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Showing papers on "Roberts Court published in 2014"


Posted Content
TL;DR: In this article, a stylized account of the Roberts Court's recent jurisprudence is presented as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention.
Abstract: Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’ They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny. The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task. Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

44 citations


Journal Article
TL;DR: In this paper, a stylized account of the Roberts Court's recent jurisprudence is presented as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention.
Abstract: Postconviction habeas comprises about seven percent of federal district courts’ dockets and between eight and twenty percent of Supreme Court certiorari work. Scholars of all stripes condemn habeas as an empty ‘charade’ lacking ‘coherent form.’ They urge as a result root-and-branch transformation. Contra that consensus, this Article first advances a descriptive hypothesis that the Roberts Court’s habeas jurisprudence is more internally coherent than generally believed — even if its internal logic has to date escaped substantial scholarly scrutiny. The Article develops a stylized account of the Roberts Court’s recent jurisprudence as an instrument for sorting at the front end of litigation be-tween cases warranting either less or more judicial attention. This account suggests that the Roberts Court titrates judicial attention by streaming cases into one of two channels via a diverse set of procedural and substantive mechanisms. In Track One, petitioners obtain scanty review and almost never prevail. In Track Two, by contrast, petitions receive more serious consideration and have a more substantial (if hardly certain) chance of success. This stylized account of the case law enables more focused investigation of the values that the Roberts Court pursues through its current articulation of habeas doctrine — and this is the Article’s second task. Drawing on both doctrinal analysis and law-and-economics models of litigation, the Article explores several possible justifications for the Court’s observed bifurcated approach. Rejecting explanations based on state-centered federalism values, sorting, and sentinel effects, the Article suggests that some conception of fault best fits the role of a central organizing principle. This aligns habeas with constitutional tort law, suggesting a previously unexamined degree of interdoctrinal coherence in the Roberts Court’s attitude to discrete constitutional remedies. While the central aim of this Article is positive and descriptive in character, it concludes by examining some normative entailments of habeas’s persistence in a bifurcated state. Specifically, I suggest that a better understanding of the Court’s fault-based logic casts skeptical light on existing reform proposals, and is at least consistent with the possibility that habeas could still serve as a tool in some larger projects of criminal justice reform.

36 citations


Book
01 Jan 2014
TL;DR: The Civil Rights Revolution "carries Bruce Ackerman's sweeping reinterpretation of constitutional history into the era beginning with Brown v. Board of Education, from Rosa Parks's courageous defiance, to Martin Luther King's resounding cadences in "I Have a Dream," to Lyndon Johnson's leadership of Congress, to the Supreme Court's decisions redefining the meaning of equality, the movement to end racial discrimination decisively changed our understanding of the Constitution" as mentioned in this paper.
Abstract: The Civil Rights Revolution "carries Bruce Ackerman's sweeping reinterpretation of constitutional history into the era beginning with Brown v. Board of Education." From Rosa Parks's courageous defiance, to Martin Luther King's resounding cadences in "I Have a Dream," to Lyndon Johnson's leadership of Congress, to the Supreme Court's decisions redefining the meaning of equality, the movement to end racial discrimination decisively changed our understanding of the Constitution.Ackerman anchors his discussion in the landmark statutes of the 1960s: the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. Challenging conventional legal analysis and arguing instead that constitutional politics won the day, he describes the complex interactions among branches of government--and also between government and the ordinary people who participated in the struggle. He showcases leaders such as Everett Dirksen, Hubert Humphrey, and Richard Nixon who insisted on real change, not just formal equality, for blacks and other minorities.The civil rights revolution transformed the Constitution, but not through judicial activism or Article V amendments. The breakthrough was the passage of laws that ended the institutionalized humiliations of Jim Crow and ensured equal rights at work, in schools, and in the voting booth. This legislation gained congressional approval only because of the mobilized support of the American people--and their principles deserve a central place in the nation's history. Ackerman's arguments are especially important at a time when the Roberts Court is actively undermining major achievements of America's Second Reconstruction.

26 citations


Book
03 Jun 2014
TL;DR: Tribe and Matz as discussed by the authors show that the Roberts Court is rewriting critical aspects of constitutional law and redrawing the ground rules of American government, and the undercurrents they reveal suggest a strikingly different vision for the future of our country.
Abstract: From Citizens United to its momentous rulings regarding Obamacare and gay marriage, the Supreme Court under Chief Justice John Roberts has profoundly affected American life. Yet the court remains a mysterious institution, and the motivations of the nine men and women who serve for life are often obscure. Now, in Uncertain Justice, Laurence Tribe and Joshua Matz show the surprising extent to which the Roberts Court is revising the meaning of our Constitution. This essential book arrives at a make-or-break moment for the nation and the court. Political gridlock, cultural change, and technological progress mean that the court's decisions on key topics-including free speech, privacy, voting rights, and presidential power - could be uniquely durable. Acutely aware of their opportunity, the justices are rewriting critical aspects of constitutional law and redrawing the ground rules of American government. Tribe - one of the country's leading constitutional lawyers - and Matz dig deeply into the court's recent rulings, stepping beyond tired debates over judicial "activism" to draw out hidden meanings and silent battles. The undercurrents they reveal suggest a strikingly different vision for the future of our country, one that is sure to be hotly debated.

12 citations


Posted Content
TL;DR: Narrowing occurs when a court declines to apply a precedent even though, in the court's own view, the precedent is best read to apply as mentioned in this paper, which is widely condemned as deceptive, as well as contrary to stare decisis.
Abstract: “Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice — often called “stealth overruling” — is widely condemned as deceptive, as well as contrary to stare decisis. On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance. As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible — including frequently overlooked decisions by the Court’s more liberal members. Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice — and a good thing, too.

