwestern.edu) is the Beatrice Kuhn Professor of Law and Professor of Political Science at Northwestern University; Andrew D. Martin is Professor of Law and Chair of the Department of Political Science at Washington University; Kevin M. Quinn is Associate Professor of Government at Harvard University; Jeffrey A. Segal is SUNY Distinguished Professor and Chair of the Department of Political Science at Stony Brook University. We thank Nancy Staudt for her useful comments. For research support, we are grateful to the National Science Foundation and the Beatrice Kuhn Research Fund at Northwestern University School of Law. All the information necessary to replicate the empirical results in this article is located at http://epstein.law.northwestern.edu/research/ChangeOrNot.html houses. 1. Linda Greenhouse, In Steps Big and Small, Supreme Court Moved Right: A 5-4 Dynamic with Kennedy as Linchpin, 156 N.Y. Times A1 (July 1, 2007). Greenhouse continued, “By the time the Roberts court ended its first full term on Thursday, the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.” Id. 2. J. Stephen Breyer, Op. Announcement, Parents Involved in Community Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (Justice Breyer included this comment in his oral but not written dissent). (available at http://www.oyez.org/cases/2000-2009/2006/2006_05_908/opinion/). Minute 32.50 contains the above quote. 3. Joan Biskupic, Roberts Steers Court Right Back to Reagan, USA Today 8A, (June 28, 2008). 4. Nina Totenberg, The Roberts Court and the Role of Precedent, National Public Radio, Morning Edition, http://wsvw.npr.org/templa.tes/story/story.php?storyId=11688820 (July 3, 2007). The full quote is as follows:

The Newer Textualism: Justice Alito's Statutory Interpretation

Abstract: I INTRODUCTION Despite his fifteen-year tenure as a judge on the US Court of Appeals for the Third Circuit, Justice Samuel Alito remained something of a mystery when he was nominated to the Supreme Court in 2005 His lower court opinions were described as "reserved," much unlike the sometimes polemical screeds penned by other members of the bench (1) Justice Alito's seemingly conservative views as an appellate judge prompted some commentators to compare him to Justice Antonin Scalia, (2) but these analysts made little headway in defining Justice Alito's legal methodology with any measure of precision More than a year after his confirmation, legal scholars, the media, and the American public still have many questions about Justice Alito This Note attempts to answer one of those questions: What is Justice Alito's method of statutory interpretation? In 1990, Professor William Eskridge documented the rise of the "new textualism" that Justice Scalia brought to the Supreme Court upon his elevation in 1986 (3) The new textualism, Professor Eskridge explained, "posits that once the Court has ascertained a statute's plain meaning, consideration of legislative history becomes irrelevant" (4) This Note contends that, notwithstanding the frequent comparisons to Justice Scalia, Justice Alito brings a markedly different flavor of textualism to the Court For him the text of the statute still reigns supreme, but legislative history can be used to establish the context in which the statute should be read Just as Justice Scalia's new textualism has influenced the Court since the 1980s, (5) Justice Alito's "newer textualism" might very well make a similar impact on the Roberts Court One of Justice Alito's first opinions as a member of the Court serves as the catalyst for this theory In Zedner v United States, (6) Justice Alito used a federal statute's legislative history to confirm his interpretation of the unambiguous statutory text (7) This move--unorthodox for many textualists--prompted a concurring opinion by Justice Scalia vigorously protesting the use of legislative history (8) Part II of this Note analyzes Zedner, using the dueling opinions of Justices Scalia and Alito to showcase three frameworks through which one can view legislative history and to set the stage for this Note's thesis Because textualism in practice often demands more than what textualism allows in theory, Part IIIA surveys the core tenets of textualism, while Part IIIB reviews one of Justice Alito's typical statutory cases from the Third Circuit and concludes that, at least in simple cases, Justice Alito exhibits textualist behavior Part IV explains and defends Justice Alito's newer textualism Part IVA describes Justice Alito's use of legislative history by comparing two of his Third Circuit cases; Part IVB reconciles his use of legislative history in the chronologically-later case with the core tenets of textualist theory That case serves as an example of the newer textualism Part IVC defends the newer textualism against Justice Scalia's critique of legislative history Finally, Part IVD then argues that Justice Alito's newer textualism is normatively superior to Justice Scalia's practice As a disclaimer, this Note does not attempt to demonstrate that textualism is superior to other methods of statutory interpretation Nor is its analysis meant to serve as a comprehensive review of all of Justice Alito's opinions interpreting statutes Additionally, this Note does not attempt to rationalize all of his opinions, nor does it contend that his opinions are invariably correct Instead, this Note focuses on several opinions in which Justice Alito explicitly sets forth his interpretive method, and uses these opinions to help answer a question that many have posed since his nomination and confirmation: Who are you, Justice Alito? II LEGISLATIVE HISTORY SERVED THREE WAYS: ZEDNER AND THE TEXTUALIST FUTURE OF THE COURT The dueling opinions of Justices Scalia and Alito in Zedner set the stage for a comparative examination of their methods of statutory interpretation …

