Showing papers on "Roberts Court published in 2015"

Race-conscious but race-neutral: the constitutionality of disparate impact in the roberts court

Abstract: Ricci v. DeStefano, the New Haven firefighters case, raised questions about the constitutionality of the disparate impact provisions of federal employment discrimination law. This Article draws on the Court’s subsequent decision in Fisher v. University of Texas at Austin to clarify disparate impact’s constitutionality. In Fisher, no Justice expressed concern about Texas’s decision to promote diversity at the state university by admitting the top percent of the state’s high school graduates — state action that is race-conscious in purpose, but race-neutral in form. Approval of the percent plan in Fisher shows that under equal protection law of the Roberts Court disparate impact law is not unconstitutional in purpose, as Justice Scalia suggested in Ricci. In Fisher, the Court has demonstrated that government may change the selection standards in competitive processes without triggering strict scrutiny if the government acts (1) with a race-conscious goal of promoting equal opportunity; (2) the government requires a selection standard that is appropriate for the context; and (3) the standard does not classify individuals by race. These principles are satisfied in the ordinary case of voluntary disparate impact compliance in which an employer specifies conditions for employment in advance of evaluating applicants for the job in question, as well as in prospective remedies that courts ordinarily order for violations of Title VII.Fisher clarifies that the problem in Ricci was New Haven’s procedurally irregular means of complying with disparate impact law: the government discarded the test results of a group of applicants who had invested significant time in studying for a promotion exam, and explained this decision in terms which left the disappointed applicants with the impression that government was discarding their scores to advance the interests of another racially defined group. By avoiding a constitutional judgment and finding New Haven’s manner of complying with the statute unlawful disparate treatment, Justice Kennedy warns that interventions designed to heal social division should be implemented in ways that endeavor not to aggravate social division.Disparate impact law can promote equal opportunity, increase employee confidence in the fairness of selection criteria, and so reduce racial balkanization; but for disparate impact law to do so, Justice Kennedy seems to be saying in Ricci, disparate impact law needs to be enforced with attention to all employees’ expectations of fair dealing.

Freedom of Speech in US Supreme Court Justices’ Opinions: Political Speech Protection as Applied by the Roberts Court

Abstract: This study seeks to reveal whether certain patterns can be traced in the current US Supreme Court decisions pertaining to First Amendment protection of speech. It reviews how the Roberts Court applied the philosophy of effective self-governance and its principles in its speech-related decisions and looks at what opinions were provided by the majority, and concurring and dissenting Justices. The study shows that the Roberts Court seems to be especially prone to arguing its holdings in terms of political speech values and especially protective of political speech as applied to the cases concerning campaign funding.

Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn but with Speed Bumps and Surprising Twists

Abstract: This Essay describes the path of election law jurisprudence in the Roberts Court and then considers two questions. First, what explains why the Court, while shifting in a strongly conservative direction, had not moved more extremely to the right? Second, what options has the Court left for election reformers who are unhappy with the strongly conservative, although not maximally conservative, status quo?On the first question, a combination of factors appears to explain the trajectory and speed of the Roberts Court’s election law decisions. The Roberts Court had been fundamentally conservative, but for jurisprudential, temperamental, or strategic reasons, Justices who have held the balance of power appear to prefer incrementalism to radical change. Mandatory appellate jurisdiction appeared the best way to force the Roberts Court’s hand, and it often but not always led to a conservative result. Nearly half of the Roberts Court’s election cases came on mandatory jurisdiction. Finally, the five conservative Justices were not monolithic in their views and are capable of surprise.On the second question, the Court had left very limited space for reform in certain areas, such as campaign finance. Where the Court has greatly constrained choice, only minor improvements are possible absent a change in the Supreme Court’s personnel. In these areas, the problem is not that reformers have a “romanticized” vision of democracy; it is that the structural impediments erected by the Court have hobbled meaningful reform efforts. In contrast, in areas in which the Court has mostly left room for decentralized election law approaches, such as in the arena of election administration, election fights are becoming both legal and political. Much of the space for reform efforts depends upon the future composition of the Court.Part I briefly describes the path of election law in the Roberts era across key election law areas including campaign finance, voting rights, and election administration. Part II explains why the Roberts Court was deeply conservative but not consistently maximalist. Part III considers the space for election reform in the Roberts Court era and beyond.

