Showing papers on "Roberts Court published in 2010"

Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of a Right

Abstract: Throughout its history, the Supreme Court has assumed that dignity is relevant to constitutional interpretation, though it has rarely considered exactly how. In the post-war years, the Court (like its counterparts around the world) found that human dignity underlay many individual rights, and in the 1990s, the Court's federalism jurisprudence found that the dignity of states immunized them from most lawsuits in both state and federal courts. This article examines the Court's past references to dignity and argues that the conception of dignity that is evoked in the federalism cases - which focus, at root, on the autonomy of the states and their power of self-determination - helps to inform a constitutional conception of human dignity. Indeed, in cases from the Rehnquist years as well as in the Roberts Court, justices from both sides of the political and jurisprudential spectrum have acknowledged the importance of human dignity to constitutional interpretation. This article provides a theoretical framework for understand what the constitutionalization of human dignity might look like.

Corporate Prerogative, Race, and Identity under the Fourteenth Amendment

Abstract: Thesetwo cases quickly defined the relatively new Roberts Court as bothfriendly to the corporate world and quite hostile to civil rights for racialminorities. These two groups-while receiving starkly differenttreatment under the Roberts Court and previous Supreme Courts-havea shared constitutional pedigree in the Fourteenth Amendment that isoften ignored or minimized by legal scholars and historians. It is thisconnection-and its implications-that we seek to unfold in thisArticle, with the goal of renewing or creating a conversation aboutpower and personhood in American law.In this Article, we build on an observation made by Justice Hugo

Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis

Abstract: Empirical studies of the Supreme Court’s statutory interpretation cases are few and far between Those that do exist tend to focus on a sampling of cases over time, cases interpreting statutes in one area of the law, or on one specific aspect of the Court’s interpretive practice, such as its reliance on legislative history This Article takes a different approach, examining all of the Roberts Court’s statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired The Article’s approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court’s and individual Justices’ rates of reliance on fourteen different tools of statutory construction, as well as (2) engages in doctrinal analysis of the Court’s statutory cases, highlighting discernable patterns in the individual Justices’ interpretive approaches The Article makes two significant contributions to the field of statutory interpretation: First, it identifies an interpretive divide between the Justices on the Roberts Court over what I call “legal landscape coherence” versus “statute-specific coherence” In brief, the legal landscape coherence Justices focus on the legal framework surrounding the statute at issue and seek the interpretation that fits most coherently into the existing legal structure; while the statute-specific coherence Justices focus on the individual statute at issue and preference the interpretation that creates an internally consistent and coherent policy across like situations and across time The Article maps out the Justices’ theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices’ individual rates of reliance on particular interpretive canons and tools Second, prior empirical studies have shown that Supreme Court Justices frequently reference practical considerations when interpreting statutes This Article breaks new ground by uncovering an important difference in the form of practical considerations to which the different Justices tend to give weight, pointing out that the landscape coherence Justices tend to focus on the administrability of the interpretation - eg, its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices focus on the constancy of the policy effected by the interpretation - eg, whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation The Article concludes with three case studies illustrating how the Roberts Court’s interpretive divide operates in practice

The Roberts Court at Age Three

Abstract: On June 26, 2008, the Supreme Court completed the third term of the John Roberts era. This article develops four themes concerning where the Supreme Court is right now and where it is likely to be going. First, so far, the Roberts Court has been characterized by its dwindling docket. Second, although it is called the Roberts Court out of tradition and deference to the Chief, in actuality it is the Anthony Kennedy Court. When it matters most, Kennedy is virtually always the deciding vote in 5-4 decisions. Third, this is the most conservative Court since the mid-1930s and is a Court that generally favors the government over claims of individual rights and business interests over those of employees and consumers. Fourth, the 2008 election is likely to determine whether the Court becomes more conservative or stays ideologically the same. It is unlikely that the Court will become more liberal during the next presidency or even the next five to ten years.