Chief Justice Roberts, Justice Alito, and New Federalism Jurisprudence

Abstract: The Rehnquist Court returned power back to the states in rulings that scholars have dubbed “New Federalism.” The appointments of Chief Justice Roberts and Justice Alito invite speculation about the future direction of federalism cases in the Supreme Court. A survey of the Roberts Court's federalism rulings discovers that the ideological pathways of new federalism depend upon Justice Kennedy's swing vote and the effects the new appointments have on shaping voting coalitions in light of the vacancies they have filled. Although there is a reconfigured “States’ Rights Five” voting coalition, neither Roberts nor Alito endorses rigid viewpoints about federalism and it remains uncertain if the Court will return to the type of aggressive new federalism which arguably defined the legacy of the Rehnquist Court.

The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond

Abstract: This article examines the quartet of Supreme Court decisions issued during the 2006-2007 Term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court.

Modest Hope for a Modest Roberts Court: Deference, Facial Challenges, and the Comparative Competence of Courts

Abstract: While some seem to believe that ever since Marbury, constitutional interpretation has been solely the prerogative of the judiciary, that notion is wholly untenable. Scholars from across the political spectrum have brought renewed attention to non-judicial constitutional interpretation and criticized the Supreme Court for failing to pay sufficient respect to those interpretations. Meanwhile, the Supreme Court has found itself in an ever-expanding morass, trying to sort out the appropriateness of facial, as opposed to as-applied, constitutional challenges. What at one time seemed to be a clear general rule, with a narrow First Amendment exception, has devolved into confusion bordering on incoherence across a wide range of constitutional provisions. This essay considers these two developments together. It argues that an exploration of the comparative competence of courts regarding constitutional interpretation should inform the judiciary's approach to facial, as opposed to as-applied, constitutional challenges. That exploration suggests a modest role for the judiciary and a strong preference for as-applied rather than facial approaches to constitutional adjudication. Moreover, building on the observation of other scholars that substantive constitutional doctrine affects the availability of facial challenges, this essay also argues that constitutional doctrine should itself be shaped with an awareness of this effect and that courts should be reluctant to embrace substantive doctrine that undermines their own comparative competence. Finally, several early decisions from the Roberts Court suggest that the Court may be moving toward the more modest role articulated by Chief Justice John Roberts and associated with as-applied challenges, while the addition of Justice Samuel Alito to the Court may contribute to this movement.

The Decline of Legally Mandated Minority Representation

Abstract: The Supreme Court launched the practice, twenty years ago, of creating safe minority election districts. To comply with the Court's mandate, election districts throughout the United States were redrawn in the wake of the 1990 Census. Ironically, though, ever since the Court spawned this practice, it has been trying to cabin its own creation. In every single plenary decision since that initial moment of creation, the Court has cut back on the obligation to create safe minority districts, whether through constitutional limits on racial redistricting or though narrow readings of the scope of the Voting Rights Act. Nonetheless, the politics of safe districting has retained a life of its own. Even as the Court has reduced the force of legal obligations, the political practice of safe districting remains much as it became in the early 1990s. Whether due to the increased political power of minority communities, the power of incumbent minority officeholders, or misunderstandings about the legal obligations the Voting Rights Act actually imposes today, safe minority districts where such districts can be created remains the norm. In the first Voting Rights Act decision of the Roberts Court, the Court found part of Texas' recent congressional redistricting to violate the Act. As the first full decision on the merits to find the design of a congressional district to violate the Act, the Court's decision has been celebrated by many commentators as signaling a new Court commitment to the race-conscious design of safe election districts. This Article argues to the contrary. Properly understood, the Court's decision is yet another step in the Court's efforts to pull back from the implications of its initial intervention that revolutionized the design of election districts. Even so, this Article concludes, the political practice of safe districting will remain unaffected by the Court's most recent effort to limit it. If so, it will not be the first time a revolution has consumed its own creators.