An Elastic Amendment: Justice Stephen G. Breyer's Fluid Conceptions of Freedom of Speech

Abstract: III. CONNECTING THE DOTS: DISCERNING TRENDS AND PATTERNS WITHIN JUSTICE BREYER'S FREEDOM OF SPEECH JURISPRUDENCE The preceding section reviewed some of the most challenging, controversial, and divisive freedom of speech disputes to come before the Court during Justice Breyer's tenure on the bench. While it is impossible to gain a perfect picture of any jurist's jurisprudence within twenty-seven cases, the decisions examined here provide at least a representative sampling of Breyer's voting and writing within this area of the law. This article now moves to a discussion of Breyer's noticeable trends, patterns, and inclinations within these cases, and an evaluation of the significance of these tendencies in the Court's freedom of speech picture as a whole. A. Overall Record In the cases examined here, Breyer voted fourteen times in favor of upholding the government's stated interests in restricting speech. (629) He voted twelve times in favor of upholding the speech at issue over the government's asserted interests in stopping that speech. (630) Lastly, he voted once to not address the speech issue at all, but rather to decide the case on grounds that did not require a judgment on the speech interests versus regulatory interests debate. (631) Of his fourteen votes in which Breyer determined that the regulatory interests outweighed the speech interests in the case at hand, seven of those votes sided with the dissenters in that decision. (632) Four of those votes were concurring opinions. (633) Only three of those votes were with the majority or controlling plurality holding in the case. (634) Of his twelve votes upholding the speech interest over the purported regulatory interests, four were dissents. (635) Four were concurring opinions, (636) and four were with the majority or controlling plurality's opinion in the case. (637) For a justice whom some commentators deem to be clearly "liberal" and whom other commentators deem to be clearly "conservative," (638) this is a surprisingly even voting distribution as to the results in cases where freedom of speech is at issue. This demonstrates that Breyer is no absolutist when it comes to evaluating freedom of speech matters. Certain Supreme Court justices, such as Hugo Black and William O. Douglas, routinely stated that the first words of the First Amendment--"Congress shall make no law"--indeed restricted Congress from passing legislation limiting the freedoms guaranteed within this amendment, including the freedom of speech, in most circumstances. (639) Some scholars observe a similar trend toward absolutism regarding freedom of speech within the present-day Roberts Court. (640) Yet Breyer, based on this sampling, does not fall into this category, although the fact that half of his "pro-restriction" votes studied here were dissents indicates that some of his fellow justices do indeed take a far more absolutist stance regarding protecting the freedoms of speech and expression. (641) On the other hand, Breyer frequently found situations in which, in his estimation, individual liberties outweighed the government's interests in restricting speech. Therefore, a more nuanced discussion of when Breyer determined that freedom of speech rights outweighed governmental interests is necessary to fully understand this justice's jurisprudence. B. An Outspoken Voice on Free Speech Breyer authored a signed opinion in twenty-two of the twenty-seven cases studied in this article. (642) Eleven of these signed opinions were dissents. (643) Eight were concurring opinions. (644) Only three represented the majority or controlling plurality opinion of the Court. (645) From these numbers, one can reasonably infer that freedom of speech is a topic that Breyer finds particularly important. Assuming that a justice will generally author a signed opinion--particularly a dissent or a concurring opinion--only on those issues about which he or she feels particularly fervent, the fact that Breyer wrote signed opinions in all but five of these twenty-seven cases demonstrates that this is an area in which he holds especially strong views. …

The Keyes to Reclaiming the Racial HistoryOf the Roberts Court

Abstract: This article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today. The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States - legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity. The article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black-White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer fully describe the current reality of shifting and transforming patterns of race relations in the United States. In order to reclaim the history of race from the Roberts Court, the article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first Supreme Court case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyesand the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.

