Showing papers on "Roberts Court published in 2012"

Democracy and Disdain

Abstract: THE SUPREME COURT 2011 TERM FOREWORD: DEMOCRACY AND DISDAIN Pamela S Karlan CONTENTS I THE VERY WORLD OF ALL OF US: THE REVOLUTION OF THE WARREN COURT ADemocracy and the Electoral Process BTrusting Congress CThe Democratization of Constitutional Enforcement II AS ON A DARKLING PLAIN: THE COUNTERREVOLUTION OF THE ROBERTS COURT AProtecting Spenders and Suspecting Voters: The Roberts Court and the Political Process B Suspecting Congress CUndermining Enforcement III SHINE, PERISHING REPUBLIC Sometimes the Justices seem barely able to hide their disdain for the other branches of government Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No One v Holder Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965--the "crown jewel" of the Second Reconstruction--as a reason not for deference, but for suspicion: JUSTICE SCALIA: What was the vote on this 2006 extension --98 to nothing in the Senate, and what was it in the House? Was -- MR ADEGBILE: It was--it was 33 to 390, I believe JUSTICE SCALIA: 33 to 390 You know, the--the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there (1) In this Term's argument in Arizona v United States, (2) an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B Verrilli Jr before Verrilli was able to utter a complete sentence (3) And during argument in National Federation of Independent Business v Sebelius (4) (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court's existing cases "have allowed," the presumption of constitutionality disappears, to be replaced by "a heavy burden of justification to show authorization under the Constitution" (5) The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that "It ain't nothin' till I call it" (6) It was not always so The opening day of the marathon oral argument in the Affordable Care Act (7) cases--surely the defining decision for the Roberts Court so far--happened to be the fiftieth anniversary of what Chief Justice Warren called "the most important case" of his "tenure on the Court" (8): Baker v Carr (9) Why Baker, and not Brown v Board of Education (10) or Miranda (11) or Gideon (12) or New York Times Co v Sullivan? (13) Well, because Baker set in motion the reapportionment revolution--a centerpiece of the Warren Court's "participation-oriented, representation-reinforcing approach to judicial review" (14) The animating impulse behind many of the Warren Court's major decisions was a commitment to civic inclusion and democratic decisionmaking This impulse is captured not only by the Reapportionment Cases themselves, where the Court focused on equality in voting and problems of minority entrenchment, (15) but also by the way the Court tied public education to civic participation in Brown (16)and treated the landmark legislation of the Second Reconstruction as an important tool in realizing constitutional values (17) The Warren Court understood the problems and the promises of politics from its own experience The Court numbered among its members former senators, representatives, and state legislators, a former governor and a former mayor, and former cabinet members (18) Earl Warren himself was a politician of a kind we can scarcely imagine today Elected Governor of California as a Republican in 1942, (19) he proposed that California become the first state "to create and support a system of compulsory health insurance" (20) Although the proposal was defeated by one vote in the Assembly, (21) his health care agenda, among other things, garnered Warren such widespread admiration that when he ran for reelection in 1946, he won both the Republican and Democratic primaries …

The Language of the Roberts Court

Abstract: It is widely recognized that it is the language of the Supreme Court’s opinion, not the outcome, that is legally most salient. Yet the language of opinions has seen little research. Linguistic analysis programs are now commonly used in other disciplines to compare language choices. We apply the leading program to evaluate Roberts Court opinions. We find significant differences, depending on whether the opinion is for the majority or separate, revealing the significance of compromise at the Court. In addition, we find some differences in language content, depending upon who authored the opinion.

Preserving Political Speech from Ourselves and Others

Abstract: This Essay is a case study of how and why strict scrutiny varies between cases decided within a particular doctrinal category (political speech) by a given court (the Roberts Court). Two lines of Roberts Court jurisprudence implicate political speech: federal campaign finance cases and a challenge to the federal statute criminalizing “material support” to designated foreign terrorist organizations. My aim here is to examine the common doctrinal matrix of First Amendment strict scrutiny used in those cases to explore how divergent results emerge from a unified analytic framework. A secondary goal is to illustrate how post-9/11 national security concerns find expression inside familiar and seemingly durable doctrinal frameworks.

'The Ordinary Diet of the Law': The Presumption Against Preemption in the Roberts Court

Abstract: In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. I argue that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important federalism cases involve efforts to determine the preemptive scope of federal legislation. The key doctrinal tool in preemption cases is the “presumption against preemption” — a canon of statutory construction recognized by the Court in the 1947 case of Rice v. Santa Fe Elevator Corp. The Rice presumption is under nearly constant siege today from both litigants and commentators. This article explores the Roberts Court’s use (and non-use) of the presumption and defends the presumption against its academic critics. In particular, I address Caleb Nelson’s important argument that Rice’s presumption is inconsistent with the original meaning of the Supremacy Clause, concluding that Professor Nelson’s historical argument does not rule out the presumption as it is presently applied. Even if the original history did disfavor the presumption, Rice is a necessary doctrinal innovation that balances other developments in federalism doctrine, such as the contemporary Court’s unwillingness to enforce a robust enumerated powers doctrine. Nelson’s argument has a second aspect, however, which would considerably raise the bar for conflict preemption. In a series of separate opinions, Justice Thomas has adopted this approach and rejected the contemporary notion of “purposes and objects” preemption. I argue that this approach can and should coexist with Rice’s presumption against preemption in express preemption cases, and that in any event one cannot consistently cite Nelson’s historical argument to reject Rice and, at the same time, maintain broad notions of implied preemption. The article concludes with a discussion of the politics of preemption cases, which frequently find conservative and liberal justices reversing their usual stances on federalism. Although a number of factors contribute to this ironic reversal, the fact that federal preemption is generally de-regulatory in its effect. I suggest that a libertarian theory of federalism favoring widespread preemption is shortsighted, because robust state institutions remain necessary to our system of vertical checks and balances.