Evans v United Kingdom: Paradigms Of Parenting

Abstract: results of a sonogram of the developing foetus and so on. In short, what seems likely is the continued attrition of a woman's right to terminate an unwanted pregnancy-but not under the rubric of 'protecting' the foetus, rather sheltering under the neo-paternalist pretext of 'protecting' the woman. If, though, there is any lesson to be extracted from the history of abortion regulation since Roe, it is that much depends on the Court's composition. Gonzales suggests an emerging, if fragile conservative 5-4 majority on the Court. Pivotal in the emergence of this conservative majority was the retirement in 2006 ofJustice O'Connor-a former member of the Arizona state legislature appointed to the Court by President Reagan, but who disappointed many social conservatives with what they perceived as her slide 'to the centre'. O'Connor had authored Casey, and was the critical fifth vote in Stenberg. O'Connor's replacement was Justice Alito-an Appeals Court judge who, in the 1980s, had worked as a Reagan political appointee in the Department of Justice. If the retirement of Justice O'Connor was pivotal, it is, however, Justice Kennedy who, today, is the pivot around which the conservative majority spins. His is the critical fifth vote: Kennedy voted with the majority in Casey, but vigorously dissented in Stenberg and has now authored the majority opinion in Gonzales. It can, of course, be dangerous to read too much into a single decision. Yet, at the same time, Gonzales seems portentous. Coming, as it does, so early in the'chiefship' of ChiefJustice Roberts, and on as divisive an issue as abortion, it is difficult not to look upon Gonzales and wonder whether it is a harbinger of a conservative counter-revolution on the Court. After all, Gonzales is the first decision to uphold a ban on a specific abortion procedure, and also represents the first time that the Court has approved an abortion restriction that fails to provide an exception for the health of the pregnant woman. In this, the Roberts Court has, within a couple of years, not only achieved the conservative majority that eluded the Rehnquist Court but secured a long-desired victory for social conservatives that breaks a decade long stalemate on abortion.

Racial Classification and the Flawed Pursuit of Diversity: How Phantom Minorities Threaten "Critical Mass" Justification in Higher Education