Introduction to AGORA: Reflections on Zivotofsky v. Kerry

Abstract: AJIL Unbound is pleased to publish an Agora on the Supreme Court’s recent decision in Zivotofsky v. Kerry (Zivotofsky II).1 This highly anticipated separation-of-powers decision addresses the validity of congressional action alleged to intrude upon the President’s exclusive power to recognize foreign sovereigns. The petitioner in Zivotofsky was born in Jerusalem and wished to have his birthplace designated on his passport as “Israel.” Because the Executive branch does not recognize any country’s sovereignty over Jerusalem, the birthplace of U.S. citizens born in Jerusalem has been designated on their passports as “Jerusalem.” In 2002, Congress passed a statute entitling persons born in Jerusalem to have “Israel” designated in their passports as their place of birth. At issue in the case was the validity of this statute. In an earlier decision, Zivotofksy v. Clinton (Zivotofsky I),2 the Court held that the question of the validity of the statute did not present a nonjusticiable political question. This symposium focuses on the merits decision, Zivotofsky II, decided on June 8, 2015. The majority, in an opinion by Justice Kennedy, held that the President’s power to recognize foreign sovereigns is exclusive and that Congress’ statute unconstitutionally interfered with that power. Chief Justice Roberts and Justice Scalia wrote dissents, which Justice Alito joined. Both dissents expressed skepticism about the majority’s conclusion that the President’s recognition power is exclusive, but, in the end, both dissents rested on the conclusion that the statute Congress had enacted did not unconstitutionally interfere with that power. (Justice Thomas largely concurred with the majority, albeit on other grounds.) The first set of essays in this Agora offer diverse insights into a variety of aspects of the opinions in the case. Our contributors from Philadelphia—Peter Spiro of Temple University Beasley School of Law and Jean Galbraith of the University of Pennsylvania School of Law—both note that the majority opinion departs from earlier decisions that had led some scholars to claim that the Roberts Court was “normalizing” Foreign Relations Law. Spiro frames this departure as a temporary retreat from normalization, while Galbraith sees value in the uncertainty produced by the departure. The contribution by Harlan Cohen of the University of Georgia School of Law examines the competing visions of foreign relations law reflected in the opinions of Justice Kennedy’s and Chief Justice Roberts—the first highly functionalist and the second highly formalist—and the role those visions may be playing across the Court’s foreign relations law jurisprudence. The contribution by Curtis Bradley of Duke Law School focuses on what the majority opinion in Zivotofsky tells us about the importance of historical practice in constitutional interpretation, particularly in the field of Foreign Relations Law, and also describes tensions between a custom-based approach to the separation of powers and the institution of judicial review. A second set of essays will follow shortly after.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

Abstract: This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have assumed a distinctly ideological flavor. Preemption cases are much more likely to be contested than they were in earlier decades; and in those cases, once-rare judicial bloc voting has become common.