An Empirical Study of Supreme Court Justice Pre-Appointment Experience

Abstract: This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this is insalubrious.The first proposition is an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical peers, the study gathered a massive database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are startling and telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. The article argues that the change is regretful for multiple normative reasons, including the way these experiences lead to legal complexity in Court decisions, the lack of litigation or trial experience on the Court, and the lack of what virtue ethics calls “practical wisdom.”

Are Even Unanimous Decisions in the United States Supreme Court Ideological

Abstract: -The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological-legalistic judicial institution. The Supreme Court is widely regarded, and not only by political scientists, as a highly political Court, an impression often reinforced by the ferocious dissents of one or more Justices in many cases. This makes the Court's unanimous decisions an important subject for study-for how is unanimity achieved in a political court?-and it is a subject that has been neglected.1 This Essay seeks to advance understanding of the phenomenon of Supreme Court unanimity. Despite the title of the Symposium, this is not an essay about Justice Stevens as such, but it is not irrelevant to his service on the Court. He was noted for frequent dissents.2 Of the Justices who served in the 2005 through 2009 Terms3 (the years of the Roberts Court before Justice Stevens retired), he had the highest dissent rate-30.3% of the 320 cases in which he participated (Justice Souter was second, at 27.2%-69/254).4 Yet he voted more often to join a unanimous decision than he voted to dissent-39.1% of the votes he cast were in unanimous decisions (125/320). Whether this should be thought paradoxical is one of the questions we try to answer in this Essay. The Supreme Court Database (also known as the Spaeth Database) contains data on cases decided since the 1946 Term (the last Term we study is the 2009 Term). We define unanimous decisions as ones in which no Justice dissented, even if there were also one or more concurring opinions. Concurring opinions are actually more common in unanimous decisions than in non-unanimous ones-41% of the unanimous decisions in The Supreme Court Database include concurring opinions, compared to 38% for non-unanimous decisions-although the reason may be arithmetical: in a 5- 4 decision, the maximum number of concurring opinions is four; in a 9-0 decision it is eight. An alternative definition of a unanimous decision- which would be more realistic in recognizing that concurring opinions often indicate disagreement with, rather than merely supplementation or extension of, the majority opinion-would be a decision in which all the Justices joined the majority opinion, whether or not any of them also wrote a concurring opinion. We have not broken down the data sufficiently to enable us to analyze unanimous decisions so defined. Except in the 1969 Term, in which there were only eight Justices, we exclude unanimous cases in which one or more Justice was absent; the reason is that we cannot be certain that if a ninth Justice had sat, the case would still have been decided unanimously. Under our definition, about 30% of the Court's orally argued decisions from 1946-2009 were decided unanimously. Figure 1 shows that the percentage has been trending upward: from 21% in 1946-1952 (the Vinson Court) to 34% since 2005 (the Roberts Court). The graph shows that part of the upward trend is the result of an increasing fraction of unanimous decisions reversing the Ninth Circuit.5 Over the entire period, about 73% of Ninth Circuit decisions that the Supreme Court reviewed were reversed unanimously, compared to 63% for the other circuits. If we exclude them, the upward trend falls from 1.35% to 1.07% per year.6 Even if the decisions reversing the Ninth Circuit are included, there is no significant positive trend over the last twenty-five years (since Rehnquist's first Term as Chief Justice). The percentage peaked in 1997 at 51.1% (40.2% if excluding Ninth Circuit reversals) and has since declined to 37%. …

Is the Roberts Court Especially Activist? A Study of Invalidating (and Upholding) Federal, State, and Local Laws

Abstract: INTRODUCTIONIs the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional1 and confine the analysis to the 1969-2009 Terms,2 the answer is no. The Roberts Justices, just as their immediate predecessors, are neither uniform activists nor committed restraintists. Rather, the Justices' votes to strike (and uphold) statutes seem to reflect their political preferences toward the policy content of the law, and not an underlying preference for restraint (or activism).In a nutshell, liberal Justices tend to invalidate conservative laws and conservative Justices, liberal laws. This holds regardless of whether we examine all the Justices' votes simultaneously3 or each Justice individually.4I. SIMPLE APPROACHES TO ANALYZING JUDICIAL SELF-RESTRAINT AND ACTIVISMWe are not the first to examine judicial self-restraint from an empirical perspective. To the contrary. More than a handful of law professors and social scientists have written ambitious papers using large-N datasets and sophisticated statistical methods.5 Curiously, though, far simpler analyses tend to dominate contemporary debates6-with Figure 1 providing an example.The idea behind Figure 1 (and similar data displays) is that we can learn about the Justices' commitment to judicial self-restraint by studying the fraction of cases in which they vote with the majority when the Court invalidates legislative action.8 The lower the fraction, the more restrained the Justice (or so the argument goes). Using this strategy, we would conclude that the Justices located at the top of Figure 1 exercise greater restraint than the Justices at the bottom. Some commentators might even draw the inference that liberals (e.g., Brennan and Marshall) are the more aggressive and conservatives (e.g., Alito and Rehnquist) the meeker.9As political scientists have pointed out, however, these conclusions would be premature because Figure 1 is flawed in at least two ways. First, it conveys whether a Justice is in the majority when the Court reviews the constitutionality of a law and invalidates it-not when the Court upholds it.10 Besides wasting information (we can learn as much about judicial self-restraint from all the cases and not just invalidations), examining only "strike" cases can lead to misleading inferences.11 Imagine a Justice who almost always votes with the majority when the Court strikes a law (e.g., Justice Marshall in Figure 1). We might conclude that he is an activist. But now suppose the Justice almost always votes with the majority when the Court upholds a law. Would we still deem him an "activist"? Probably not.We could supply many more examples, but the larger point is that we should consider the fraction of votes to strike in all cases reviewing the constitutionality of laws. This would go some distance toward distinguishing between truly aggressive justices-those willing to strike regardless of whether the Court does-and those who are meeker, voting with the majority regardless of whether the majority strikes or upholds.12Analyzing all constitutional review cases would help correct one of Figure 1's flaws. But not the second, which traces to a failure to consider explanations other than a Justice's taste for judicial self-restraint.13 That is, even if we observe some Justices regularly voting to strike and others to uphold across all cases, we would not want to make claims about their relative commitment to judicial self-restraint without examining other possible reasons for the pattern.Of the many possibilities,14 the Justices' political preferences over the substantive policy embedded in the law has received considerable attention in the literature on judicial behavior. The idea is that left-leaning Justices tend to invalidate "conservative" laws. Vice versa for right-leaning Justices. …

