scispace - formally typeset
Search or ask a question

Showing papers on "Roberts Court published in 2008"


Journal Article
TL;DR: For instance, the recent renewal of the Voting Rights Act has been characterized by a series of strange events and ironic conjunctions as discussed by the authors, which is typical of the history of the most controversial Section 5, which requires that all changes in election laws in "covered jurisdictions," chiefly in the Deep South, be submitted to the Justice Department or the District of Columbia District Court for "preclearance" before they are allowed to go into effect.
Abstract: Strange events and ironic conjunctions pervade the narrative of the renewal of provisions of the Voting Rights Act 2005-2006. Never has the radical, still-controversial Act been treated in such hushed, reverential tones, and never has its discussion been so blatantly manipulated for immediate partisan advantage. Never have there been so many proposals for comprehensive changes when the temporary parts of the Act have come up for renewal, and never has there been less serious debate about the Act in committees and on the floor of Congress. Never has support for the Act in Congress and the country seemed so universal, and never has its constitutional future before the Supreme Court seemed so tenuous. This Article shows that the strange, ironic nature of the recent consideration of the Voting Rights Act is not unusual, but rather that it is typical of the history of the most controversial provision of the Act, Section 5, which requires that all changes in election laws in "covered jurisdictions," chiefly in the Deep South, be submitted to the Justice Department or the District of Columbia District Court for "preclearance" before they are allowed to go into effect. In its early years, Section 5 was largely ignored by state and local governments, and the Justice Department was too disorganized to police it, anyway. After receiving a judicial blessing from the Supreme Court, Section 5 was for the first time vigorously enforced by the Nixon Administration, which had opposed its effective continuation, and the Carter Administration, the first administration headed by a president from the Deep South since before the Civil War. Two Supreme Court decisions in 1976 and 1980 that threatened to sap the Act's vigor instead stimulated civil rights activists to mount a campaign for amendments that overwhelmed the Reagan Administration and led to the largest increase in minority elected officials since the first years of the post-Civil War Reconstruction. But no sooner had the promise of the Act finally been fulfilled than the Supreme Court-through strained interpretations of the Act's intentions and, even more ironically, through the use of the Fourteenth and Fifteenth Amendments to hamper, instead of to protect, minority political rights-stripped the Act of much of its power. By 2006, the Act's iconic status insured its persistence, but the fears of its staunchest proponents and the barely hidden antipathy of many members of the dominant political party prevented amendments that might have increased its chances to pass muster with the Roberts Court. Eight days after President George W. Bush signed the law, Gregory Coleman, a Texas lawyer with strong ties to the Republican Party, filed a serious challenge to the constitutionality of Section 5. The strange career continues. Analyzing the complete history of Section 5 and emphasizing the story's ironic elements and shifting course yield lessons that may be useful in the continuing struggle to protect the political rights of minorities. I. The Tangled History of the Voting Rights Act A. Latest Twists On July 20, 2006, only one day after the Senate Judiciary Committee reported a bill reauthorizing key provisions of what conservative columnist George Will called "the 20th century's noblest and most transformative law,"1 the U.S. Senate briefly debated and unanimously passed the Voting Rights Act Reauthorization and Amendments Act (VRARA).2 The apparent impetus for the unusual haste3 by "the world's greatest deliberative body,"4 was the fact that President George W. Bush wished to cite the imminent passage of the Act as evidence of racial progress under his Administration in a speech, arranged at the last minute,5 marking his first appearance as president before a convention of the National Association for the Advancement of Colored People (NAACP).6 But the curtailment of even the appearance of deliberation7 in order to serve the most immediate of political purposes was not the only odd aspect of the 2005-2006 renewal saga. …

18 citations



Posted Content
TL;DR: The Article concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.
Abstract: This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.