The Future of the First Amendment

Abstract: It is such an honor and a pleasure to be here. Thank you so much for the kind introduction. The conference will focus on the future of the First Amendment. I was asked to begin by looking back just a bit to talk about the First Amendment in the first four years of the John Roberts Court. A week ago Monday, on October 5, 2009, the Supreme Court began the fifth year with John Roberts as Chief Justice. Actually, the term unofficially began on Wednesday, September 9, when the Justices came back from their summer recess early for arguments in the case of Citizens United v. Federal Election Commission, which will likely be the most important First Amendment case so far by the Roberts Court, and one sure to be discussed a lot here today. I think in order to discuss the First Amendment and the Roberts Court, we need to look more generally at the first few years of the Roberts Court, and we need to situate the First Amendment cases in this context. I want to make three quick overviews about the Roberts Court, where it is, and then apply these to some specific themes about the Roberts Court and the First Amendment. First, let me tell you a little about the Court by the numbers. Last year the Supreme Court decided 75 cases after briefing and oral arguments. It is a bit more from the 67 cases the year before, and a bit more than the 68 cases the year before that. To put this in a historical context, the Supreme Court for much of the 20th century was deciding over 200 cases a year. As recently as the 1980s, the Court was averaging about 160 cases a year. So in that sense, the 75, or 67 decisions of the last two years are dramatic downsizing in the docket. This is important as we look at the First Amendment. There have not been that many First

A Post-Race Equal Protection?

Abstract: Most vividly demonstrated in the 2008 election of the first African-American President of the United States, post-race is a term that has been widely used to characterize a belief in the declining significance of race in the United States. Post-racialists, then, believe that racial discrimination is rare and aberrant behavior as evidenced by America’s pronounced racial progress. One practical consequence of a commitment to post-racialism is the belief that governments - both state and federal - should not consider race in their decision making. One might imagine that the recent explosion in post-racial discourse also portends a revised understanding of equality, one that will result in a significant change in constitutional race jurisprudence. In this Essay, we first argue that this view ignores the history of the Court’s horribly-fraught race jurisprudence, portions of which have advanced post-race-like principles for nearly as long as the Justices have been considering the legal relevance of race. Efforts to minimize the importance race and deny racism, even as society clearly operated based upon a system of racial spoils, are seen in early cases such as the Civil Rights Cases and Plessy v. Ferguson. While Brown v. Board of Education represented an overdue reprieve from the Court ignoring the consequences of racial categorization, since at least Regents of the University of California v. Bakke, the Court has steadily predicated equal protection analysis upon a commitment to colorblindness. In the more recent cases of Parents Involved and Ricci v. DeStefano, which respectively dealt with school integration and workplace disparate impact claims, the Court has treated the state consideration of race as exceedingly dangerous. Within the equality jurisprudence of the Roberts Court, it appears that the embrace of a post-racial ethic is nearly a fait accompli. We question, however, the propriety of adopting a fully realized commitment to post-racialism within equal protection jurisprudence. In our analysis, we first use statistical and normative evidence related to the disparate life experiences of people of color within the U.S. to suggest that America is not, in fact, post-race. Given, however, the Court’s insistence on ignoring statistical disparities across racial groups as occurring “because of” race, we then offer that moving forward equal protection analysis may need to turn on questions of distributive justice.

Antitrust Formalism Is Dead! Long Live Antitrust Formalism! Some Implications of American Needle v. NFL

Abstract: Antitrust observers and football fans alike awaited the Supreme Court’s decision in American Needle v. National Football League for months – inspiring over a dozen articles, and even one from the quarterback of the defending champion New Orleans Saints. Yet the implications of the Court’s decision, effectively narrowing the scope of the “intra-enterprise immunity” doctrine to firms with a complete “unity of interests,” are unclear. While some depict the decision as a schism from the last several decades of antitrust law, we explain why this interpretation is meritless and discuss the practical impact of the Court’s holding. The Court’s antitrust jurisprudence over the past several decades, including that of the Roberts Court and American Needle, has broadly embraced rules that are both relatively easy to administer as well as conscious of the error costs of deterring pro-competitive conduct. Intra-enterprise immunity potentially provided such a “filter” that enabled judges to dismiss a non-trivial subset of meritless claims prior to costly discovery. The doctrine, however, proved notoriously difficult to consistently apply in situations involving common organizational structures. Consistent with error-cost principles that have been the lodestar of the Court’s recent antitrust output, American Needle gave the Court an opportunity to effectively abandon intra-enterprise immunity in favor of the Twombly “plausibility” standard. Rather than marking a drastic change in antitrust jurisprudence, therefore, American Needle should be viewed as the Supreme Court substituting an unreliable screening mechanism in favor of a more cost-effective alternative.