Twombly and Iqbal Reconsidered

Abstract: In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court reinterpreted the Federal Rules of Civil Procedure to permit judges to dismiss claims at the very outset of a case whenever they think the claims are implausible. The decisions have been extremely controversial, and they are already on track to become the most cited Supreme Court decisions of all time. Critics contend that the decisions are prime examples of the “conservative judicial activism” widely attributed to the Roberts Court. In particular, critics contend that the decisions circumvented the usual process for promulgating amendments to the Federal Rules in order to revolutionize federal adjudication for the benefit of corporate defendants. Although I agree with some of this criticism, I think some of it is overstated. As I explain in this essay, these decisions are, at best, only weak examples of activism. Moreover, the decisions are unlikely to cause any revolution in pleading standards because this revolution was fought and won in the lower courts long ago. Finally, even if the methods were not pure, the motives behind the revolution have been: the balance of power between plaintiffs and corporate defendants needed to be recast in light of the exponential increase in the nuisance value of discovery — especially e-discovery — that has arisen since the Federal Rules were written in 1938. I conclude, however, that elevated pleading standards may not be the best mechanism to rebalance power, and that fee-shifting rules ought to be considered instead.

To Defer or Not to Defer? Deference and Its Differential Impact on First Amendment Rights in the Roberts Court

Abstract: This Article examines the concept of deference as it affects First Amendment speech rights under the Roberts Court. Using six recent decisions as analytical springboards, including high-profile disputes in Brown v. Entertainment Merchants Ass’n and Citizens United v. FEC, the Article illustrates that deference often determines a case’s outcome. The Article also demonstrates profound disagreements among the Justices on the use of deference in all six cases. Thus, like a spigot, deference is turned on and off by individual Justices, and even when turned on, it can flow freely or be reduced to a trickle. It is precisely such malleability that makes deference a critical concept on today’s Court when speech rights hang in the balance. Deference, the Article argues, muddies judicial analysis because it is a judicial wildcard that Justices can play—regardless of whether they purport to apply strict scrutiny, intermediate scrutiny, or rational basis review—to help sustain a law’s constitutionality and, in the process, sacrifice free speech.

Not a Free Speech Court

Abstract: Two of the most high-profile decisions in the Supreme Court's October 2010 term were clear victories for freedom of speech. In Snyder v. Phelps, the Court considered whether the First Amendment protects the right of protestors to go to military funerals to express anti-gay messages.' Matthew Snyder was a Marine who died in military service in Iraq. The members of the Westboro Baptist Church went to his funeral and, as is their practice, held up signs that condemned homosexuality and tolerance for it. Snyder's father sued the demonstrators for intentional infliction of emotional distress and intrusion upon seclusion. A jury in federal district court ruled in favor of Snyder and the judge upheld an award of both compensatory and punitive damages.The Supreme Court, in an 8-1 decision, concluded that the imposition of liability for such speech violates the First Amendment. Chief Justice Roberts, writing for the Court, stressed that the speech lawfully occurred on public property, did not disrupt the funeral, and involved a matter of public concern. The Court explained that there are alternatives available to state and local governments to protect privacy and sensibility at funerals, such as creating buffer zones around them,' similar to what the Court has permitted around reproductive health care facilities. The case is important because the Court reaffirmed one of the most basic principles of the First Amendment: speech cannot be punished, or speakers held liable, just because the speech is offensive, even deeply offensive. In Brown v. Entertainment Merchants Ass'n, the Court, in a 7-2 decision, struck down a California law that made it a crime to sell or rent violent video games to minors under age 18 without parental consent. Justice Scalia, writing for the Court, held that the law is an impermissible content-based restriction on speech and that the government failed to prove that the law was necessary to achieve a compelling purpose." In perhaps the strongest language to date, the Court spoke of the First Amendment rights of minors and once more refused to recognize violent speech as categorically less protected by the First Amendment. The Court made it clear that such attempts by states to restrict the sale or rental of violent video games violate the First Amendment.' Based on these cases, it is tempting to generalize that the Roberts Court is strongly protective of speech. In fact, I recently heard Baylor University President Ken Starr proclaim that this is the most free speech Court in American history. As is often the case with generalizations from a small sample, this one is inaccurate and hides the reality: the Roberts Court frequently rules against free speech claims.Part I of this Lecture looks at the Roberts Court's dismal record of protecting free speech in cases involving challenges to the institutional authority of the government when it is regulating the speech of its employees, its students, and its prisoners, and when it is claiming national security justifications. Part II examines a troubling new exception to the First Amendment that the Roberts Court has created for government speech-that the government can adopt private speech as its own and, accordingly, avoid the First Amendment. Part III analyzes the Roberts Court's aggressive decisions protecting campaign contribution speech. A careful examination of these cases reflects the conservative majority's hostility to campaign finance regulations, rather than a pro-speech commitment. I am certainly not denying that the Roberts Court sometimes rules in favor of free speech claims, as it did in Snyder v. Phelps and Brown v. Entertainment Merchants Ass'n. Rather, my claim is that the Roberts Court's overall record suggests that it is not a free speech Court at all.