Abstract: I. INTRODUCTION1 In December, 2006, the Supreme Court heard oral argument in a pair of cases that once again thrust racial classification to the forefront of public debate. The two cases, Meredith v. Jefferson City Board of Education2 and Parents Involved in Community Schools v. Seattle School District3 are the Court's first review of racial classification under the leadership of Chief Justice John Roberts. Amidst the controversy surrounding whether or not government can constitutionally engage in racial classification, however, a crucial question is all too often overlooked: who, in a society that increasingly reflects a kaleidoscope of different ancestries and heritage, qualifies as racially diverse? The Supreme Court last considered race-based affirmative action in Grutter v. Bollinger, where the Court upheld the University of Michigan's affirmative action plan based on critical mass.4 Legal scholarship has widely praised and criticized that decision.5 Affirmative action advocates generally argue that the Grutter majority correctly applied a heightened level of scrutiny while permissibly adapting traditional strict scrutiny analysis.6 More conservative-minded scholars argue that Grutter was a legal aberration because any racial preference not only invites, but requires the application of strict scrutiny to all aspects of a racial-preference system.7 Unfortunately, largely absent from these popular arguments is the important debate concerning mixed-race individuals who are rapidly becoming the face of modern America. The Grutter majority's failure to provide a clear definition of who is a racial minority makes the concept of racial preference somewhat illusory. The Court sanctioned the use of racial preference, but gave no direction regarding how to go about making that classification.8 American society is itself increasingly diverse,9 making any absolute definition of who is included in the definition of "minority" particularly elusive.10 Now the Roberts Court is tasked with determining whether diversity is still a compelling government interest, and if so, how to correctly apply narrow tailoring, yet it must do so without any clear criteria as to what actually constitutes diversity. All men may be "created equal," but not all minorities are similarly situated. At one extreme of a racial continuum exist minorities who have a dramatically different outlook on life than the typical middle-class Caucasian: a decidedly racial perspective.11 They contribute to racial diversity through their very appearance and life experience.12 At the continuum's other extreme are what may be best described as "phantom minorities": they look white,13 have Anglo names, and come from backgrounds void of racial-life experience, but nevertheless, exploit race-based affirmative action. Like a phantom that passes through a crowded room undetected, they are otiierwise unidentifiable as minorities; their ethnicity emerges only momentarily when filling out applications for work or school, only to quickly disappear once again. Phantom minorities have the same advantages and perspectives as their white counterparts, but in contrast, can check the proverbial "box"14 and use dieir marginal minority status to reap the benefits of affirmative action widiout contributing to racial diversity. Furthermore, phantom minorities provide an easy solution for schools and employers to satisfy their "diversity" goals without actually increasing diversity.15 This Comment argues that a clearer metiiod to determine who qualifies as an ethnic minority is necessary in order for affirmative action to survive stringent, narrow tailoring requirements16 and enjoy continued implementation in institutions of higher learning.17 The lack of scrutiny on minority status undermines the legitimacy of critical mass rationale and seriously threatens the constitutionality of affirmative action itself.18 In order to legitimize the pursuit of a critical mass, programs that rely on racial classification must clearly articulate the criteria of what "racial minority" includes, and look beyond simply whether or not the proverbial box was checked to account for the presence of phantom minorities. …

The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell

Abstract: This article, part of a symposium on Election Law and the Roberts Court in the Ohio State Law Journal, considers the Supreme Court's recent decision in Randall v. Sorrell (2006) striking down Vermont's campaign expenditure and contribution limits. The Supreme Court's campaign finance jurisprudence before Randall was marked by swings in doctrine and general incoherence. At first glance, the plurality opinion in Randall appears to add a level of coherence to campaign finance law by judging the constitutionality of such laws through an assessment of the relationship between campaign contribution limits and political competition. Alas, the appearance of coherence is illusory, and there is little reason to believe Randall marks a significant move by the Courts to embrace the political markets approach.As Part II explains, the Court in Randall has not embraced competition as the organizing principle for analyzing the constitutionality of all campaign finance laws or election laws. The focus on competition - which garnered the votes of only three Justices, and one of the three noncommittally - appears to be the outcome of a compromise between Justice Breyer, who wanted to preserve as much of existing doctrine as possible against a deregulationist trend, and the two newest Justices on the Court. Existing Supreme Court election law doctrine, including its recent partisan gerrymandering jurisprudence, also rejects the anticompetition principle as a means of deciding election law cases.Part III then turns from external coherence to the internal coherence of the competition test for low contribution limits, finding the test less predictable and coherent than its technocratic nature suggests. Following Randall, it appears that challenges to low contribution limits will turn - or at least appear to turn - upon fact-intensive political science expert testimony about the amount of money necessary to run a competitive race in the relevant jurisdiction. But such testimony often will be speculative when it comes to whether enough money may be raised to insure a competitive race. Court decisions could well turn upon a thin credibility determination to be made by the court, a determination that may depend upon each judge's predisposition to favor or oppose the particular campaign finance regulation.Part IV advocates that courts engage in a careful and honest balancing that gives considerable deference to the value judgments made by states in enacting campaign finance laws, but then use close scrutiny to make sure the measure is carefully drawn to meet those goals. This kind of honest balancing was impossible in Randall because of the Court's ostensible rejection of the political equality rationale for campaign finance regulation. The real question the Randall Court should have asked is whether the Vermont law was closely drawn to promote political equality and, if so, whether the costs to individuals and groups who wanted to mobilize for political action were too great to allow the law to go forward despite its gains in promoting political equality.