The Roberts Court and Police Practices: The Impact of Chief Justice Roberts and Justice Alito in Police Practices Cases

Abstract: In police practices cases, the Supreme Court decides issues that determine when the law enforcement interest in solving crimes must give way to the interest of individuals to be left alone by the government. The replacement of Chief Justice Rehnquist with John Roberts and Justice Sandra Day O’Connor with Samuel Alito has now been in place for more than four terms. The time is appropriate to assess the likely impact of these two new members of the Court on police practices cases. This article examines that question by analyzing both the police practices opinions written by Roberts and Alito while they served on U.S. Courts of Appeals and their opinions while on the Supreme Court through the 2008-09 term. The conclusion is that the previous pattern of the police prevailing in the vast majority of these cases is unlikely to change. In addition, there is some evidence to suggest that Chief Justice Roberts is aligning himself closely with Justice Scalia in these cases and may be setting the stage for a significant modification or even elimination of the exclusionary rule.

Children's Developmental Vulnerability & the Roberts Court's Child-Protective Jurisprudence: An Emerging Trend?

Abstract: The Roberts Court has issued three opinion to date to protect children from harmful media influences or unduly harsh criminal sentences based on their developmental instability and vulnerability. The social science data concerning children's developmental immaturity presents a compelling case for distinguishing between children and adults relative to First Amendment and Eighth Amendment issues, inter alia. Of particular interest is new MRI and fMRI studies that demonstrate that children - unlike adults - are at risk for altered brain activity arising from speech such as violent video games that can affect their beliefs and conduct long-term, and that cognitive damage can result without children's (or their parents') conscious awareness or informed consent. Is the Roberts Court embracing the social science data to usher in a new era of children's constitutional law? This essay briefly reviews the scientific data and the Court's opinions to date and suggests that the opinions may be tied together by the Court's commitment to protecting children based on the strength of the scientific evidence that they are indeed quite different than adults, warranting a different set of legal norms applicable to children.

Due Process in Civil Commitments

Abstract: One of the Roberts Court's most controversial cases, United States v. Comstock (2010), expanded the powers of mental health workers to indefinitely commit patients. The majority in that case found an intermediate level of judicial proof constitutionally sufficient to intern persons under the federal civil commitment statute. The law provides for the post-sentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The statute relies on a standard established by the Court more than thirty years before. The majority in Comstock missed the opportunity to reassess its earlier holding in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood to engage in dangerous activities. In this article, I contend that the “clear and convincing standard” of proof inadequately protects patients’ due process rights because civil commitment hearings can result in severe deprivations of liberty. The beyond a reasonable doubt standard of proof, more commonly associated with criminal cases, is in order because it requires a closer evaluation of the facts, law, and constitutional norms. The multidisciplinary approach I pursue offers a unique framework for resolving a social problem that has been inadequately described in extant legal and psychiatric writings. I reflect on Supreme Court precedents in light of psychiatric studies about the limited reliability of emergency commitments and set out a standard adopted from criminal proceedings to better prevent unnecessary mental hospitalization. Part 1 of the article sets out some of the core problems with the current standard for civil commitment. Part 2 surveys Supreme Court precedents on the topic. Part 3 discusses state statutory schemes for involuntary mental hospitalization, while Part 4 describes the current state of sexual violent predator statutes. Part 5 delves into professional psychiatric literature about the ambiguity of psychiatric diagnoses. Part 6 synthesizes the article’s findings to identify the appropriate burden of proof required to prevent the wrongful infringement on patients’ due process rights.

The Supreme Court's Love-Hate Relationship with Miranda

Abstract: In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it. Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, and Berghuis v. Thompkins. This Article examines each opinion through a pragmatic lens, with an eye towards ascertaining whether the Roberts Court remains committed to the pragmatic approach taken by its predecessors. While the government prevailed on every issue raised by the three cases, the opinions vary in their fidelity to pragmatic norms. The Article concludes that, even if Shatzer and Powell can be dismissed as effecting only incremental changes in the law – in the rules protecting those who invoke their Miranda rights, defining custody, and requiring that the warnings reasonably convey each of the rights Miranda guarantees – Thompkins cannot be defended on pragmatic grounds. In effect, the decision in Thompkins allows the police to begin interrogating a suspect immediately after reading the Miranda warnings, without first securing a waiver of the suspect’s Miranda rights, and then to use anything she says – even hours later – to demonstrate that she impliedly waived her rights. Thompkins thus essentially reduces Miranda to a mere formality, requiring that warnings be read and otherwise leaving criminal defendants with the same voluntariness due process test that Miranda was designed to replace. To the extent Thompkins signals a change in the Court’s attitude towards Miranda, it comes at a particularly critical time given reports that the Obama administration is considering proposing an exception to Miranda for terrorism suspects.