Exceptional Freedom - the Roberts Court, the First Amendment, and the New Absolutism

Abstract: This chart, incomplete as it is, (223) does tell us something important, namely, that while Justice Kennedy, Chief Justice Roberts, and Justices Scalia and Sotomayor are most likely to lean towards a kind of near-absolutism, Justices Breyer and Alito are just as likely to move in the opposite direction. (224) Notice, too, how uncertain votes from Justices Thomas and Kagan's to affirm a First Amendment free speech claim can be. With this in mind, simply consider how conceptually divergent were the approaches outlined by Justice Kennedy in his plurality, Justice Breyer in his concurrence, and Justice Alito in his dissent. Let us begin with how Justice Kennedy viewed the matter: The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, but rather has applied the "most exacting scrutiny." Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. (225) This approach smacks of the new absolutism, of the near absolute protection of free speech in certain cases. Contrast that with the approach urged by Justice Breyer: I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. Sometimes the Court has referred to this approach as "intermediate scrutiny," sometimes as "proportionality" review, sometimes as an examination of "fit," and sometimes it has avoided the application of any label at all. (226) At a certain level of generality, what we see here is reminiscent of the kind of First Amendment balancing once championed by Justices Frankfurter and Harlan (227) and contested by Justices Black and Douglas. (228) Finally, we come to Justice Alito, the Roberts Court's most consistent critic of expanding First Amendment free speech rights. With Chaplinsky-like fervor, Justice Alito (229) drew on precedents that referred to both prongs of Chaplinsky's dictum. To make the point, I have taken the liberty of quoting a wider swath of his opinion: "Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value." (230) What is, I think, significant about Justice Alito's line of string citations and quotations is that many of the very cases he cited discounted the Chaplinsky categorical dictum and allowed for a degree of First Amendment protection. (231) In fairness, Justice Alito might reply that there was a certain subset of false-speech cases that were categorically unprotected. But even on that score, and as evidenced by the bold plurality opinion and the timid concurring opinion, a majority of the Roberts Court would not yield. Still, while the plurality opinion took yet another conceptual swipe at the Chaplinsky dictum, it nonetheless did something noteworthy--something that might be seen as adding a dollop of vigor to that infamous dictum. Unlike the five exceptions identified in Chaplinsky (lewd, obscene, profane, and defamatory speech along with fighting words), (232) or the five flagged in Stevens (obscenity, defamation, fraud, incitement and speech integral to criminal conduct), (233) or the three cited in Brown (obscenity, incitement, and fighting words), (234) Justice Kennedy's plurality opinion listed the following nine categories of unprotected expression, which he conceded were not all inclusive: (1) incitement (2) obscenity (3) certain kinds of defamation (4) speech integral to criminal conduct (5) fighting words (6) child pornography (7) fraud (8) true threats, and (9) "speech presenting some grave and imminent threat the government has the power to prevent. …

The End of the Federalism Five? Statutory Interpretation and the Roberts Court

Abstract: The replacement of Chief Justice Rehnquist and Justice O’Connor with John Roberts and Samuel Alito led to much uncertainty about the future of federalism jurisprudence. Six terms in to the Roberts Court, clear patterns of difference from the Rehnquist Court are emerging. My analysis of all federalism decisions by the high court since John Roberts was sworn in as chief justice in 2005 demonstrates that the Federalism Five bloc of justices is no longer the dominant paradigm for understanding responses to federalism cases. The emphasis on preemption cases and the increased role of statutory rather than constitutional interpretation have led to shifting coalitions and a different course for federalism cases on the Roberts Court, although there are legitimate questions about whether this will continue.

Cooperative Federalism, the New Formalism, and the Separation of Powers Revisited: Free Enterprise Fund and the Problem of Presidential Oversight of State-Government Officers Enforcing Federal Law

Abstract: Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court's separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court's contemporary separation-of-powers jurisprudence — with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist vision for separation-of-powers doctrine. Even so, if the Roberts Court’s decisions mean what they appear to say, serious constitutional questions exist about the constitutional validity of cooperative federalism programs in which states have primary responsibility for the administration of important federal labor, environmental, and healthcare programs. Simply put, the new formalism renders such programs open to serious constitutional attack on separation-of-powers grounds because the president arguably lacks sufficient direct oversight and control of the state-government officers who administer and enforce federal law on a day-to-day basis. But the Supreme Court need not follow the logic of its more recent separation-of-powers decisions to this ultimate conclusion; plausible arguments exist to support the claim that cooperative-federalism programs do not violate separation-of-powers doctrine even under a demanding formalist analysis. Until the full implications of the Roberts Court’s embrace of the new formalism are known, legal scholars, federal judges, and administrative-law practitioners should consider carefully whether cooperative-federalism programs can successfully be reconciled with the imperatives of the unitary executive and its requirement of direct presidential control and oversight of the administration of federal law.