7 citations


Journal ArticleDOI
TL;DR: In this paper, the authors examine the Roberts Court and its relationship to the Obama administration following the 2014 midterm election, arguing that the Court's more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime.
Abstract: Abstract This article examines the Roberts Court and its relationship to the Obama administration following the 2014 midterm election. We begin by analyzing how the Court has been structured by electoral politics during the past 40 years, arguing that the Court’s more conservative, divided, and polarized decision-making reflects the politics of the post-1968 electoral regime. We then consider the impact of the 2014 midterm election. Republican control of the Senate will constrain the president’s ability to shape the federal courts going forward. It will most likely leave the composition of the current Supreme Court intact, leave Justice Kennedy as the pivotal swing vote, while elevating the Court as a campaign issue in the 2016 presidential election.

5 citations


Posted Content
TL;DR: For instance, the authors provides an early assessment of the Roberts Court's securities law decisions. But their analysis is limited to the cases to be argued in the October 2014 term, and is used to sketch the types of cases likely to attract the attention of the Court in the future.
Abstract: This article provides an early assessment – both quantitative and qualitative – of the Roberts Court’s securities law decisions. Such cases represent an increased share of Supreme Court’s docket, compared to prior Courts, but only because its overall docket has shrunk, while it has continued to take an average of one to two securities law cases per year. The Roberts Court has maintained the same overall split in “expansive” or “restrictive” outcomes as the post-Powell Rehnquist Court, with reduced polarization: more than half were unanimous and only three included five-vote majorities. An attitudinal model does no better than a coin flip in predicting outcomes. What are new is a heightened role for procedure and a resistance to bright-line rules, with procedural decisions more restrictive and rejections of bright-line rules more expansive. The turn to procedure matches the background and interests of the Chief Justice, a former appellate litigator leading a broader “procedural revolution” on the Court, beyond the limited reach of securities law. The analysis is applied to predict outcomes for cases to be argued in the October 2014 term, and is used to sketch the types of cases likely to attract the attention of the Court in the future.

5 citations


Journal ArticleDOI
TL;DR: In this paper, the authors examined the relationship between the voting records of individual Justices in cases citing the Chevron doctrine and other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action.
Abstract: This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at how the Roberts Court has handled one of the most important issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action. On the first angle, in an earlier article, I presented data on Justices’ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts’ first four terms in which Chevron was applied by the majority or argued or in a dissent. What I found was that the Court generally split along familiar ideological lines most of the time, with liberals deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations. The updated data presented in this article confirm this general pattern although in recent years the Court has deferred to agency decisions in a higher proportion of the cases. On the second angle, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. On the third angle, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary, capricious review. In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary, capricious standard specified in the Administrative Procedure Act.

5 citations


Journal Article
TL;DR: In the last twenty-five years, the Supreme Court has struck down all limits on campaign expenditures, some limits on contributions, state experiments in open primaries, and the central feature of the Voting Rights Act.
Abstract: I INTRODUCTION In the last twenty-five years, the Supreme Court has struck down all limits on campaign expenditures, some limits on campaign contributions, state experiments in open primaries, and the central feature of the Voting Rights Act. The decisions have not been popular, and, in many cases, the reasoning has been quite inventive and has veered away from precedent. The question behind this article is whether there is an underlying ideology connecting these decisions. One possibility is that these cases are simply a function of rigorous application of doctrinal commitments. The Justices who led the charge on these cases might believe, as an outgrowth of their theories of constitutional adjudication, in a fairly absolute First Amendment and a rigorous Tenth Amendment. Accordingly, it might be that the centerpiece of the Voting Rights Act and the centerpiece of the campaign-finance laws had to be sacrificed because of intellectual integrity. Alternatively, one might read this history through a cynical lens adopted by some Court critics: The Court is simply exercising raw power. If you take this view, there is no "Roberts Court"; there is something more like a "Kennedy-Roberts alliance" made up of five partisan Justices (Roberts, Kennedy, Alito, Scalia, and Thomas) who use their power to benefit those whom they perceive to be on their team. In this version of recent history, the Kennedy-Roberts alliance think the Voting Rights Act hurt Republicans, so they used invented doctrine to strike it down; they think that fewer restrictions on corporate speech cause Democrats to lose at the polls, so they have struck down corporate expenditure rules. Another, related possibility is that the members of the Kennedy-Roberts alliance are driven by racial, ethnic, or class concerns. The "us" and "them" within the Court are not political teams, but factional ones. A third possibility is that the Justices are neither doctrinal nor partisan nor group-defending, but driven by an ideology--by something like neoliberalism. In this possibility, the Justices have used their power to build a political society around general principles of politics, persons, and government with which they align. The members of the Court have a background set of political philosophies about government itself that drive these decisions. If this possibility is the best explanation--or even part of the explanation--then the task here is to explain that ideology. What do recent election-law cases suggest about the way government and politics should work? Do Justices Roberts, Kennedy, and Alito believe that democracy is a good way to improve the moral character of citizens, to increase the flow of information to decisionmakers, and to lead to greater peace and stability? Do they believe that power should be primarily allocated to the public, or is the public a check on the exercise of the power of elites? Do they have a theory of power? This investigation cannot help but be a form of ideological palace intrigue focused on the head of the Court: "What does Justice Roberts really think about democracy and his own role in it?" The texts are few, and the writers are even fewer--just a dozen men and women over the last twenty-five years have struck down laws supported by a broad majority of Americans. (1) I regret that imbalance. I find nothing particularly interesting about the minds or theories of these men and women, except inasmuch as those with power are always interesting. But if these dozen men and women are aggressively changing the rules of the American polity, it is worth exploring what they think government should look like. Furthermore, they are not men or women outside of their time, but part of it, and symptoms--as well as causes---of contemporary ideology. This article, besides being royalist in its focus, is also speculative. One of the more prominent features of the Kennedy-Roberts alliance election-law opinions is how short, ahistorical, and formal they are. …