7 citations


Journal Article
TL;DR: The U.S. Supreme Court as discussed by the authors established the parameters of modern American death penalty jurisprudence, limiting the death penalty to those who committed murder in a manner deemed especially heinous and despicable by judges and juries, requiring evenhandedness and consistency in capital sentencing, and insisting that sentencing authorities examine the individual characteristics of each offender and the particular circumstances of his crime.
Abstract: [Excerpt] “In 1976, four years after finding the nation’s death penalty laws to be constitutionally flawed, the U.S. Supreme Court established the parameters of modern American death penalty jurisprudence. Since then the Court has gone through several phases. The Court proceeded cautiously from 1977 to 1982, limiting the death penalty to those who committed murder in a manner deemed especially heinous and despicable by judges and juries, requiring even-handedness and consistency in capital sentencing, and insisting that sentencing authorities examine the individual characteristics of each offender and the particular circumstances of his crime. From 1983 to 2001, however, the Court took a more aggressive stance in favor of capital punishment. The Justices rejected major constitutional challenges to the fairness of death penalty laws and upheld the constitutionality of executing mentally retarded offenders, sixteenand seventeen-year-old offenders, and felony accomplices who neither killed nor intended to kill. Beginning in 2002, the Justices once again began to scrutinize death penalty statutes and procedures closely and with a critical eye. The Court reversed its holdings permitting the executions of mentally retarded offenders and juvenile offenders, tightened standards for appellate review of the competence of capital defense attorneys, and invalidated sentencing procedures that seemed likely to produce arbitrary or discriminatory life-ending verdicts.”

7 citations


Journal Article
TL;DR: The Public Expression of Religion Protection Act of 2007 (PERA) as mentioned in this paper was proposed as a possible legislative solution to expand the ability of schools to accommodate religious practices that fall between the Establishment and Free Exercise Clauses.
Abstract: INTRODUCTION In the two decades since the Supreme Court left open the door for permissive religious accommodation in Employment Division v Smith, (1) the Court has only obscured the doctrine further by creating multiple and overlapping analytical frameworks (2) Public schools in particular have been caught in the crossfire between the mandate of the Free Exercise Clause and the prohibition of the Establishment Clause They must attempt to walk a tight rope over a jurisprudential minefield, while trying to meet the needs of increasingly diverse student bodies (3) As the Roberts Court begins to take a fresh look at the First Amendment, (4) Congress has recently sought to encourage the Court to clarify the scope of the "play in the joints" (5) between the Free Exercise and Establishment Clauses, and the authority of state actors to accommodate their constituents' religious practices An important component of the balance Congress has struck in this area, 42 USC [section] 1988, rewards those successful in bringing [section] 1983 (6) suits for Establishment Clause violations with attorneys' fees The statute, however, does more than simply give incentives to plaintiffs bringing [section] 1983 suits In practice, [section] 1988 has placed schools in an impossible position With no standard to assess the risk that they will lose a [section] 1983 claim and face paying plaintiffs' legal fees, schools must either risk losing budgetary funds at a time when school programs are already being cut for lack of funding (7) or give in to the demands of plaintiffs' lawyers As a result, powerful interest groups are given the green light to intimidate schools into accepting their interpretations of the First Amendment rather than allowing such important constitutional questions to be decided by the courts The proposed Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2007 (PERA) would prohibit courts from awarding attorneys' fees under [section] 1988 for Establishment Clause violations, thereby removing one of the burdens on schools attempting to accommodate minority religious practices (8) This statute would recalibrate the balance between litigants to the default American rule, (9) thus allowing each party to stand on equal footing when making strategic litigation decisions This Note is in three Parts Part I examines the current state of the Court's free exercise jurisprudence and the state of permissive religious accommodation in public schools, arguing that a lack of clear guidance from the Court has led to inconsistent results that shrink the space between what the Establishment Clause forbids and what the Free Exercise Clause demands Part II provides a case study on the state of religious accommodation in public schools, discussing the experience of a public elementary school that recently attempted to accommodate minority religious beliefs Finally, Part III explores the Public Expression of Religion Act as a possible legislative solution to expand the ability of schools to accommodate religious practices that fall between the Establishment and Free Exercise Clauses I PERMISSIVE ACCOMMODATION: RELIGIOUS FREEDOM IN A PLURALISTIC SOCIETY The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" (10) These sixteen words were written by "a group of statesmen who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined" (11) The Court has stated that "the common purpose of the Religion Clauses 'is to secure religious liberty'" (12) In 1952, the Court stated that "[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions …

7 citations


Posted Content
TL;DR: In this article, a critique of colorblind constitutionalism through an examination of the Court's race jurisprudence is presented, focusing on the fact that the Court has dramatically reinterpreted the Fourteenth Amendment and Justice O'Connor's decisions serve as pivotal points for this radical reinterpretation.
Abstract: My article is a forward-looking, historical piece that offers a critique of colorblind constitutionalism through an examination of the Court's race jurisprudence. Justice O'Connor's affirmative action decisions serve as a model for a critique of neutrality and inversion - the doctrinal technique of turning substantive concepts inside out in the name of neutrality only to preserve systemic oppression - the Court has dramatically reinterpreted the Fourteenth Amendment. Justice O'Connor's decisions serve as a pivotal point for this radical re-interpretation. What is striking about this shift is that Justice Thomas has become a leading race theorist on the Court - he turns history inside out so that a militant historical figure like Frederick Douglass becomes a proponent for colorblind constitutionalism. This article critiques this doctrinal development through an in depth analysis of the themes underlying Justice O'Connor's race jurisprudence and Justice Thomas's rhetorical use of historical revisionism. This article will serve as a conceptual link between the race jurisprudence of the Rehnquist Court and the emerging conservative race jurisprudence of the Roberts Court.

6 citations


Posted Content
TL;DR: In the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Roberts Court never got around to limiting Congress's power under the Spending Clause.
Abstract: Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's spending power But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases Rather, the Court is likely to act indirectly-through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v Butler, but rather Arlington Central School District Board of Education v Murphy

5 citations


Journal Article
TL;DR: This article analyzed the relationship between the Supreme Court and the federal circuit courts of appeals from 1933 through 2006, using the Martin-Quinn scoring system and the Federal Judges Biographical Database.
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.

5 citations


Posted Content
TL;DR: In this paper, the authors investigate the relationship between antitrust and intellectual property rights in the context of patent applications, and provide insights into the divergent approaches to competition policies that have developed in these overlapping regimes.
Abstract: The Supreme Court under Chief Justice John Roberts has rendered only one decision, Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) that explicitly addresses the relationship between antitrust and intellectual property rights. But there have been at least five more decisions that bear on the broader topic of competition policy and intellectual property rights. An interesting dynamic emerges from this cluster of opinions: While the antitrust cases apply intellectual property rights to justify restraints on competition, the three patent cases call for limits on their exclusionary logics and effectively seek to open the door to increased competition. Altogether, these six decisions seem to extend rather than alter the Court's preceding jurisprudential trajectories in antitrust and intellectual property rights. In this light, they offer some insights into the divergent approaches to competition policies that have developed in these overlapping regimes. Especially for those who correlate progress with open access and competitive markets, these divergences summon closer attention to a neglected competition policy working within the patent regime, as well as to the broader array of competition logics working in the domain of intellectual property. The first section investigates some relationships between antitrust and intellectual property rights. It begins with Independent Ink, a tying case that involves a patented product, and then proceeds to explicate the power of trademark rights to shape the antitrust analysis of two price-fixing claims, one involving resale price maintenance and the other a joint venture in refining and marketing. The second section examines three patent cases, whose array of opinions seek to limit exclusionary rights and effectively open space for increased competition. The essay concludes with some observations about the crosscurrents of competition policy.

4 citations


Journal Article
TL;DR: Since 1976, the Supreme Court approach to campaign finance law has swung like a pendulum, with periods of Court deference to regulation alternating with a more skeptical approach that views the First Amendment as barring much campaign finance regulation as mentioned in this paper.
Abstract: Since 1976, the Supreme Court’s approach to campaign finance law has swung like a pendulum, with periods of Court deference to regulation alternating with a more skeptical approach that views the First Amendment as barring much campaign finance regulation1 The end of the Rehnquist Court saw the Court in its most deferential posture ever, with a jurisprudence notable not only for its deference but also for its incoherence2 The Court, in its “New Deference” cases,3 spoke the language of anticorruption, but it was moving ever closer toward endorsing an equality rationale for campaign finance regula-