The U.S. Supreme Court and New Federalism: From the Rehnquist to the Roberts Court

Abstract: 1. "A Notably Conservative Court?" Plan of Book 2. Federalism Politics & Policies: Old, New, and Progressive Trends Federalism at the Founding The Evolution of Federalism Jurisprudence The Founding and Nascent Nationalism The Civil War, Dual Federalism and the Rise of Economic Nationalism The Rise of the Democratic Welfare State Through Cooperative Federalism The Judicial Role in New Federalism Politics 3. The Rehnquist Court, New Federalism, and States' Rights The Politics of New Federalism Rehnquist New Federalism Revolutionary and Counter-Revolutionary Trends Dormant Commerce Clause Process Federalism and Clear Statement Rules New Federalism and the Constitutional Culture 4. Federalism, Justice Clarence Thomas, and Religious Freedom in the States The Rehnquist Court and Religious Liberty Justice Clarence Thomas and Establishment Clause Federalism Historical Roots and Contemporary Approaches to Establishment Clause Federalism Assessing Establishment Clause Federalism The Constituencies of Establishment Clause Federalism Congress and the Executive Recent Developments in Federal Law The Executive Branch State and Local Governments Interest Groups Churches Public Opinion and American Religious Life Religious Liberty, Federalism, and the Roberts Court 5. Federalism and Globalization Federalism, the Constitution, and Foreign Policy Preemption Structural Shift from Above Structural Change from Below The U.S. Supreme Court Response The Sidelined Court The Confined Court Flexible, Pragmatic Foreign Policy Preemption Divided Court? Conclusion 6. The Roberts Court and New Federalism Federalism and the New Roberts Court Appointments New Directions of Federalism in the Roberts Court Statutory Construction Cases: Preemption Constitutional Cases: The Eleventh Amendment and Commerce Clause Conclusion

An Empirical Study of Supreme Court Justice Pre-Appointment Experience

Abstract: This study compares the years of experience that preceded appointment to the Supreme Court for each Justice. The study seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from the Justices of earlier Supreme Courts and to persuade the reader that this is insalubrious.The first proposition is an empirical one and the difference in Justice backgrounds is demonstrable. To determine how the current Justices compare to their historical peers, the study gathered a massive database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are startling and telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court. They also spent the most time in elite undergraduate and law school settings. Time spent in these pursuits has naturally meant less time elsewhere: The Roberts Court Justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous Court. The article argues that the change is regretful for multiple normative reasons, including the way these experiences lead to legal complexity in Court decisions, the lack of litigation or trial experience on the Court, and the lack of what virtue ethics calls “practical wisdom.”

Bleeeeep! The Regulation of Indecency, Isolated Nudity, and Fleeting Expletives in Broadcast Media: An Uncertain Future for Pacifica v. FCC

Abstract: This article posits that regulating in an area of speech that raises questions about its social value and potential harm will be extremely difficult under the Roberts Court. Government restrictions targeting the content of low value, but protected, expression will be reviewed under the exacting standards of core First Amendment speech. Even though the broadcast indecency policy is shrouded in administrative agency deference standards, it is unlikely that the Court will give the FCC free-wheeling reign to enforce its new policy, which is much more speech-restrictive than the FCC’s enforcement policy of the past forty years. While the Court may not reach the ultimate question of whether Pacifica is or should be overturned, the Fox case may bring the Court one step closer to erasing the First Amendment distinctions between broadcast media and other forms of media.

From Louisville to Liddell: Schools, Rhetorical Neutrality, and the Post-Racial Equal Protection Clause

Abstract: The neutral allure of school choice, neighborhood schools, and other purported "remedies" for poorly performing schools have displaced the substantive pursuit of fully integrated schools. Indeed, the constitutional mandate of Brown v. Board of Education has been cast aside in favor of a formalistic conception of equality based on an individual right to attend neighborhood schools without reference to race. Under this post-racial interpretation of the Fourteenth Amendment, Jim Crow racial subjugation is no different than positive, race-conscious remedial efforts to integrate and preserve diversity in public schools. Voluntary choice means that some discrimination may exist "naturally" if it cannot be directly attributed to state action. Tracing school desegregation cases in Louisville and St. Louis, this Article critiques the Roberts Court's post-racial constitutionalism in Parents Involved in Community Schools v. Seattle School District No. 1. This case holds the key to the seminal doctrinal shift from the Rehnquist Court's colorblind constitutionalism to the Roberts Court's post-racial constitutionalism.

The Disdain Campaign

Abstract: A response to Pamela S. Karlan, ​The Supreme Court​ 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as “a thinly veiled critique of Congress: the fools couldn’t even figure out how to structure section § 5000A to render it constitutional.” And of the Chief Justice’s attitude, she says that “[h]e conveyed disdain even as he upheld the Act.” In her conclusion, she asks, “if the Justices disdain us, how ought we to respond?” This question echoes how she begins her provocative piece: “The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.”Although Professor Karlan also offers insightful observations comparing the Roberts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: “Democracy and Disdain.” According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don’t have their “minds right.” It is this quite distinctive thesis the author wishes to examine here. For, as it happens, the left knows a thing or two about disdain.