The Future of Bush v. Gore

Abstract: At the beginning of the Roberts Court, this article considers three dimensions of the Rehnquist Court's most famous precedent, examining the precedent's potential for influencing the development of the law along each of these dimensions. First, to what extent will the Equal Protection holding of the Court's opinion in Bush v. Gore generate a new domain of meritorious Equal Protection challenges to voting inequalities? Second, to what extent will the Supreme Court's willingness to stop the Florida recount in 2000 result in greater judicial intervention into voting procedures while they are underway? And third, to what extent will the intense media and academic criticism of Bush v. Gore affect the Court's role in constitutional cases generally? The article will devote more space to the first of these questions, because elections in 2004 and 2006 revealed a myriad of fact patterns that generate potentially meritorious claims requiring detailed substantive analysis of the Equal Protection precedent. Even so, the article's answer to the second question (also based on insights from voting-related litigation in 2004 and 2006) — that Bush v. Gore discourages judicial intervention into the voting process — is significant, because it corrects a misreading by many eager litigants of the signal sent by the Court. And as for the case's long-term implications for constitutional law generally, they are likely to be minimal, because the reason for the case's extreme notoriety (its role in identifying the winning presidential candidate) is likely to be its least important attribute over time.

Congressional Power to Extend Preclearance: A Response to Professor Karlan

Abstract: Part I of this Essay parses the factors Professor Karlan identifies as characterizing the preclearance regime, which she claims give rise to distinct congressional power in this realm. This Part explains why the Roberts Court is likely to read each of these factors less expansively than does Professor Karlan. Part II offers an alternative approach through which to explore validity of reauthorization, one that requires adapting the City of Boerne framework to accommodate section 5is status as an operational statute. Part III concludes this commentary.

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.

Reviving the Right to Vote

Abstract: Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. This Essay argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well have salutary effects. The focus is on the Supreme Court's recent decision in LULAC v. Perry, the most recent example of the sort of judicial decision about which election law scholars fret. Unable to articulate any constitutional problem with a blatant partisan gerrymander in Texas, the Supreme Court found traction under the Voting Rights Act and held that a portion of that gerrymander diluted minority voting strength in the southwest portion of the State. A close reading of that holding as well as the Court's refusal to provide relief on a related claim brought by African-American voters in Fort Worth reveals that the race-based injuries presented in LULAC were hardly an ancillary distraction obscuring the core dispute, but instead, a predictable consequence of the gerrymander itself. As important, the surprising manner in which the Court resolved the VRA claims suggests a nascent conception of political harm experienced by all voters when system is rigged to block competition. In other words, LULAC suggests that Justice Kennedy may find within the Voting Rights Act itself the standard he has been seeking for managing claims of partisan gerrymandering.