4 citations


Posted Content
TL;DR: The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983 as discussed by the authors.
Abstract: The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, the Roberts Court granted a petition for certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the case, but petitions for certiorari regularly arise in similar Medicaid enforcement cases. Thus, Gonzaga is likely to be revisited in the context of enforcement of Medicaid statutory entitlements. Medicaid does not contain an enforcement mechanism, but the Supreme Court facilitated enforcement of federal statutory rights against state officers through section 1983. However, this paper highlights recent events that increase the fragility of Medicaid. The first part of this paper explores the structure of Medicaid and key provisions of the Deficit Reduction Act of 2005 that change Medicaid from a program of promised care and benefits into one of no enforceable promises. The second part of this paper discusses Supreme Court decisions that reveal hostility to enforcement of conditions on spending legislation by beneficiaries under section 1983. This part also explores how changes in the Court's composition may allow this view to become the prevailing rule. Additionally, this section demonstrates the narrowing ability of individuals to enforce Medicaid entitlements through section 1983 due to two distinct but related splits in the circuit courts. The final part of this paper analyzes the Court's hostility to enforcing conditions on spending by section 1983 and proposes legislative responses to the impending demise of the Medicaid entitlement.


Journal ArticleDOI
TL;DR: Briffault et al. as mentioned in this paper argued that campaign finance restrictions can be applied only to electoral activities and not to other, non-electoral, political activities, such as issue advocacy.
Abstract: The Supreme Court has had a major impact on the development of campaign finance law. Court decisions have barred most expenditure limits, upheld contribution restrictions and disclosure requirements, and limited the kinds of electoral ads that can be subject to regulation. In the McConnell decision in 2003 the Court demonstrated a greater openness to campaign finance regulation when it upheld McCain-Feingold’s soft money and issue advocacy restrictions. Since McConnell, however, the composition of the Court has changed, and in two decisions in the past two years, the new majority has been much more hostile to campaign finance limits. In particular, last year’s WRTL decision significantly eroded McConnell’s issue advocacy holding and opened the door to considerably more corporate and union spending in elections. Three new cases are currently moving through the judicial system, with one soon to be argued before the Supreme Court, a second pending there, and a third in the early stages of litigation. These cases have implications for contribution limits, public funding, and the fundraising restrictions and disclosure requirements that apply to independent committees. Their resolution will shape the effectiveness of current campaign law and signal the direction of the Roberts’ Court’s emerging campaign finance jurisprudence. ∗Richard Briffault is Joseph P. Chamberlain Professor of Legislation at Columbia Law School. For more than three decades, the Supreme Court has played a central role in shaping campaign finance. In the seminal Buckley v. Valeo decision, the Court held that campaign finance laws implicate the freedoms of speech and of association protected by the First Amendment. The Court determined that one regulatory technique – expenditure limitation -is unconstitutional, but it upheld others, including contribution limits, reporting and disclosure requirements, and the provision of public funds to candidates. The Court found that burdens on constitutional rights can be justified, by laws that are narrowly tailored to promote such important government interests as preventing corruption or the appearance of corruption and increasing voter information. But it also held that advancing political equality cannot justify limits on campaign spending. The Supreme Court’s doctrines on campaign finance are marked by difficult distinctions. Contributions to candidates have been held to raise the danger of corruption, but individuals and groups may spend without limit to support or oppose a candidate, provided they do so independently of that candidate. Candidates who accept public funds can be required to accept spending limits, but independent expenditures by individuals and organizations supporting or opposing publicly funded candidates cannot be limited. Party contributions to candidates, as well as expenditures coordinated