4 citations


Journal Article
TL;DR: Shelby County v. Holder as mentioned in this paper was the first case to hold that Section 5 of the Voting Rights Act of 1965 (VRA) violates the principle of equal sovereignty.
Abstract: IntroductionChief Justice Roberts's majority opinion in Shelby County v. Holder,' holding unconstitutional a key part of the Voting Rights Act of 1965 (VRA),* 1 2 purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA,3 which was used to determine which states and local governments must submit any proposed voting changes for federal approval (or "preclearance") under Section 5.4 According to the majority, by failing to amend the VRA to update the coverage formula after the Court raised constitutional doubts about preclearance in the 2009 Northwest Austin Municipal Utility District No. One v. Holder {NAMUDNO),5 Congress "leaves us today with no choice."6 "Striking an Act of Congress 'is the gravest and most delicate duty that this Court is called on to perform.'"7 The majority held that the coverage formula renewed without change by Congress in 2006 failed to take into account "current conditions" of discrimination in covered jurisdictions and failed to treat states with the "equal sovereignty" they deserved under the Tenth Amendment.8 Rather than strike down Section 5 of the VRA, as Justice Thomas would have done,9 the Court "issue[d] no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions."10 The short opinion for the five most conservative Justices on the Court-only two-thirds the size of Justice Ginsburg's dissent for the four most liberal Justices11-casts itself as adhering to precedent, reaching a result compelled by stare decisis and inevitably flowing from NAMUDNO.12 The majority ostensibly stands ready for Congress's next step.Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes13 and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent's powerful argument that the VRA's bailout provisions solve any constitutional problem, and rejects the Roberts Court's stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning Section 5 of the VRA, yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress, which dooms agreement on a new coverage formula, and it seems to reject any replacement coverage formula.But the opinion is minimalist in a different, important sense as well: its brevity seeks to mask major doctrinal and jurisprudential change. By writing a very short opinion and avoiding a discussion of the Fifteenth Amendment's history and how the Court silently resolved a dispute over the applicable standard of review, the Court tried to hide the major jurisprudential hurdles it jumped to reach a political decision. The opinion, relying on a new and unjustified "equal sovereignty" principle,14 demeans the strength of Congress's power to eradicate racial discrimination in voting, sidestepping a key standard of review question raised, but not resolved, in NAMUDNO regarding how much deference the Court owes Congress acting under its Fifteenth Amendment enforcement powers.15 The opinion's brevity is an insult, not an act of modesty. As Justice Ginsburg remarked in dissent, "[hjubris is a fit word for today's demolition of the VRA."16Yet the dissenters offer their own incomplete history of the VRA's renewal, failing to grapple with the more complex record of the congressional reenactment. T o hear the dissenters' story, Congress in 2006 was nearly universally behind the twenty-five-year renewal of Section 5 using the old coverage formula and would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality.17 In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress's attention and which were amply covered by a Senate report written by Republican committee staffers who were deeply skeptical of the Act's continuing constitutionality. …

4 citations


Journal ArticleDOI
TL;DR: The Rehnquist and Roberts Courts have reinterpreted rules 8, 23, and 56 of the Federal Rules of Civil Procedure, in each case altering them to restrict access to the federal courts and make early dismissals more readily available as mentioned in this paper.
Abstract: The Rehnquist and Roberts Courts have reinterpreted rules 8, 23, and 56 of the Federal Rules of Civil Procedure, in each case altering them to restrict access to the federal courts and make early dismissals more readily available. Neither changes in the text of the rules nor new discoveries about their original intended meaning justified those decisions. Indeed, the reinterpretations conflicted with the stated purposes of those rules and contradicted the Court’s own repeated acknowledgments that it has no authority to change the meaning of any Federal Rule once Congress has adopted it. This article examines those changed interpretations, shows that they brought parallel anti-plaintiff results, and demonstrates that those results are consistent with the practical social results that flow from a wide variety of other decisions of the Rehnquist and Roberts Courts. The decisions construing Rules 8, 23, and 56 advance the same anti-plaintiff policies that mark the Court’s decisions restricting or defeating tort, antitrust, civil rights, securities, environmental, and employment discrimination claimants. The article argues that the Federal Rules decisions of the Rehnquist and Roberts Courts are not only compatible in their social results with their decisions in those other areas but that they all spring from the same extra-legal source, the commitments of the Court’s conservative Republican justices to their party’s market-based ideologies. Although those justices commonly assert text, tradition, and original meaning as justifications for their decisions, they have been wholly inconsistent in applying those methods. The consistency of their jurisprudence lies not in their application of any rigorous legal method but in their ideologically-rooted desire to block certain kinds of lawsuits and to protect from liability state governments, state and local officials, and corporate defendants.

Posted Content
TL;DR: The Roberts Court under Chief Justice John Roberts has become less likely to strike down federal laws, but more likely to invalidate state laws as mentioned in this paper, and the Roberts Court can thus far be called the least activist Supreme Court in history.
Abstract: Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. The Court has become less likely to strike down federal laws, but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberals justices to the Court who could press the constitutional views that are now most often expressed in dissent.

Posted Content
TL;DR: In this paper, the authors re-conceptualize constitutional theories as attempts to confront this conflict and expose the limbo in which the Court currently resides, in which constitutional identity is controlled by the logic of foundational politics while the domain of expertise is controlled with apolitical, systematic knowledge.
Abstract: In recent decades the American Supreme Court has been struggling with two main issues: articulating America’s constitutional identity and the decline of legal expertise in the public mind. First, since American national identity is currently dependent to a large extent on the Constitution, the Court has an important role in defining, or at least expressing, this constitutional identity. The second issue facing the Court stems from the threat to its legitimacy due to the growing public awareness that legal expertise does not dictate the decisions in constitutional cases and that judicial discretion is partly based on political considerations. These two issues require the Court to practice two distinct and conflicting forms of logic. The domain of constitutional identity is controlled by the logic of foundational politics while the domain of expertise is controlled by the logic of apolitical, systematic knowledge. By re-conceptualizing constitutional theories as attempts to confront this conflict, I expose the limbo in which the Court currently resides. In an attempt to escape from this limbo, the Court has adopted in recent decades the paradigm of thin liberalism as its answer in the realm of constitutional identity. Yet, this way of viewing American constitutional identity as neutral towards the question of the good life cannot provide an adequate response to President Obama’s recent attempt to redefine America’s constitutional identity. In the expertise domain, the Roberts Court’s tactic of thin expertise has thus far failed as public opinion polls show that public confidence for the Court has been in decline in recent years.