Winter v. NRDC : The Navy, Submarines, Active Sonar, and Whales—An Analysis of the Ninth Circuit Review and Roberts Court Extension of the Military Deference Doctrine

Abstract: The waters off the coast of California have long been a training ground for America's naval forces, including carrier strike groups training in preparation for overseas deployments.1 These waters, however, have become a battleground in a legal struggle between the U.S. Navy and environmental groups claiming the Navy's use of active sonar threatens marine mammals inhabiting the area. The struggle between the military and these environmental groups has continued for years. The latest case seeking to restrain the Navy from training with active sonar is _Natural Resources Defense Council, Inc. v. Winter_. The Natural Resources Defense Council (NRDC) contends the Navy failed to meet the requirements of the National Environmental Policy Act of 1969 (NEPA) prior to planning and commencing a series of training exercises over a two-year period. Both the U.S. District Court for the Central District of California and the U.S. Court of Appeals for the Ninth Circuit have considered the issues underlying this litigation. The district court issued a preliminary injunction constraining active sonar usage and applying court-ordered mitigation measures, two of which the Navy challenged. The Navy claimed the measures impinged on its ability to train and certify carrier strike groups for deployment, making them vulnerable to quiet diesel submarines operated by unfriendly nations. Although the Supreme Court decided the dispute in November 2008, this Note will primarily explore the reasoning and analysis of the Ninth Circuit. This Note argues that the plaintiffs failed to establish the irremediable harm necessary to justify a preliminary injunction against the Navy. Furthermore, it argues the Ninth Circuit failed to balance properly the equities of the two parties despite a congressional exemption that prioritized military readiness over marine mammals. This Note primarily contends that the circuit court should have applied the Supreme Court's long-standing military deference doctrine in balancing the competing interests. Part II of this Note will review the legal and factual backdrops leading up to the Supreme Court decision on this dispute. It will review the lower court decisions as well as the Supreme Court's majority, concurring, and dissenting opinions. Part III will review the requirements for a preliminary injunction and argue that the Ninth Circuit failed to properly assess and balance the harms. In doing so, this Note will explore the historical contours of the Supreme Court's military deference doctrine and argue that the failure to apply this doctrine resulted in the misbalancing of the equities. Furthermore, it will argue that the circuit court disregarded Congress's prioritization of military readiness over marine mammal protection. This Note will also examine whether a "legalized" harm, allowed by a statutory exemption, should be the basis for the environmental harm the NRDC alleged. Moreover, it will examine whether the NRDC asserted adequate factual bases to establish Article III standing. Finally, Part IV of this Note will outline the role of _Winter v. NRDC_ in the future of anti-sonar environmental litigation and its role as an extension of the military deference doctrine.

Still Other People's Money: Reconciling Citizens United with Abood and Beck

Abstract: Citizens United has already taken its place as a landmark decision of the 2009 Term of the Roberts Court. Its story is not complete, however: while it overturned Austin v. Michigan Chamber of Commerce and rejected the equalization of voice in politics as a valid justification for constraints on spending, it did not excise deeper concerns – both congressional and judicial – about the corrupting misuse of “other people’s money,” in Louis Brandeis’s memorable phrasing. A line of cases regarding the use of union dues for political purposes (primarily Communications Workers of America v. Beck and Abood v. Detroit Board of Education) and the legislative findings of the Tillman Act present a coherent description of political corruption that Citizens United left standing, but never seriously reckoned with. Given that these legislative and judicial convictions retain their vitality even after Citizens United, the Court must modify the Citizens United regime to accommodate this view of corruption. Permitting shareholders to opt their investments out of political use would be a sufficient protection for their right not to have their money used for political speech with which they disagree while protecting the corporation's right to political speech articulated in Citizens United.This article draws out the difficulty recognized in the union-dues cases – having one’s money used for political speech with which one disagrees – and applies it to the new Citizens United world. Because Citizens United presented a legal rule with little guidance as to implementation, this article opens a much-needed discourse on how to work with the new world that has taken hold in campaign finance.