with candidates, can be limited, but party expenditures independent of its candidates cannot—even though the concept of independent party expenditures would surprise most observers. Corporations and unions cannot be barred from spending their treasury funds in ballot proposition elections, but they can be prohibited from spending treasury money in candidate elections. However, ideological corporations that do not engage in commercial activities or take money from business corporations or unions may not be so limited. The Court’s decisions have constrained the scope of campaign finance regulation as well as the types of regulatory techniques. Many individuals, organizations, and groups engage in a broad range of political activities: electioneering, legislative and grass-roots lobbying, and public education programs. The Court has held that campaign finance restrictions can be applied only to electoral activities and not to other, non-electoral, political activities. As a result, campaign finance law requires a sharp distinction between elections and politics, though this elections/politics line remains elusive at best. In particular, the distinction drawn by the Court in Buckley has been criticized for failing to map effectively on to the real world of electoral politics, as well as for permitting a considerable amount of electoral activity to evade regulation. Buckley narrowed the federal disclosure requirement for non-party political committees to communications that expressly call for the election or defeat of clearly identified federal candidates. Ads that lacked the so-called “magic words” 1 424 U.S. 1 (1976). 1 Briffault: Decline and Fall? Published by The Berkeley Electronic Press, 2008 of “express advocacy” became known as “issue advocacy”—although they need not include the discussion of any issues—and were exempted from regulation. The Court subsequently extended the express advocacy/issue advocacy distinction to the ban on expenditures from corporate and union treasuries. As the rise of issue advocacy advertising demonstrated in the 1980s and 1990s, the express advocacy test enabled most political advertising by non-candidates and non-party groups to escape regulation. At the start of the current decade, the Court took a surprisingly and significantly pro-regulatory turn. In four cases in a row, the Court upheld campaign finance laws, including state laws tightening dollar limits on contributions and banning all contributions by corporations; federal limits on party coordinated expenditures; and most significantly, in McConnell v. FEC, in 2003, the soft money and issue-advocacy provisions (and many of the other components) of the Bipartisan Campaign Reform Act of 2002 (“BCRA”), generally known as the McCain-Feingold law. McConnell enabled these new restrictions to take effect in the 2004 election. With the appointment of Chief Justice Roberts in 2005 and, especially, the replacement of Justice O’Connor by Justice Alito in 2006, the Court has become more hostile to campaign finance regulation. In 2006, in Randall v. Sorrell, the Court tightened its review of contribution limits, striking down limits Vermont had imposed for state and local elections. In 2007 in Federal Election Commission v. Wisconsin Right to Life, Inc.(“WRTL”), the Court eviscerated restrictions on the use of corporate and union treasury funds to pay for electioneering expenditures, restrictions which it had only just sustained in McConnell. The tenor of the opinions of the newly emerging majority suggests that more dramatic changes to campaign finance doctrine may be coming. There are three potentially significant cases on campaign finance currently working their way through the judicial system—one set to be argued before the Supreme Court in late April, one pending before the Court as of mid-March, and one just beginning its journey through the federal courts. These cases deal with two provisions of BCRA and one federal measure that dates back to the Federal Election Campaign Act of 1974. These cases could provide the Court the opportunity to make further changes in the campaign finance system, with implications for contribution limits, public funding, and, especially, fundraising and disclosure by independent organizations. Decisions could come as early as the current election cycle, although some cases may not be resolved until much later. Depending on how these cases come out, campaign finance law could become even more complex, and Congress and state and local governments may become 2 126 S.Ct. 2479 (2006). 3 127 S.Ct. 2652 (2007). 2 The Forum Vol. 6 [2008], No. 1, Article 4 http://www.bepress.com/forum/vol6/iss1/art4 even more constrained in the goals they can pursue and the techniques they can adopt.