Global Climate Change: The Roberts Court and Environmental Justice

Abstract: The first full term of the Roberts Court was momentous. The two newest justices--the chief justice and Justice Alito--pledged "judicial modesty" in their Senate confirmation hearings, but they disregarded settled law on politically charged issues: abortion, affirmative action, campaign finance reform, punitive damages for tobacco companies, and separation of church and state. Justice Kennedy replaced Justice O'Connor as the swing vote, hewing the Court further to the political right, while Roberts and Alito voted together in 92 percent of nonunanimous decisions. The Roberts Court has become highly activist--not shy about circumventing precedent, invalidating policy decisions by the elected branches of government, and ignoring principles of federalism. The Supreme Court is moving quickly to a doctrine of "constitutionalism in reverse," protecting the interests of the privileged over the powerless. In the midst of all this, there was a major victory that may be the most important environmental case ever decided by the Supreme Court. In Massachusetts v. EPA, Justice Kennedy joined with the liberal wing of the Court in a five to four decision, with Roberts writing the dissent. (1) The Court held that the Environmental Protection Agency has the authority to regulate heat-trapping gases emitted by automobiles. Justice Stevens, writing for the Court, said the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a reasoned, scientific basis for its refusal. This marked the first time that the Supreme Court has opined about global warming. The Case In 1999, environmental groups petitioned the EPA to regulate greenhouse gases, including carbon dioxide, under the Clean Air Act. Their petition was supported by respected scientific opinion that a significant increase in the atmospheric concentration of greenhouse gases is causing an alarming rise in global temperatures. The Clean Air Act requires the agency to regulate "the emission of any air pollutant from ... new motor vehicles ... which causes or contributes to, air pollution ... reasonably anticipated to endanger public health or welfare." (2) In 2003, the EPA denied the rule-making petition, reasoning (contrary to the opinions of its former general counsels) that it lacks the power to address global climate change and that, even if it had the authority, it would be unwise to do so due to conflicting administration priorities and scientific uncertainty. The Supreme Court has repeatedly used the issue of "standing" (the legal right to initiate a law suit) to block private individuals from challenging government actions, especially in environmental cases. Justice Scalia has led this effort, and the chief justice appears to fully support Scalia's endeavor. But in this case, the Court found that Massachusetts has a special position as a sovereign state whose population is at "actual and imminent" risk of harm from global warming: a precipitate rise in sea levels, irreversible damage to natural ecosystems, increased spread of disease, and more ferocious weather events. (3) The EPA's unwillingness to regulate motor vehicle emissions should be seen within the backdrop of the administration's steadfast refusal to act on global climate change: withdrawing support for the Kyoto Protocol, undercutting an EPA report blaming human activity for climate change, and altering scientific reports to minimize the threat of global warming. Most recently, at the G-8 Summit, President Bush adamantly opposed hard targets for reduction of greenhouse gases. The EPA believes Congress did not intend for the agency to regulate in the sphere of global climate change. It argued before the Supreme Court that carbon dioxide is not an "air pollutant" despite the Clean Air Act's capacious definition that includes any physical or chemical substance emitted into the ambient air. …

Hudson and Samson: The Roberts Court Confronts Privacy, Dignity, and the Fourth Amendment

Abstract: “The principles . . . affect the very essence of constitutional liberty and security. They . . . apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property.”

Clear Notice for Conditions on Spending, Unclear Implications for States in Federal Healthcare Programs

Abstract: This article explores an important case from the 2005-06 Supreme Court term, Arlington Central School District Board of Education v. Murphy. Murphy is a benchmark for Spending Clause jurisprudence, as the new Roberts Court adopted what was the dissenting view for years, but its significance has gone largely unnoticed. Additionally, Murphy may have critical implications for the federalism revolution and for the country's largest healthcare programs. These broad observations are focused in this article by the example of the Clawback Provision, a new Medicaid requirement that has been challenged by New Jersey, Texas, Maine, Missouri, and Kentucky. The Supreme Court denied original jurisdiction, but the states are likely to proceed in district court (they stand to lose millions of dollars under the Clawback Provision). This article finds that the Murphy analysis alters long-standing Spending Clause doctrine in a way that is likely to narrow Congress' ability to place conditions on federal funds. Also, if the Court was seeking to strengthen the states' position regarding conditions on federal spending, it missed the mark because it ignores the reality of long-standing spending programs and states' inability to reject federal conditions in such programs (as with the Clawback Provision). This piece also observes that Congress could not have anticipated the clarity required by Murphy when drafting the Medicare and Medicaid statutes and that this new standard could have far-reaching effects on these forty-year-old healthcare programs. Ultimately, the article calls for a fresh look at spending power jurisprudence in light of both Murphy and long-entrenched spending programs such as Medicare and Medicaid.

Schauer on Precedent in the U.S. Supreme Court

Abstract: Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, notice, and predictability" in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it.