Journal Article
TL;DR: The Roberts Court under Chief Justice John Roberts is the least activist Supreme Court in American history as mentioned in this paper, and it has been widely recognized as the most conservative Court in history, but it has not been frequently observed that the Roberts Court has been remarkably reluctant to exercise the power of judicial review.
Abstract: Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This Article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. The Court has become less likely to strike down federal laws, but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberal Justices to the Court who could press the constitutional views that are now most often expressed in dissent. INTRODUCTION Not too many years ago, both activists and scholars were increasingly alarmed by the apparent activism of the U.S. Supreme Court. Such critiques of the Court have gradually faded, but have certainly not disappeared. Justice Ruth Bader Ginsburg only recently insisted that she needed to stay on the Court in order to oppose what is "one of the most activist courts in history." (1) The Justices are still subjected to denunciations of particular decisions, but broad-gauged attacks on the activism of the Court have seemingly receded. The shifting critiques of the Court reflect an underlying reality. In recent years the Court has been less active in exercising the power of judicial review than it has at any point in its modern history. But even the earlier critiques of an apparently activist Court obscured underlying trends in judicial review. The Roberts Court is notably conservative, but that simple label provides only a partial description of the recent Court. Chief Justice John Roberts is himself part of a conservative majority that has often been able to shape the recent development of constitutional law. But the Court remains divided between more conservative and more liberal Justices, and those coalitions offer competing visions of what the constitutional rules are and how they ought to be applied. Over time, the liberal wing of the Court has often been able to form majorities to strike down legislation, usually over the objections of the conservative wing. Ironically, it is Ginsburg herself who is among the most activist Justices on the current Court and represents the most likely source of increased judicial invalidations. (2) It has not been frequently observed that the Roberts Court has been remarkably reluctant to exercise the power of judicial review. The Court in recent years has struck down federal laws in fewer cases than has its predecessors. More importantly, the Court has struck down state laws in far fewer cases than has been routine for the past century. This Court could plausibly be described as the least activist Court in history, and this recent pattern should also cause us to reevaluate the claims of activism during the late Rehnquist Court. This Article proceeds in stages. Part I reviews claims that the contemporary Court has been the most activist in history. Part II develops the case for thinking that the Roberts Court has instead been the least activist. …

Journal Article
TL;DR: A recent review of the state of the art in free speech theory can be found in this article, where the authors argue that the Court's more rigid approach to free speech is unsustainable and that contextual flexibility matters in determining when funding conditions go beyond sensible restrictions and become unlawful compulsion.
Abstract: Freedom of speech doctrine is an analytical and theoretical morass. This is primarily because expression is a ubiquitous human activity that government regulates in ways that defy simple summary. Yet despite the complexity and vast scope of the modern freedom of expression terrain, commentators and courts strain to identify unifying, formalistic analytical principles and to propose singular theoretical prisms through which to view the terrain. I argue that this is a wrong turn. A better understanding of past and present free speech practice requires thinking that is factored, not formulaic; contextual, not trans-contextual; dynamic, not static; tentative, not absolutist; plural, not singular or even dichotomous. In fact, nuance will be increasingly important in future First Amendment cases, as new science, new technologies, and socio-political developments challenge fundamental assumptions that undergird the doctrine. This is especially apparent when one confronts the free speech canard that government cannot compel private expression. This Article proceeds in two parts. Part I describes in broad strokes the current state of doctrinal and theoretical affairs in the free speech realm. It offers a topography of the free speech doctrinal terrain and identifies key questions that pervade it. This section focuses in particular on the significance of “above-the-line” treatment of speech regulations that trigger elevated scrutiny. This overview shows that the doctrine offers, at most, a set of norms and questions that inform judicial analysis rather than a “fixed star” or even fixed principles. Part II critiques three recent Roberts Court decisions that ignore this doctrinal reality. The Court ∗ Regent’s Professor, Milton O. Riepe Chair in Constitutional Law and Dean Emerita of University of Arizona James E. Rogers College of Law. Thanks go to David Adelman, Barbara Allen Babcock, and Genevieve Leavitt for improving the arguments herein, and especially to Jane Bambauer and Derek Bambauer, for inspiring and honing many of them. I also am indebted, as always, to my colleagues at the University of Arizona James E. Rogers College of Law. The editors, especially Marla Benedek, were terrific and I thank them for their insightful feedback throughout the editorial process. 1 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). 366 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:2 has insisted that speaker identity distinctions always trigger elevated scrutiny, that only traditional and historical categorical exceptions are constitutional, and that government speech is beyond the freedom of speech principles. None of these formalistic statements can be squared with other free speech doctrine, significant zones of traditional government regulation, or common sense. They also weaken the Court’s ability to balance the conflicting policy concerns that arise in a host of speech-sensitive areas—such regulation of data collection, licensed professionals, or other commercial actors. That the Court’s more rigid approach to free speech is unsustainable is especially apparent if one examines the compelled speech cases. Contrary to Justice Robert Jackson’s rhetorically arresting “no fixed star” celebration of individual freedom from compulsory pledges of allegiance, government often demands private expression, crafts it, or silences it altogether. Government can, and often does, “tread on me.” Constitutionally mandated oaths of office, occupation-specific codes of conduct, public accommodations laws, audience and context-specific regulation of the content of information disclosures, many employment and civil rights statutes, student conduct codes, conditions on government benefits, anti-fraud laws, and many other forms of government speech regulation demonstrate that there is no across-the-board constitutional mandate against government compelled expression. In all of these cases, context, history and a host of relevant government interests matter. In 2013, the Roberts Court struck down a condition on a government grant that it deemed unduly coercive of grantees’ freedom of expression. Yet the Court also recognized that contextual flexibility matters in determining when funding conditions go beyond sensible restrictions and become unlawful compulsion. I praise this recent turn away from free speech formalism, and suggest this not only is the better analytical approach in compelled speech cases, but in free speech cases more generally.