Journal Article
TL;DR: In this article, a critique of colorblind constitutionalism through an examination of the Court's race jurisprudence is presented, focusing on the fact that the Court has dramatically reinterpreted the Fourteenth Amendment and Justice O'Connor's decisions serve as pivotal points for this radical reinterpretation.
Abstract: My article is a forward-looking, historical piece that offers a critique of colorblind constitutionalism through an examination of the Court's race jurisprudence. Justice O'Connor's affirmative action decisions serve as a model for a critique of neutrality and inversion - the doctrinal technique of turning substantive concepts inside out in the name of neutrality only to preserve systemic oppression - the Court has dramatically reinterpreted the Fourteenth Amendment. Justice O'Connor's decisions serve as a pivotal point for this radical re-interpretation. What is striking about this shift is that Justice Thomas has become a leading race theorist on the Court - he turns history inside out so that a militant historical figure like Frederick Douglass becomes a proponent for colorblind constitutionalism. This article critiques this doctrinal development through an in depth analysis of the themes underlying Justice O'Connor's race jurisprudence and Justice Thomas's rhetorical use of historical revisionism. This article will serve as a conceptual link between the race jurisprudence of the Rehnquist Court and the emerging conservative race jurisprudence of the Roberts Court.

Posted Content
TL;DR: In this article, the authors assess the Court's practice of "under-the-table overruling" or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action.
Abstract: In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court's own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey's association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court's capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court's impartiality, although there is reason for doubt. But underruling frustrates the dispute-resolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult.

01 Jan 2008
TL;DR: The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983 as mentioned in this paper.
Abstract: The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, however, the Roberts Court granted a petition for writ of certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the case, but petitions for certiorari regularly arise in similar Medicaid enforcement cases. Thus, Gonzaga could be revisited in the context of enforcement of Medicaid statutory entitlements. Medicaid does not contain an enforcement mechanism, but the Supreme Court has facilitated enforcement of federal statutory rights against state officers through § 1983. However, this paper highlights recent events that increase the fragility of Medicaid. The first part of this paper explores the structure of Medicaid and key provisions of the Deficit Reduction Act of 2005 that could change Medicaid from a program of promised care and benefits into one of no enforceable


Posted Content
TL;DR: Schauer as mentioned in this paper argues that Schauer exaggerates the weakness of the norm of stare decisis in the Roberts Court's practices and that his call for a public debate on the merits of the rule can only weaken it.
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.

Journal Article
TL;DR: In this article, a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down is given, along with a discussion of the Roberts Court's recent decision in Gonzales v. Carhart and the subject of Justice Kennedy's views in particular on substantive due process.
Abstract: This Article begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Article goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Article concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.

Posted Content
TL;DR: More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the interpretation of the Equal Protection Clause to which it appealed.
Abstract: More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the meaning of the Equal Protection Clause to which it appealed. The first major decision of the Roberts Court, Parents Involved in Community Schools v. Seattle School Dist. No. 1, took a small step away from a constitutional vision that permits racial discrimination by the government whenever courts believe that the effects on society will be salutary.With respect to non-remedial affirmative discrimination, remarkably little has changed since the Bakke decision in 1978.At that time four members of the Court would have allowed the government virtually unfettered discretion to practice what they regarded as benign forms of racial discrimination. Three decades later, four members of the Court take essentially the same position, and will clearly not be deterred by any of the contrary precedents that have built up during that period.In 1978, four Justices read the Civil Rights Act of 1964 to forbid racial discrimination without regard to the motive for the challenged policy. Today, four members of the Court would give the Fourteenth Amendment (and perhaps also the Civil Rights Act) a roughly similar interpretation, though it is not clear how far they would go in challenging existing precedent.In 1978, Justice Powell's middle position was that racial discrimination practiced for judicially approved diversity purposes is permissible, but that care must be taken to limit its reach and obscure the identity of its victims. Today's swing Justice has expressly endorsed Powell's legal formula, although Kennedy's application of this approach seems less latitudinarian than the one suggested in Powell's Bakke opinion.How much longer will this equilibrium remain stable? We seem to be one vote away from significant progress toward a relatively robust enforcement of antidiscrimination principles. We are also but one vote away from the opposite approach, which would endorse virtually any kind of discriminatory laws that a court believes were "enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class." It is hard to believe that the Court won't shift in one direction or the other fairly soon. But one might have said the same thing in 1978.

Journal Article
TL;DR: In this article, the authors discuss three important ways in which precedent still matters in constitutional law in spite of some empirical data and normative critiques suggesting otherwise, and suggest a normative defense of precedent in response to the critique that precedent provides a weak if not illegitimate basis for the Court's constitutional decision making.
Abstract: In this Article, I discuss three important ways in which precedent still matters in constitutional law in spite of some empirical data and normative critiques suggesting otherwise. First, I describe how precedent shapes the Court's institutional practices and secures basic stability in constitutional adjudication. In fact, the Court not only leaves the overwhelming bulk of its prior decisions intact, but also steadfastly employs precedent as the most popular basis for its decisions and mode of argumentation. Second, I describe how the Justices have employed precedents in particular cases during the first two Terms of the Roberts Court. Although the Roberts Court has not yet formally overruled any constitutional precedents, its track record thus far demonstrates the extremely weak constraining force of particular decisions on the path of the Court's constitutional decision making. Third, I suggest a normative defense of precedent in response to the critique that precedent provides a weak if not illegitimate basis for the Court's constitutional decision making. Precedent provides an independent, neutral source on which Justices may constrain or avoid reliance on their personal or political preferences.