Harvesting New Conceptions of Equality: Opportunity, Results, and Neutrality

Abstract: My article, Harvesting New Conceptions of Equality: Opportunity, Results, and Neutrality, offers a comprehensive critique of the Roberts Court’s two seminal race cases: Parents Involved in Community Schools and Ricci v. DeStefano. This is a critical period in the Court’s history; there is a doctrinal shift from the Rehnquist Court’s colorblind constitutionalism to the Roberts Court’s post-racial universalism. The Fourteenth Amendment and Title VII have been inverted: under the Fourteenth Amendment, whites are the new discrete and insular minority to be protected from a result-oriented “racial” process; and, under Title VII, disparate impact is irrelevant in the absence of a “strong basis in evidence” to believe that there will be liability. In a very direct way, the Court’s race jurisprudence privileges reverse discrimination suits.To advance the critique of the Court’s doctrinal posture, this Article argues that the neutral rhetoric of opportunity pervades the Court’s analysis under the Fourteenth Amendment and Title VII because it is concerned with liberal individualism, not substantive equality. In Parents Involved, Brown is reinterpreted so that the central tenet of the Fourteenth Amendment, the anti-subjugation principle, is replaced with a right to individualized school choice which cannot be burdened by a voluntary attempt to maintain integrated schools. The Constitution protects individuals, not racial groups. It guarantees equal opportunity in the process, not equal results premised on race. Likewise, in Ricci, Title VII is reconceptualized so that disparate treatment claims, advanced by reverse discrimination claimants, trump disparate impact claims unless there is additional proof (a “strong basis in evidence”) that a race conscious remedy “is necessary to avoid violating the disparate-impact provision.” The Court’s approach is ill-conceived because it does not take into account the multi-layered nature of structural inequality. The Article concludes with an argument that unifies the Fourteenth Amendment and Title VII in a common purpose — the eradication of caste-based oppression and structural inequality.

Not a Free Press Court

Abstract: The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations, perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.

Emerging Constitutional Threats to Food Labeling Reform

Abstract: Much has been written about the American consumer’s untapped power to compel agriculture reform. Food safety and animal welfare advocates urge us to “vote with our wallets” to influence food production practices. This sounds good, but the federal food labeling regulatory scheme has left us frustratingly under-informed. State labeling laws and citizen consumer fraud suits have been thwarted by two powerful doctrinal weapons, federal preemption and free expression protection of commercial speech. Under the Roberts Court’s expansion of corporate personhood, these doctrines have been reshaped and reapplied. One consequence is diminished state police power authority in the name of consumer protection; another consequence is a limitation on consumer tort litigation. Parts I and II introduce the relevant food labeling regulations and traditional doctrinal analyses in consumer protection conflicts. Using recent Supreme Court cases AT&T Mobility v. Concepcion, Wyeth v. Bruesewitz, PLIVA v. Mensing, National Meat Association v. Harris, and Milavetz, Gallop & Milavetz v. United States, Part III suggests that these doctrines are becoming more obstructive to food labeling reform. The conclusion suggests that Milavetz’s approach to compelled commercial speech is an outlier, ensuring that the compelled speech doctrine will remain fertile ground for labeling litigation.

The Limits of the New Deal Analogy

Abstract: The past three years of the Obama Administration inevitably have elicited comparisons between the present day and the era of President Franklin D Roosevelt’s New Deal While frequently illuminating, such comparisons often overlook an important point that many may have forgotten: compared with the major reform initiatives undertaken during President Obama’s tenure, a review of the roll call votes reveals that the measures enacted by the New Deal Congresses enjoyed a remarkable degree of bipartisan support In addition, the Democrats enjoyed large majorities in the House of Representatives from 1933 forward, and a filibuster-proof majority in the Senate after 1934These dual luxuries of bipartisan support and electoral dominance had two important implications for the durability of New Deal legislation First, they guaranteed that in the near term there would be no significant movement within Congress to repeal that legislation Second, they ensured that if the Supreme Court held such legislation unconstitutional, Congress would get a second bite at the apple In several instances in which the Hughes Court held that a legislative attempt to address a particular problem did not pass constitutional muster, the New Deal Congresses would have, and would take, the opportunity to reformulate the program to achieve the desired end through means consistent with prevailing constitutional doctrineNeither of these conditions obtains today Congressional Republicans are committed to substantial modification or outright repeal of the Affordable Care Act, and if the Court were to declare all of portions of that Act unconstitutional, there is virtually no chance that it would be enacted in anything like its current form by the present Congress Moreover, polling data suggest that popular support for the Act is not nearly as strong as it was for programs challenged before the Court in 1937 Court decisions invalidating either the minimum wage or the Social Security Act would have frustrated both the legislative and the popular will By contrast, polls show the American people favoring repeal or judicial invalidation of all or part of the Affordable Care Act, and the Act as a whole does not enjoy the support of the present Congress A Court decision striking down the individual mandate therefore would be flouting neither the current congressional will nor present popular preferences We should bear such important differences in mind when contemplating the extent to which the 1930s provide an illuminating analogy to our present circumstances