Posted Content
TL;DR: In this article, the authors define the notion of penumbral federalism as a pragmatic negotiation that works to maintain some semblance of federalism in an age when pragmatism has pressured even formalist and conservative judges to accept federal regulatory primacy.
Abstract: For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts — which derive from a “penumbral” reading of the Tenth Amendment — represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.After fleshing out what “penumbral federalism” is and its theoretical basis, the article explores the approach’s prudential appeal: penumbral federalism is a pragmatic negotiation that works to maintain some semblance of federalism in an age when pragmatism has pressured even formalist and conservative judges to accept federal regulatory primacy. By framing the most important Roberts Court decisions in penumbral federalism terms, the article reveals the method to the seeming madness: they are the logical fruits of intellectual seeds planted in Rehnquist Court decisions.

Posted Content
TL;DR: The most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the constitutional law of religious freedom as mentioned in this paper, and it illustrates that contraction in three ways.
Abstract: This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors — the Rehnquist and Burger Courts — both of which exercised judicial review more regularly. Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases. Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well. Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach — logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Journal Article
TL;DR: The case of Mapp v. Ohio as discussed by the authors was the first to formally define the exclusionary rule and its application in the criminal justice system, and the case of Herring v. United States was one of the first cases in which the exclusion rule was applied in criminal justice.
Abstract: CONTENTS I. PREVAILING THEORIES OF THE EXCLUSIONARY RULE A. Deterrence 1. Deterring Too Little 2. Deterring Too Much 3. Precedent 4. Legitimacy B. Equitable Restoration C. Judicial Integrity D. Judicial Review II. THE EXCLUSIONARY RULE AS DUE PROCESS A. Due Process as Adherence to Law B. Exclusion as a Due Process Remedy C. The Fourth Amendment as Pre-Trial Procedure D. Historical Change and Interpretive Method III. MAKING SENSE OF EXCLUSIONARY DOCTRINE A. Basic Explanatory Power 1. Personal 2. Evidentiary 3. Newtonian 4. Transsubstantive 5. Incorporated 6. Presumptive B. The Boundaries of Due Process 1. Grand Juries 2. Habeas Corpus 3. Impeachment 4. Civil Proceedings 5. Nonconstitutional Process 6. The Good-Faith "Exception" IV. REVISING AND EXTENDING EXCLUSIONARY DOCTRINE A. Scope Versus Manner 1. Probable Cause and Excessive Force 2. Stops and Warrants 3. Arrest and Extradition B. Authority, Not Causality 1. Attenuation 2. Inevitability and Independence 3. Identity C. Digital Surveillance 1. Data Mining 2. The Mosaic Theory CONCLUSION The exclusionary rule has entered a new period of crisis. In a pair of 5-4 decisions, the Roberts Court has established the doctrinal basis for radically curtailing the circumstances in which the Fourth Amendment exclusionary rule might apply. The first decision, Hudson v. Michigan, argued at length that the exclusionary rule was a product of a bygone era, when police were unprofessional and egregious Fourth Amendment violations were routine. Because times have changed, the Court reasoned, the exclusionary rule often "forc[es] the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago." The second decision, Herring v. United States, went even further by suggesting the specific form that a twenty-first-century exclusionary rule might take. "To trigger the exclusionary rule," the Court said, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." In other words, the exclusionary rule should apply in Fourth Amendment cases, if at all, only when the police have exhibited "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Read for all they are worth, the sweeping dicta set out in Hudson and Herring would work a revolution. (1) In 1961, Mapp v. Ohio (2) declared "that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." (3) Today, while there are of course many exceptions to the exclusionary rule, the basic default established in Mapp--that unconstitutionally obtained evidence is presumptively inadmissible at trial--remains a cornerstone of American criminal procedure. Yet Herring repeatedly cited and endorsed views that Judge Henry J. Friendly wrote to criticize cases like Mapp and their broad endorsement of exclusionary remedies. (4) Many commentators have noted the Court's "ominous" signals. (5) As if to confirm that suspicion, the Justices have already begun to stake out positions in this divisive and apparently inevitable contest. (6) Despite the sense of change in the air, debate over the exclusionary rule has become hackneyed, (7) as evidenced by Herring's invocation of Judge Friendly's 1965 article. (8) Indeed, the battle lines seem to have been drawn long ago. On one side are those who believe that a broad exclusionary rule both deters the police from infringing the Fourth Amendment and honors moral values, such as equitable restoration. (9) On the other side are critics who argue that the rule is both inconsistent with historical practice and unnecessary in light of other actual or potential constraints on police behavior. …

Journal Article
TL;DR: The authors examined the voting records of individual Justices in cases citing Chevron to illuminate each Justice's commitment to deference to agency statutory construction and found that the Court generally split along familiar ideological lines.
Abstract: This Essay looks at how Chevron deference1 has fared at the U.S. Supreme Court since John G. Roberts became Chief Justice.2 As followers of U.S. administrative law know, the Court‘s 1984 Chevron decision famously created an apparently new two-step process for reviewing federal agency decisions interpreting statutes they administer. Since then, the Chevron decision has been the most-cited Supreme Court administrative law decision, and the Chevron doctrine has spawned legions of law review articles analyzing its numerous twists and turns. This Essay looks at Chevron deference at the Roberts Court from three distinct angles. First, the Essay examines the voting records of individual Justices in cases citing Chevron to illuminate each Justice‘s commitment to deference to agency statutory construction. Second, the Essay qualitatively examines a select sample of opinions citing Chevron, to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the Essay looks closely at how the Roberts Court has handled one of the most vexing issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary or capricious standard that governs all reviewable agency action. To the first point, in an earlier article,3 I presented data on Justices‘ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts‘ first four Terms in which Chevron was applied by the majority or cited in a dissent.4 What I found was that the Court generally split along familiar ideological lines, with liberals