Journal Article
TL;DR: In the summer of 2007, the Supreme Court declared unconstitutional the Jefferson County Board of Education's race-based student assignment plan in Parents Involved in Community Schools v. Seattle School District No. 1.
Abstract: In the summer of 2007, the Supreme Court declared unconstitutional the Jefferson County1 Board of Education’s race-based studentassignment plan in Parents Involved in Community Schools v. Seattle School District No. 1.2 The decision was both long-awaited and controversial.3 Parents Involved marked the first time that the Roberts Court was given the opportunity to address the issue of race in public education. The Court’s invalidation of the Seattle and Louisville public school assignment plans demonstrated what some perceived to be the Court’s clear movement to the right, prompting Justice Breyer to declare from the bench, “It is not often in the law that so few have so quickly changed so much.”4 This Note explains what Parents Involved means for the future of race-based student assignment plans. Specifically, Parents Involved will be examined through the vantage point of the community of Louisville, whose leaders have attempted to rework the city’s


01 Jan 2008
TL;DR: For example, during their Senate confirmation hearings, John Roberts and Samuel Alito both vowed to be modest and restrained Supreme Court justices, and they would faithfully apply the Constitution and doggedly follow the rule of law rather than actively impose any particular political ideology as mentioned in this paper.
Abstract: During their Senate confirmation hearings, John Roberts and Samuel Alito both vowed to be modest and restrained Supreme Court justices. They would faithfully apply the Constitution and doggedly follow the rule of law, rather than actively impose any particular political ideology. In a widely reported proclamation, Roberts explained, “‘Judges are like umpires—umpires don’t make the rules; they apply them.’” Yet, after the Roberts Court’s first two terms, few observers doubt whether Roberts and Alito have turned the Court to the political right. Numerous articles have appeared in mass-media periodicals juxtaposing, on the one hand, Roberts’s and Alito’s declarations of apolitical fidelity to law and, on the other hand, their sharply conservative votes in case after case. Among other conservative decisions, the Roberts Court has upheld restrictions on abortion, limited employee rights to recover for pay discrimination, and chided school districts for considering students’ race as a means to integrate public schools. So, did Roberts and Alito lie during their confirmation hearings? Did they duplicitously proclaim dedication to the rule of law while secretly planning to implement their political agendas? While I disagree with the justices’ votes in practically every controversial case, Roberts and Alito most likely answered senators’ questions sincerely, and the justices have probably applied the rule of law in good faith during their initial terms. But, one might ask, how is this possible when they repeatedly vote for the conservative judicial outcome? Most simply, law and politics are not opposites. Roberts, Alito, and the other justices do not necessarily disregard the law merely because they vote to decide cases consistent with their respective political ideologies. As a general matter, Supreme Court justices can decide legal disputes in accordance with law while simultaneously following their political preferences.

01 Jan 2008
TL;DR: In this paper, the authors assess the Court's practice of "under-the-table overruling" or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action.
Abstract: In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court's own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey's association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court's capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court's impartiality, although there is reason for doubt. But underruling frustrates the dispute-resolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult.

Posted Content
TL;DR: In this paper, an extended essay plays off the Supreme Court's recent decision in Hein v Freedom From Religion Foundation, Inc, 127 S Ct 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause.
Abstract: This extended essay plays off the Supreme Court's recent decision in Hein v Freedom From Religion Foundation, Inc, 127 S Ct 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach the establishment clause and the judiciary's role in policing government support for religion The essay also demonstrates how what the Court terms a "generalized grievance" for which justiciability is denied unless Flast permits taxpayer standing, necessarily involves a claim where a structural clause of the Constitution is said to be violated rather than a rights-based claim The above issues are all the more interesting because so far Hein is the only church-state case to come before the Supreme Court since the two newest justices, Chief Justice Roberts and Justice Alito, were appointed

Journal Article
TL;DR: This article argued that the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause.
Abstract: Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would-by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly-through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy.