Re-Examining the Constitutionality of Prayer in School in Light of the Resignation of Justice O'Connor

Abstract: I. INTRODUCTION When Justice Sandra Day O'Connor resigned from the United States Supreme Court in June of 2005, she ushered in a period of speculation. What would the Court be like without her? Will either of the new appointees, Chief Justice John Roberts or Associate Justice Samuel Alito, take her place in the ideological center of the Court, or will the Court shift further to the conservative right? While the nation at present may be focused on the impact of this change at the head of the Judicial Branch on the robustness of the Court's precedent in Roe v. Wade,1 for those who follow education law O'Connor's position as the swing vote in numerous school cases focuses attention on other areas of jurisprudence, in particular, the principles guiding the application of the Establishment of Religion Clause of the First Amendment2 to instances of school prayer. Since the landmark decision in McCollum v. Board of Education? the Supreme Court has analyzed three categories of school prayer cases: devotional activities, curricular choices, and ceremonial prayers. Each category has required the Court to examine the application of the Establishment Clause, often in balance with other First Amendment provisions including the right to free exercise of religion4 and the right to free speech.5 In McCollum and subsequent decisions,6 the Court has established boundaries for school prayer. It has instructed that permissibility of school prayer depends on the following: first, who is praying (school employees or others);7 second, whether students are compelled or coerced into participation or acceptance of the prayer;8 and third, in what forum or context the prayer occurs.9 However, with the exception of two cases,10 each decision has been issued by a divided Court. That division raises questions regarding the robustness of the principles governing school prayer and whether changes in the Court's composition could alter the jurisprudential logic applied to situations involving some form of prayer in schools. The purpose of this paper is to explore the question of the constitutionality of various forms of school prayer given the expected shift to the right with the newly constituted Roberts Court. Ultimately, the paper examines the following question: Is it possible that the Court could reverse the decisions of the last decade and a half and find that various forms of school prayer11 are constitutional? To address this question, the paper first provides an historical overview of the Court's jurisprudence with respect to prayer in public elementary and secondary schools. The next section of the paper reviews available writings of Chief Justice Roberts and Justice Alito to determine where on the ideological spectrum of the Court each is likely to position himself. Finally, the paper concludes with an examination of the question posed with particular attention to the school prayer issues that may confront the Roberts Court and the implications for school leaders if any shift in Establishment Clause jurisprudence results. II. HISTORICAL OVERVIEW OF THE COURT'S JURISPRUDENCE WHEN PRAYER IN SCHOOL IS AT ISSUE Since 1948, the Supreme Court has decided thirteen cases that presented questions of whether and under what circumstances religious doctrine or prayer have a place in public schools as an accommodation to individual beliefs.12 Table 1 lists those cases, the issues litigated, the judicial holding and the manner in which the nine members of the Court voted. The first case the Court heard in 1948 involved public schools in Champaign, Illinois that allowed local churches and sectarian groups to send individuals into the schools for thirty minutes each week to teach religion.13 The Court found the practice violated the Establishment Clause and explained its rationale in the following way: [T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. …

Rashomon and the Roberts Court

Abstract: The first election law decisions of the Roberts Court confirm that the Supreme Court remains trapped in a doctrinal interregnum. Due to the vagaries of politics and the timing of retirement decisions, no one knows precisely who will be in the majority after the next few appointments. For this reason, the Court is trapped in a holding pattern. Aware of the imminence of a paradigm shift but unsure where the next analytic road will lead, it is content with going through the motions, patching the holes in the existing foundation, holding the doctrinal edifice together a little while longer. Further evidence that the doctrinal interregnum continues is provided by essays written by four major election law scholars (Guy Charles, Pam Karlan, Ellen Katz, and Richard Pildes) on the Court's most recent Voting Rights Act decision. The authors' interpretations of LULAC are so different that at times one wonders whether they were reading the same opinion. This Rashomon effect is just what one would expect from a court in an inchoate state. This commentary compares and contrasts those four essays and offers some extended reflections on the dilemma a doctrinal interregnum poses for scholars writing in the field of election law. Building on a description of Brandeis as the master of the microscope and telescope, it suggests that there are three potentially productive paths scholars might follow. The first is to focus on the granular view - on the story being told in each case. Second, academics might focus on the telescopic view, trying to figure out the broader intuitions and impulses that run across cases. Finally, an alternative to both the microscope and the telescope is to stop looking at the Court through either instrument. Election law scholarship has recently taken an institutional turn. Scholars have begun to turn away from the courts, looking to other administrative mechanisms for improving our electoral system. These academic debates might move us way from a court-centered approach and suggest more interesting paths for us to follow going forward.