Journal Article
TL;DR: The four cases considered are: National Federation of Independent Business v. Sibelius, which upheld most of President Barack Obama's health care legislation (but not under the broad power of the Commerce or Necessary and Proper Clauses of the Constitution), Shelby County v. Holder, which struck down key provisions of the Voting Rights Act of 1965 because Congress could not, unless justified by current conditions, impose on some states (which had a history of discrimination in voting) burdens not borne by others.
Abstract: This article examines four decisions of the US Supreme Court rendered in the period 2011-2013 under the leadership of Chief Justice John Roberts relating to the issue of US federalism. While it is too soon to offer a definitive appraisal of the Court�s federalism jurisprudence, these decisions suggest that the Court will continue, if not deepen, the narrowing construction of federal power favoured by its predecessor, the Rehnquist Court. Indeed, it seems fair to say that the Roberts Court is developing a federalism jurisprudence which seeks not only to limit federal power but to protect the �dignity� of the states as dual sovereigns with the federal government. The four cases considered are: National Federation of Independent Business v. Sibelius, which upheld most of President Obama�s health care legislation (but not under the broad power of the Commerce or Necessary and Proper Clauses of the Constitution); Shelby County v. Holder, which struck down key provisions of the Voting Rights Act of 1965 because Congress could not, unless justified by current conditions, impose on some states (which had a history of discrimination in voting) burdens not borne by others;, United States v. Windsor, which ruled Congress could not define marriage to exclude same sex marriages regardless of state law; and Arizona v. United States, which held that the strict Arizona immigration statute was preempted by federal law because the state �may not pursue policies that undermine federal law.�

Journal Article
TL;DR: For example, the authors argues that the Court's actual application of the doctrine of stare decisis should not be applied in the same manner in all cases, and that sometimes the doctrine should not apply at all.
Abstract: Changes in constitutional doctrine impose costs in terms of the values traditionally associated with the rule of law. Stability, predictability, and public confidence in the presumptive legitimacy of current law all can be undermined by departures from, or formal overruling of, prior precedent. The prudential doctrine of stare decisis is meant to ameliorate these costs by counseling judicial adherence to precedent even in those cases where a judge believes the prior decision was wrong. (1) Although consistently described as a discretionary policy, as opposed to an "inexorable command," the Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. (2) Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article argues that, on the contrary, stare decisis ought not be applied in the same manner in all cases. In fact, occasionally stare decisis should not apply at all. Before the Court considers whether and how to apply stare decisis in a constitutional case, it must first determine whether the application of the doctrine is appropriate. This initial determination requires an application of normative interpretive theory. When viewed through the lens of theory, some judicial errors impose such high costs that application of the doctrine of stare decisis is inappropriate, and those errors should simply be rectified. Even in those constitutional cases where theory allows the maintenance of judicial error to be a legitimate option, considerations of normative theory affect how the Court ought to balance the costs of upholding against the costs of overruling erroneous precedent. In cases where theory suggests the costs of judicial error are relatively low, avoiding substantial harm to the rule of law might reasonably suggest that the Court should "stand by" the flawed decision. Where theory suggests the costs of error are high, however, only the most severe disruption to the rule of law can justify maintaining a flawed precedent. This balancing of normative theory and stare decisis occurs in all judicial applications of stare decisis, though not always in a transparent manner. This Article suggests that such balancing is perfectly appropriate but that it needs to be more deeply theorized and more transparently applied. I begin by considering some of the high-profile cases of the Rehnquist and Roberts Courts that dealt with the issue of maintaining a flawed precedent. This is not meant to be an exhaustive account, but merely a review of those cases that highlight the Court's different approaches to stare decisis in different cases. On their faces, these decisions seem to apply different and almost contradictory theories of stare decisis. When viewed through the lens of normative theory, however, the decisions reflect not so much contradictory applications of stare decisis as varying assessments of the cost of maintaining judicial error. The impact of this counter-balancing consideration of normative theory is especially evident in the Roberts Court's decision to overrule Austin v. Michigan State Chamber of Commerce (3) in Citizens United v. Federal Election Commission. (4) Building upon the implicit theory of Citizens United, the final Part sketches a more complete theory of stare decisis that takes into consideration both the rule of law considerations of stare decisis and the normative considerations that flow from the traditional theory of popular sovereignty. …