Posted Content
TL;DR: In the case of Shaw v. Reno, the United States Supreme Court imported the qualified colorblindness principle from its affirmative action cases, allowing white North Carolinians to challenge majority-black districts created under pressure from the U.S. Department of Justice.
Abstract: In Shaw v. Reno, the United States Supreme Court imported the qualified colorblindness principle from its affirmative action cases, allowing white North Carolinians to challenge majority-black districts created under pressure from the U.S. Department of Justice. This chapter in the forthcoming Race Law Stories volume tells the story behind the Shaw case. The chapter starts by reviewing the history of racial politics in North Carolina and other southern states, a critical part of Shaw's story, though one almost entirely omitted from the Supreme Court's opinion. Before enactment of the Voting Rights Act of 1965, blacks were largely prevented from voting or even registering throughout the South. Even after formal barriers to participation were eliminated in the 1960s and 1970s, relatively few African Americans were elected to Congress from southern states. That changed in the 1990s, partly due to the Justice Department's exercise of its preclearance power under Section 5 of the Voting Rights Act. The Justice Department's efforts to increase safe minority seats led to the litigation in North Carolina and, eventually, to the Shaw v. Reno opinion. Drawing on the papers of the late Justice Harry Blackmun, the chapter examines the Supreme Court's internal deliberations over the case, as well as the still-unresolved tension between race-blind and race-conscious redistricting evident in its final opinion. That opinion led some commentators and advocates to fear a reversal of the gains in minority representation that had been made through enforcement of the Voting Rights Act. But the story does not end there. North Carolina's 1990s redistricting plans resulted in three more trips to the Supreme Court and a voting rights jurisprudence that can best be described as muddled. The uncertain status of Shaw's legacy is compounded the changing composition of the Court, marked by the death of Chief Justice Rehnquist and the retirement of Justice O'Connor, the swing vote in the Shaw and key voting rights cases that followed. Thus, like so many stories in the area of race law, the story of Shaw v. Reno does not have an ending. If the Roberts Court is as ambivalent in its conception of meaningful representation as the Rehnquist Court, this story will remain incomplete - and Shaw's legacy will remain vigorously contested.

Posted Content
TL;DR: Chemerinsky as discussed by the authors concludes that the Roberts Court is the most conservative court since the mid-1930s, but this is a substantial overstatement, since the current roster of justices have sat together for less than three full terms and the small size of the docket means any single term provides an unrepresentative picture of the Court's jurisprudence.
Abstract: In The Roberts Court at Age Three, Dean Erwin Chemerinsky offers a preliminary assessment of the Roberts Court. Among other things, Dean Chemerinsky reviews the effect of the Court's shrunken docket and the role of Justice Anthony Kennedy as the Court's median justice. Reviewing the Court's decisions over the past three years, Dean Chemerinsky concludes that the Roberts Court is the the most conservative Court since the mid-1930s. This is a substantial overstatement. The Roberts Court appears moderately more conservative than its predecessors in some contexts, but is also quite liberal in others. Its decisions on enemy combatants, capital punishment, and standing, among other issues, could hardly be characterized as conservative, however this term is defined. Furthermore, any assessment of the Roberts Court at this point is necessarily tentative. The current roster of justices have sat together for less than three full terms, and the small size of the docket means any single term provides an unrepresentative picture of the Court's jurisprudence. While the Roberts Court may eventually show itself to be a conservative court, there is no basis at present to claim the Court is the most conservative in over seventy years.

Posted Content
TL;DR: The authors argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis, Transaction Cost Economics, and insights from comparative institutional analysis gleaned from New Institutional Economics, despite the rise of Post-Chicago Economics in economics departments and elite journals.
Abstract: The Roberts Court's reign at the United States Supreme Court is only in its nascent stages. Already, however, its antitrust activity level has far exceeded the Court's single case average prior to the 2003-04 Term by a significant margin. The recent flurry of antitrust activity and the likely significance the Roberts Court will have on the development of antitrust jurisprudence warrants some reflection and analysis. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis, Transaction Cost Economics, and insights from comparative institutional analysis gleaned from New Institutional Economics. Despite the rise of Post-Chicago Economics in economics departments and elite journals, the substance of the Roberts Court's antitrust jurisprudence suggests a significant amount of skepticism is appropriate concerning any prediction of the demise of the Chicago School or Transaction Cost Economics in antitrust in the coming years.