The Roberts Court and the Civil Procedure Revival

Abstract: I. INTRODUCTION 313 II. ORGANIZING THEMES IN THE CIVIL PROCEDURE REVIVAL ..... 316 III. THE ROBERTS COURT AND OTHER RULEMAKING ACTORS...... 332 A. The Supreme Court and the Rules Enabling Act 333 B. The Supreme Court and the Lower Cowrto 338 C. The Court and Congress 345 IV. CONCLUSION 349 I. INTRODUCTION Each Chief Justice of the United States makes his mark on his Court, leading different jurisprudential projects and agendas, and moving and developing the law in some area. The New Deal Court of Charles Evan Hughes extended government power and ultimately upheld the New Deal;1 the Warren Court is associated with the expansion of individual liberties, especially in the areas of racial equality, freedom of speech, and criminal procedure;2 the Rehnquist Court is associated with federalism.3 Even if a Court never completes its doctrinal project,4 it targets some area of the law in a particular direction. What a particular Court cares about may change over time and may not always be clear, especially in the early years of a new Court with a new Chief Justice and a mass of new members. John G. Roberts was sworn in as Chief Justice of the United States in September 2005, and three Associate Justices have joined the Court since then.5 Entering its seventh Term in October 2011, the Roberts Court is newly engaged in an unexpected area - civil procedure. The Court includes four Justices whose backgrounds suggest particular solicitude for and perhaps keen interest in civil procedure: Chief Justice Roberts was a civil litigator; Justice Ginsburg, also a civil litigator, has written extensively on civil procedure; Justice Kagan taught civil procedure; and Justice Sotomayor was a district court judge for six years, meaning she alone among the Justices has worked with the Federal Rules and understands how they function on the ground.6 Over the past six Terms, the Court has heard and decided more than twenty cases hi core civil procedure areas, including pleading,7 summary judgment,8 relation back of amended pleadings, personal jurisdiction,10 federal question jurisdiction,11 diversity jurisdiction,12 jurisdictionality,13 removal procedure,14 class actions,15 civil representation,16 arbitration of civil and civil rights claims in lieu of litigation,17 appealability,18 remedies,19 and the Erie-Hanna doctrine.20 Several of these decisions have been significant and potentially far-reaching. The Court's re-engagement with civil procedure is welcome. While the lower courts do an admirable job in creating, developing, and applying procedural law, the Supreme Court is a necessary source of procedural leadership and, we would hope, clarity - a point Roberts made in his confirmation hearings.21 Of course, having civil procedure on the doctrinal agenda will not draw the attention or ire of the popular media or the public; do not expect public calls to impeach Roberts over the scope of Rule 8(a). Indeed, it may not draw the attention of many beyond the civil procedure professoriate, and even then only with a modicum of sarcasm, hi June 2011, Justice Kagan announced the unanimous decision in Smith v. Bayer Corp., which dealt with the Anti-Injunction Act and the preclusive effect of a class certification decision, introducing the case as a "complicated procedural ruling."22 One blogger reporting at the Court restated this introduction as, "if you understand anything I say, you have a law degree AND you had your cup of coffee."23 If civil procedure and the Federal Rules comprise a significant part of the Roberts Court's emerging jurisprudential agenda, it is worth exploring the Court's activity in this area, both to see and understand the trend that has been developing and to predict where it might go in coming years. …

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

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

Preserving Political Speech from Ourselves and Others

Abstract: This Essay is a case study of how and why strict scrutiny varies between cases decided within a particular doctrinal category (political speech) by a given court (the Roberts Court). Two lines of Roberts Court jurisprudence implicate political speech: federal campaign finance cases and a challenge to the federal statute criminalizing “material support” to designated foreign terrorist organizations. My aim here is to examine the common doctrinal matrix of First Amendment strict scrutiny used in those cases to explore how divergent results emerge from a unified analytic framework. A secondary goal is to illustrate how post-9/11 national security concerns find expression inside familiar and seemingly durable doctrinal frameworks. * Assistant Professor of Law, University of Chicago Law School. My thanks to Emily Berman, Justin Levitt, Faiza Sayed, and Geof Stone for insightful comments. I am also pleased to acknowledge the support of the Frank Cicero, Jr. Faculty Fund. All errors, however, are mine alone.

Toward a Future, Wiser Court: A Blueprint for Overturning District of Columbia v. Heller

Abstract: Introduction I. The Power of Dissenting Opinions II. Heller A. Majority Opinion B. Justice Stevens's Dissenting Opinion III. Landmark Cases from Future, Wiser Courts A. From Racism to Equality: Plessy and Brown 1. Plessy v. Ferguson 2. Brown v. Board of Education B. From Repression to Sexual Freedom: Bowers and Lawrence 1. Bowers v. Hardwick 2. Lawrence v. Texas C. Other Illustrative Cases from Future Courts IV. Factors Leading to a Decision Being Overturned A. Retrograde Decision in Face of Strong Social Movement B. Strength and Guidance of Prior Dissent C. Composition of the Court at the Time of Decision D. The Degree of Consensus Among the Court V. Blueprint for Overturning Heller Conclusion INTRODUCTION Justice John Paul Stevens recently bantered to Time Magazine that, if he could fix one thing about the American judicial system, it would be to make all of his dissents into majority opinions. (1) Banter aside, he stressed that if he could choose only one of his dissents to turn into a majority opinion, it would be his dissent in District of Columbia v. Heller. (2) Specifically, he said that he "would change the interpretation of the Second Amendment. The Court got that quite wrong. Gun policy should be handled by legislatures and by states, not by federal judges appointed for life." (3) With that same hope, it is rumored that, during a lecture to the Harvard Club of Washington, D.C., Justice Ruth Bader Ginsburg expressed her strong desire that Justice Stevens' dissenting opinion in Heller will become the majority opinion of "a future, wiser Court." (4) Heller is still the subject of national debate and is one of the more controversial decisions from the Roberts Court. The Court issued its pivotal 5-4 ruling on June 26, 2008, (5) finding for the first time that the Second Amendment conferred an individual right to posses firearms unrelated to service in a well-regulated militia. (6) In its analysis, the Court concluded that "central" to the Second Amendment is the natural right to self-defense, and by extension, the right to possess handguns for self-defense within the home. (7) In finding so, the Court struck down a decades-old D.C. law that banned handgun possession and required that firearms in the home be stored safely. (8) Justice Stevens issued one of two dissenting opinions. (9) In his dissent, he argued passionately that the majority rendered "a dramatic upheaval in the law" and decided the case on "a strained and unpersuasive reading" of the Second Amendment. (10) He emphasized that the Second Amendment does not contain any "statement of purpose related to the right to use firearms for hunting or personal self-defense." (11) He also stressed that the Court's ruling overturned long-standing precedent announced in United States v. Miller, which held that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness of" the state militia. (12) The decision in Heller raised the obvious question of its potential impact on existing gun control laws and whether they will stand up to a Second Amendment challenge. (13) But few have questioned whether a "future, wiser Court" will simply reverse Heller. Our Article provides a blueprint for how Justice Ginsberg's hope may be realized. In Part I, we discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts. In Part II, we analyze Heller, paying particular attention to the tensions that the conflicting majority and dissenting opinions raise. In Part III, we analyze landmark cases from future, wiser Courts that overturned stale or decidedly wrong precedent. In Part IV, we draw from these examples in order to evaluate the conditions that lead to overturning a Supreme Court case. Finally, in Part V, we apply the framework to Hellerand suggest possible ways to author its reversal. …