Posted Content
TL;DR: A recent review of the state of the art in legal analysis of free speech can be found in this article, where the authors argue that the Court's more rigid approach to free speech is unsustainable and suggest this not only is the better analytical approach in compelled speech cases, but in free speech cases more generally.
Abstract: Freedom of speech doctrine is an analytical and theoretical morass. This is primarily because expression is a ubiquitous human activity that government regulates in ways that defy simple summary. Yet despite the complexity and vast scope of the modern freedom of expression terrain, commentators and courts strain to identify unifying, formalistic analytical principles and to propose singular theoretical prisms through which to view the terrain. I argue that this is a wrong turn. A better understanding of past and present free speech practice requires thinking that is factored, not formulaic; contextual, not trans-contextual; dynamic, not static; tentative, not absolutist; plural, not singular or even dichotomous. In fact, nuance will be increasingly important in future First Amendment cases, as new science, new technologies, and socio-political developments challenge fundamental assumptions that undergird the doctrine. This is especially apparent when one confronts the free speech canard that government cannot compel private expression. This Article proceeds in two parts. Part I describes in broad strokes the current state of doctrinal and theoretical affairs in the free speech realm. It offers a topography of the free speech doctrinal terrain and identifies key questions that pervade it. This section focuses in particular on the significance of "above the line" treatment of speech regulations that trigger elevated scrutiny. This overview shows that the doctrine offers, at most, a set of norms and questions that inform judicial analysis rather than a "fixed star" or even fixed principles. Part II critiques three recent Roberts Court decisions that ignore this doctrinal reality. The Court has insisted that speaker identity distinctions always trigger elevated scrutiny, that only traditional and historical categorical exceptions are constitutional, and that government speech is beyond the freedom of speech principles. None of these formalistic statements can be squared with other free speech doctrine, significant zones of traditional government regulation, or common sense. They also weaken the Court’s ability to balance the conflicting policy concerns that arise in a host of speech-sensitive areas – such regulation of data collection, licensed professionals, or other commercial actors. That the Court’s more rigid approach to free speech is unsustainable is especially apparent if one examines the compelled speech cases. Contrary to Justice Robert Jackson’s rhetorically arresting "no fixed star" celebration of individual freedom from compulsory pledges of allegiance, government often demands private expression, crafts it, or silences it altogether. Government can, and often does, "tread on me." Constitutionally mandated oaths of office, occupation-specific codes of conduct, public accommodations laws, audience and context-specific regulation of the content of information disclosures, many employment and civil rights statutes, student conduct codes, conditions on government benefits, anti-fraud laws, and many other forms of government speech regulation demonstrate that there is no across-the-board constitutional mandate against government compelled expression. In all of these cases, context, history and a host of relevant government interests matter. In 2013, the Roberts Court struck down a condition on a government grant that it deemed unduly coercive of grantees’ freedom of expression. Yet the Court also recognized that contextual flexibility matters in determining when funding conditions go beyond sensible restrictions and become unlawful compulsion. I praise this recent turn away from free speech formalism, and suggest this not only is the better analytical approach in compelled speech cases, but in free speech cases more generally.

Posted Content
TL;DR: The authors of the Valparaiso Law Review had the good sense to hold their symposium conference "Money in Politics: The Good, the Bad, and the Ugly" the week the Supreme Court issued its decision in McCutcheon v FEC.
Abstract: The editors of the Valparaiso Law Review had the good sense to hold their symposium conference “Money in Politics: The Good, the Bad, and the Ugly” the week the Supreme Court issued its decision in McCutcheon v FEC At the symposium, one of the authors of this article, Liz Kennedy, presented a talk entitled, “The Supreme Court, the Constitution, and the Crisis of Confidence in American Democracy,” which explained how the Roberts Court has misunderstood the democratic interests at stake in its recent campaign finance cases The Roberts Court has applied a blinded, highly abstract First Amendment doctrine, which ignores the distortion of democratic responsiveness caused by big money in politics We see this play out in anti-majoritarian policy outcomes that demonstrate the lack of meaningful representation experienced by the non-wealthy This type of endemic political inequality constitutes a corruption of democracy because a democratic system of government is one in which elected officials are responsive to the views of each citizen considered as political equals Accordingly, to the extent that the First Amendment is understood to be in service to democracy, it cannot be read as permitting a small, wealthy minority to accrue political power deriving from their wealth — that, after all, is the definition of a plutocracyThis article expands upon Ms Kennedy's presentation, further describing the jurisprudential and policy mistakes made by the controlling plurality in McCutcheon, including its inconsistency with important precedent Specifically, Part II describes McCutcheon’s plurality holding and its direct practical effects on campaign fundraising Part III explains why the expected influx of additional money into politics will exacerbate democratic harms that already damage our republic Part IV considers McCutcheon’s place in the Court’s prior jurisprudence in this area Part V discusses the path towards the democracy we deserve Finally, Part VI concludes by reiterating the movement towards a pro-democracy understanding of the Constitution

Journal ArticleDOI
01 Jan 2014
TL;DR: In this paper, the authors track the development and consequences of the Implied Exemption doctrine and conclude that, given the chance, the Roberts Court will uphold it and evaluate its impact on agency behavior and offer modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.
Abstract: Forty years ago, in Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma, the Supreme Court reserved a critical question that the federal courts have endeavored to answer. In so doing, the lower courts forged the novel common law doctrine of “implied exemption,” which releases agencies from National Environmental Policy Act obligations when they undertake “non-discretionary” actions. This Article tracks the development and consequences of this largely unnoticed but influential doctrine and concludes that, given the chance, the Roberts Court will uphold it. It also evaluates the doctrine’s impact on agency behavior and offers modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.

Posted Content
TL;DR: For example, the doctrine of one last chance as discussed by the authors has been used by the Roberts Court to avoid major constitutional challenges to the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws.
Abstract: Constitutional avoidance is an old idea, but the Roberts Court has given it a new twist. Instead of avoiding constitutional questions whenever possible, recent Supreme Court majorities have tended to engage in avoidance just once before issuing disruptive decisions. For example, the Roberts Court initially ducked constitutional challenges to central pillars of the Bipartisan Campaign Reform Act and the Voting Rights Act. But when those measures came before the Court for a second time, they were both struck down as unconstitutional, despite their importance and bipartisan support. A similar pattern of limited deferral may be visible in other recent cases, as the Roberts Court has taken a pass on its first opportunities to strike at the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws. This emerging use of constitutional avoidance might be called “the doctrine of one last chance.” Under this doctrine, the Court must signal its readiness to impose major disruptions before actually doing so. Put more colorfully, the doctrine of one last chance is avoidance on steroids, but with an expiration date. The result is a practical rule of judicial decision-making — an attempt not just to extol the dueling virtues of judicial action and restraint, but to balance them. And the balance is attractive. Here as elsewhere, there is good reason to afford notice and postpone decision before causing massive and potentially unexpected disruptions. Still, the doctrine should give us pause: by facilitating major legal change, the doctrine of one last chance converts a cornerstone principle of judicial restraint into a playbook for judicial action.