Property and the Public Forum: An Essay on Christian Legal Society v. Martinez

Abstract: Christian Legal Society v. Martinez is situated at the intersection of various, and arguably conflicting, lines of doctrine. In ultimately holding that the Hastings College of Law could decline to recognize the student chapter of the Christian Legal Society due to the group’s refusal to accept members who did not conform their beliefs and conduct to the principles of CLS (particularly regarding homosexuality),the Supreme Court was required to sort through a tangle of precedents involving free speech limitations in nonpublic fora, religious groups’ rights of equal access to school facilities, and freedom of expressive association. Perhaps less obviously, however, CLS also stands in relation to Pleasant Grove City v. Summum and Salazar v. Buono, two other recent Roberts Court cases. In CLS, as in Summum and Buono, the Supreme Court turned to property - both as a metaphor and as a doctrinal tool - to resolve difficult and multifaceted constitutional questions. Although the relationship between First Amendment rights and property rights is a long-standing one, the Court seems to have turned to property with a renewed enthusiasm in these three recent cases. And although the property framework may appear to hold the promise of simplicity, neutrality, and avoidance of difficult policy questions, this brief essay, prepared for a special online symposium issue of the Duke Journal of Constitutional Law and Public Policy, argues that it fails to deliver on those promises. Instead, property analysis obscures the complex First Amendment issues behind seemingly easy categorical judgments and grants the government virtually unlimited power to exclude undesired speakers and groups. Notwithstanding the Court’s approach, the crux of the issue is, and has always been, when First Amendment values should overcome the forum owner’s right to exclude. That is a question the Court seems increasingly loath to resolve.

The Frontier of Affirmative Action: Employment Preferences and Diversity in the Private Workplace

Abstract: The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backwardlooking to forward-looking. The Remedial Rationale – justifying preferences based on past wrongs – is fading into history and the Diversity Spotlight Rationale – justifying preferences to attain diversity solely for the sake of diversity – is emerging as the new frontier. In the private workplace arena, prominent businesses now claim an interest in fostering diversity within their ranks to better compete, market and think in an ever-globalizing economy. Diversity Spotlight Rationale-based arguments such as these butt heads with the express language and anti-discriminatory thrust of Title VII but might be in line with decades-old Supreme Court opinions. This article analyzes the history and precedent surrounding race-based preferences in the public sector, public employment and private employment arenas. It then delves into the foundation of the Diversity Spotlight Rationale and proposes three key components that any preference plan promulgated under the DSR must contain to have a chance before the current Supreme Court. Finally, this paper predicts that the Roberts Court – even with the confirmation of Sonia Sotomayer – will side with a strict statutory interpretation of Title VII and strike down a voluntary, forwardlooking, diversity-based workplace affirmative action plan. This prediction is based on Justice Kennedy’s general anti-affirmative action stance, a conservative-learning Court and the written positions staked out by Justices Thomas, Scalia, Alito, Roberts and Kennedy. THE FRONTIER OF AFFIRMATIVE ACTION: EMPLOYMENT PREFERENCES & DIVERSITY IN THE PRIVATE