Not a Free Press Court

Abstract: I. INTRODUCTIONThe last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking.1 On the other hand, cable news is prospering, mobile devices such as iPads and smart phones are "adding to people's news consumption,"2 and many "new media" outlets appear to be thriving.3 Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media.4 The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two rulings in FCC v. Fox Television Stations,5 both of which avoided the looming First Amendment issue they contained, and the only decision involving "new media" is Brown v. Entertainment Merchants Ass'n.6 Media lawyers, therefore, are still trying to gain insight into how the Roberts Court envisions the role of the institutional press and whether existing constitutional protections for the press might be eroded or strengthened in coming terms.This essay, taking its cue from Erwin Chemerinsky's recent lecture, Not a Free Speech Court,7 attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, a number of patterns emerge from the Roberts Court's First Amendment decisions thus far, some which appear to be good for the media and some less positive. The good news is that the Roberts Court appears committed to protecting unpopular speech,8 limiting the spread of "medium-specific" First Amendment doctrines to new media,9 and broadly defining speech of public concern.10 The bad news, at least for broadcasters, is that the Roberts Court is not yet ready to free them from the FCCs content-based regulatory oversight,11 and the worst news for all media is that the Court appears to see the "Fourth Estate" as little more than a self-serving slogan bandied about by media corporations. 12II. PROTECTING UNPOPULAR SPEECHThe media can take heart from the strength of the Roberts Court's commitment to protecting unpopular speech, though famed First Amendment attorney Floyd Abrams is waxing hyperbolic when he asserts that "no prior Supreme Court has been as protective as [the Roberts Court]"13 in protecting unpopular speech. Abrams bases his assertion, no doubt, on decisions like Snyder v. Phelps}* which upheld the rights of the Westboro Baptist Church to protest at military funerals despite the pain inflicted on military families,15 and United States v. Stevens ,16 which struck down a federal statute making it a crime to distribute videos depicting the illegal killing, wounding, or torture of animals.17 Both Snyder(TM) and Stevens affirm that the government may not suppress distasteful speech, even when most citizens find it morally reprehensible and it offers little social value.Though Stevens might be chalked up to Congress's sloppy drafting, the Court in United States v. Alvarez reaffirmed that the First Amendment protects even "speech we detest."19 Alvarez struck down a federal statute making it a crime for a person to falsely claim that she received a military decoration or medal authorized by Congress.20 Though the Alvarez Court was divided,21 the decision affirmed that the government lacks the power to censor lies - even lies that offend patriotic values - absent a showing of significant harm.22 Although most would hope that the media do not need protection for outright lies, the Court's decision is a comforting signal that the Roberts Court will protect unpopular speakers, regardless of their ideology.III. NO EXTENSION OF "MEDIUM-SPECIFIC" REGULATIONThe principle that the government may not regulate speech because it offends many, or even most, citizens may be especially beneficial to "new media. …

Playing Well with Others - But Still Winning: Chief Justice Roberts, Precedent, and the Possibilities of a Multi-Member Court

Abstract: This Essay considers methods by which a Supreme Court Justice inclined to weaken precedent may do so without explicitly overruling cases. Adding to the literature examining "stealth overruling" and the dynamics of multi-judge courts, it examines instances from the first five years of the Roberts Court where Chief Justice Roberts acted in a way consistent with that of a judge who strategically situates himself among his colleagues so as to erode precedent while appearing to uphold it. The Essay does not speculate that the Roberts Court, or Chief Justice Roberts himself, is any more inclined than past Courts or Justices to overrule precedent, whether forthrightly or by engaging in strategic positioning that enables overruling by stealth. However, it does suggest that he has employed several methods of implicitly weakening precedents short of explicitly overruling them. These examples demonstrate that Chief Justice Roberts knows how to engage in stealth overruling when he wants to, and how to make those moves consistent with a formal commitment to judicial humility. After providing these examples, the Essay then illustrates the limitations of such a strategy by examining the Court's two recent decisions on taxpayer standing to challenge alleged Establishment Clause violations. The Essay concludes by offering some tentative observations about the intersection of stealth overruling and the dynamics of multi-judge courts and by suggesting areas for further study.

Deciphering and Extrapolating: Searching for Sense in Penn Central

Abstract: The Supreme Court has labeled Penn Central Transportation Co. v. City of New York the "polestar" of its regulatory takings doctrine. Yet Penn Central’s three-part balancing test has been widely criticized as offering nothing more than an amorphous, ad hoc framework that provides little guidance for litigants or courts reviewing takings claims. In the absence of a well defined and predictable takings doctrine, the lower courts are left grasping to make sense of Penn Central, and to extrapolate an intelligible standard from its framework. In this article, we examine the origins and interpretations of Penn Central, and identify some of the difficulties raised in its application. We explore some of the latest issues the lower courts have been struggling with in fleshing out the doctrine, which may warrant a grant of certiorari if the Roberts Court is willing to bring clarity and cohesion to regulatory takings law.