Posted Content
TL;DR: The Citizens United v. Federal Election Commission (CECFCC) decision as mentioned in this paper has been used to influence pending challenges to the Patient Protection and Affordable Care Act (ACA) and a host of cases to come.
Abstract: This Essay explores a distinct way Citizens United v. Federal Election Commission promises to influence pending challenges to the Patient Protection and Affordable Care Act (ACA), and a host of cases to come. Specifically, the way Citizens United approached precedent will likely affect, and radiate well beyond, the current ACA challenges. Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. While this is not an entirely new move for the Court, the contribution of Citizens United was to normalize this disconcerting stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains why it is cause for deep concern.

Journal Article
TL;DR: The Court's free speech jurisprudence is characterized by a complex web of doctrines, exceptions, and exceptions to the exceptions, which leads to unpredictable and inconsistent rulings as discussed by the authors.
Abstract: This Essay concerns the Supreme Court's free speech rulings, which do not take a textualist approach. Instead, the Court draws and builds upon a large body of precedents, which contain and reflect a complex web of doctrines, exceptions, and exceptions to the exceptions. Likewise, the Court uses a varying mix of analyses. Not surprisingly, this leads to unpredictable and inconsistent rulings. To support these conclusions, this Essay will quote two federal judges from opposite ends of the ideological spectrum. First, Ninth Circuit Judge Marsha Berzon has said of free speech cases, lower court judges "do what [they] want because that's what" the Supreme Court does. (1) Justice Clarence Thomas agreed in Morse v. Frederick, (2) a case where the Court carved out yet another exception to the free speech rights that it had upheld for public school students in the landmark Tinker case. (3) Justice Thomas summed up the Court's rulings on point this way: "students have a right to speak in schools except when they do not." (4) Alas, Justice Thomas's summary applies not only to students, but also to the rest of us. In a recent article, First Amendment scholar Ron Collins documented forty-eight distinct exceptions to speech protection that the Court has either created or continued to enforce during the past several decades under the leadership of Chief Justices Rehnquist and Roberts. (5) In another recent article that analyzes all the free speech rulings of the Rehnquist-Roberts Court, Professor David Kairys concluded that this case law entails "an incoherent tangle of rules, doctrines, distinctions, and results that lacks cohesive principles or themes. Functionally, it provides an easy basis for either vindicating or rejecting any plausible free speech claim." (6) Despite its many inconsistencies, the Court's free speech jurisprudence does reflect some noteworthy general patterns, and this Essay will outline those that I consider to be the most important and interesting. Overall, I want to highlight what this Essay will call the "dark side" of the Court's free speech rulings, dark both in the sense that they are negative for free speech and in the sense that many people are unaware of them. The conventional wisdom is that this Court has been very speech protective, and it certainly has issued some important decisions that strongly protect controversial types of expression. For example, in the last three years, the Court has held that the Free Speech Clause protects corporate and union campaign expenditures, (7) videos depicting cruelty to animals, (8) protestors spouting hate speech near military funerals, (9) violent video games sold to minors, (10) lies about having received military honors, (11) and the nonconsensual disclosure of doctors' prescriptions to pharmaceutical marketers. (12) These rulings have understandably drawn a lot of attention, but viewed in isolation, they do not give an accurate impression of the Court's overall free speech jurisprudence. Several recent analyses have aimed to do precisely that, and they belie the conventional wisdom about the Court's alleged speech protectiveness. For example, Adam Liptak of the New York Times wrote about an analysis of the Court's free speech cases from 1953 to 2011 under Chief Justices Warren, Burger, Rehnquist, and Roberts; the study concluded that the Roberts Court hears fewer such cases and rules in favor of free speech at a lower rate than all three prior Courts. (13) Likewise, other studies have documented the following patterns in the Roberts Court's rulings: it rejects free speech claims much more often than it upholds them; in many cases in which it upholds free speech claims, it does so by votes of 9-0 or 8-1; and it affirms the lower court rulings when there was no circuit split, indicating that these were easy cases. (14) Conversely, in many cases in which the Court rejects free speech claims, it does so over strong dissents and overturns lower courts, (15) indicating that it is ignoring or cutting back on speech-protective precedent. …

Posted Content
TL;DR: The evolution of the prudential branch of standing doctrine, its impact on standing doctrine and judicial review, and its future in light of these recent opinions are examined in this paper, where the authors examine the evolution and impact of the standing doctrine on judicial review.
Abstract: Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing either, but it recognized that the question is complex and left its resolution for another day.This article examines the evolution of the prudential branch of standing doctrine, its impact on standing doctrine and judicial review, and its future in light of these recent opinions.

Posted Content
TL;DR: This article reviewed U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers and found that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract.
Abstract: This comment reviews U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers. It finds that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. But since the Reagan years, a more conservative Court has undertaken to curtail governmental activity in general, and to limit federal, state, and local planning in particular. A number of 5-4 decisions expanded private property rights and contracted the scope of the federal “commerce power.” The comment considers whether today’s Roberts Court is composing a “requiem for regulation.”

Posted Content
TL;DR: In this paper, the authors track the development and consequences of the Implied Exemption doctrine and conclude that, given the chance, the Roberts Court will uphold it and evaluate its impact on agency behavior and offer modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.
Abstract: Forty years ago, in Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma, the Supreme Court reserved a critical question that the federal courts have endeavored to answer. In so doing, the lower courts forged the novel common law doctrine of “implied exemption,” which releases agencies from National Environmental Policy Act obligations when they undertake “non-discretionary” actions. This Article tracks the development and consequences of this largely unnoticed but influential doctrine and concludes that, given the chance, the Roberts Court will uphold it. It also evaluates the doctrine’s impact on agency behavior and offers modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.