State Sovereign Immunity and the Roberts Court

Abstract: Despite the centrality of the Eleventh Amendment and state sovereign immunity to the federalism jurisprudence of the Rehnquist Court, that topic has remained mostly in the shadows of the Roberts Court's first five Terms. Other than an entirely uncontroversial 2006 decision holding that counties were not protected by the Eleventh Amendment, and the Chief Justice’s own dissent in a 2010 original jurisdiction dispute where the majority sidestepped the issue, the five years since Justice Alito ascended to the bench have seen remarkably little opportunity for reconsideration of the Rehnquist Court’s approach to state sovereign immunity, even as other federalism-laden topics – e.g., the Commerce Clause, Section Five, and the scope of post-conviction habeas corpus – have routinely come before the Justices.As I explain in this essay for the Charleston Law Review’s Supreme Court Preview, that trend is likely to change during the coming Term, with two cases already on the docket that at least indirectly implicate the scope and implications of the Rehnquist Court’s approach to state sovereign immunity. In the first case, Virginia Office for Protection and Advocacy v. Reinhard, the Fourth Circuit held, for the first time, that state-created agencies may not invoke the doctrine of Ex parte Young as a means of avoiding the Eleventh Amendment in suits for injunctive relief against state officers. In the Fourth Circuit’s view, “federal court adjudication of an ‘intramural contest’ between a state agency and state officials encroaches more severely on the dignity and sovereignty of the states than an Ex parte Young action brought by a private plaintiff."In the second case, Sossamon v. Texas, the Fifth Circuit waded into a circuit split as to whether states knowingly waive their sovereign immunity when they accept federal funds under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), given that § 4(a) of the Act creates a cause of action for “appropriate relief” against “a government” for violations of the Act. The Fifth Circuit reasoned that “RLUIPA is clear enough to create a right for damages on the cause-of-action analysis, but not clear enough to do so in a manner that abrogates state sovereign immunity from suits for monetary relief.”Whatever might be said about the merits of either decision, it seems clear that both present questions as to the appropriate scope of state sovereign immunity on a scale heretofore unseen in the jurisprudence of the Roberts Court. And although this preview essay does not attempt to predict what will happen in either Stewart or Sossamon, it does aim to situate these two cases in their broader context – to explain both why they are such important bellwethers for the Roberts Court, and to suggest what, if anything, we might learn from their resolution. Ultimately, how the Court handles these two cases may provide crucial insight into whether the current Justices will embrace the approach of their predecessors and thereby follow the same ideological chasm that pervaded the Rehnquist Court’s state sovereign immunity jurisprudence, or whether something might change.

Citizens United, Stevens and Humanitarian Law Project: First Amendment Rules and Standards in Three Acts

Abstract: This essay, written for a symposium on the Roberts Court's five-term anniversary, considers three First Amendment cases from the most recent Supreme Court term: Citizens United v. Federal Election Commission, United States v. Stevens, and Holder v. Humanitarian Law Project (HLP). In these cases the Court first applied and then (in HLP) retreated from strict doctrinal rules and refusals to defer to congressional and executive determinations relevant to the First Amendment issue. This essay uses the occasion of the Roberts Court's anniversary and Justice Stevens' retirement to take a fresh look to the old question of whether rigid doctrinal rules or context-rich principles are most appropriate in constitutional jurisprudence. In particular, it considers whether rigid rules truly succeed in cabining judicial temptation to uphold speech restrictions when those restrictions respond to serious, legitimate concerns or popular calls for restricting speech.

A Radically Immodest Judicial Modesty: The End of Facial Challenges to Abortion Regulations and the Future of the Health Exception in the Roberts Era

Abstract: If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. And indeed, some commentators have suggested that there are signs of newfound judicial restraint in the Roberts Court. One example of this purported restraint is the Roberts Court’s expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face. The Roberts Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number of cases. Examples range across a wide spectrum of subject matter, including voting rights cases, an Americans with Disabilities Act case, First Amendment cases, and abortion cases.In this contribution to a symposium on “Access to Courts in the Roberts Era,” I focus specifically on the Roberts Court’s decisions in Gonzales v. Carhart and its predecessor Ayotte v. Planned Parenthood of Northern New England in order to consider the meaning and impact of the Roberts Court’s preference for as-applied adjudication in one specific area - abortion jurisprudence. Moreover, I evaluate the likely impact of these rulings in light of Chief Justice Roberts’s expressed preference for judicially modest rulings.I argue that Ayotte and Gonzales, which on their surface appear to indicate a preference for modest, narrow rulings, are anything but modest in their implications. These decisions call for federal judges to re-write legislation and to make judgments in areas in which they have little expertise. They thus assure continuing federal court involvement in micro-legislating the scope of abortion rights. In addition, the holdings in Gonzales and Ayotte, which ostensibly turn on the appropriateness of facial challenges, are really about re-shaping the underlying substantive constitutional law pertaining to abortion rights. As such, they represent an instance of the remedial tail wagging the substantive dog - a case of the proper remedy, as determined by the Supreme Court, shaping the underlying right. In this sense, these cases form a stark contrast with prior judicial practice, in which the availability of facial invalidation depended at least in part on the nature of the underlying substantive constitutional doctrine, rather than vice versa. I thus explain why the Roberts Court’s stated preference for as-applied challenges, at least as it has been presented in the abortion cases, does not serve the end of judicial modesty.