Liberty or Equality

Abstract: This paper was presented as the Seventh Annual Anthony Kennedy lecture at the Lewis & Clark School of Law on September 23, 2015. My topic was Justice Kennedy's majority opinion in the recent Obergefell case, recognizing a constitutional right to same-sex marriage. In the first part of my lecture, I placed the Obergefell opinion in context, taking into account Justice Kennedy's place on the current Court, and his past jurisprudence. In particular, I noted that while Justice Kennedy is undoubtedly the co-called "swing Justice" on the Roberts Court, he is quite different from past swing Justices such as Sandra Day O'Connor and Lewis Powell. The latter were considered to be moderate pragmatists, lacking strong judicial philosophies. Not so for Justice Kennedy. From his first years on the Court, his jurisprudence has been notable for a passionate commitment to Liberty in all of its aspect, and his firm belief that protection for Liberty is intrinsically tied to protection of individual Dignity. This commitment appears in his privacy jurisprudence of course (culminating in Obergefell), but also in other areas including notably free. Moreover, unlike his colleagues, Justice Kennedy's commitment to liberty transcends political boundaries, encompassing such "liberal" Liberty claims as abortion and the free speech rights of pornographers, and such "conservative" claims as property rights and commercial speech. I then raised some doubts about the reasoning in Obergefell. I noted that the plaintiffs in the case had raised both Due Process (i.e., Liberty), and Equal Protection (i.e., Equality) claims, and the Court's formulation of the questions presented preserved both. Yet Kennedy's opinion is almost all Liberty, with a tiny dollop of Equality. I suggested that this emphasis is probably a product of Kennedy's own preferences and comfort levels. While Justice Kennedy has always been a strong advocate of Liberty claims, his relationship to Equality is more ambivalent. He unquestionably is firmly committed to nondiscrimination principles, and even (unlike his conservative colleagues) committed to racial integration. However, he has demonstrated -- notably in the Parents Involved decision -- grave discomfort with policies that classify individuals based on qualities such as race. Indeed, this discomfort ties into his commitment to Dignity, because he sees such typecasting as itself in consistent with individual Dignity. As a consequence, Liberty must have seemed the easier path to take.Ultimately, however, I do believe this choice was a mistake, for several reasons. First, I think that jurisprudentially, Equality is the stronger argument. The Court's entire substantive due process jurisprudence, which was the basis of the Due Process holding in Obergefell, rests on somewhat shaky foundations, given its lack of textual grounding. Equal Protection, on the other hand, is a well-established, textually based doctrine; and the argument for extending heightened scrutiny to discrimination against LGBT individuals strikes me as extremely powerful, under existing precedent. Second, an Equality based holding would have been broader, granting more protections to sexual minorities than a narrow decision focused on marriage. Third, it is possible that an Equality based holding would have generated less intense opposition than a holding that redefines marriage (though this is admittedly speculative). Finally, I also believe that Justice Jackson was correct in his argument, in the Railway Express case, that in a democracy, equality-based constitutional decisions are generally preferable to liberty-based ones, because they interfere less with legislative authority.

Free Expression, In-Group Bias, and the Court's Conservatives: A Critique of the Epstein-Parker-Segal Study

Abstract: In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical studies of the Court) or from a failure to take seriously the importance of attending to cases’ details. Whatever the difficulties’ sources, the study’s uniform indictment of the Court’s current conservatives is manifestly flawed. More broadly, the study and its largely uncritical public reception -- as well as the authors' initial response to this critique of their work -- offer important cautionary lessons not only for those who study in-group bias, but also for all who conduct or rely upon empirical analyses of the justices’ ideological voting patterns.

Appointments, Innovation, and the Judicial-Political Divide

Abstract: The federal appointments process is having its proverbial day in the sun. The appointment and removal of federal officers figured centrally in the Supreme Court’s two major recent separation-of powers decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board and National Labor Relations Board v. Noel Canning. The appointments process has featured even more prominently in the political sphere, figuring in a number of congressional-presidential confrontations. Such simultaneous top billing in the judicial and political spheres is hardly coincidental. After all, it was President Obama’s use of the Recess Appointments Clause in response to pro forma sessions that triggered the Court’s engagement with the Clause in Noel Canning. But the relationship between the Clause’s judicial and political manifestations is more complicated, and more fraught, than mere practical causality. The Roberts Court’s approach to appointments and separation of powers issues stands out for its Burkean resistance to innovation. By contrast, the dominant characteristic of appointments in the political sphere is novelty and embrace of new institutional arrangements.This Article explores these differing judicial and political approaches to innovation, and the implications of the emerging contrast for federal administration. Although the Court’s resistance to innovation might appear a useful prophylactic against efforts to bend the Constitution in the name of political expediency, the constitutional basis for such a general suspicion of innovation is lacking. Particularly given the political transformations occurring in response to polarization, a stance of suspicion sets the Court on a course of confrontation with the other two branches that is hard to justify. A more nuanced approach that pays greater attention to political reality would allow the Court to both better titrate its interventions to constitutional structure and minimize the disruptive effects of its decisions.

Securities Litigation in the Roberts Court: An Early Assessment

Abstract: This Article provides an early assessment—both quantitative and qualitative—of the Roberts Court’s securities-law decisions. While the Roberts Court has continued to take an average of one to two securities-law cases per year, such cases represent an increased share of the Supreme Court’s docket, compared to prior Courts, because its overall docket has shrunk. The Roberts Court has maintained the same overall split in “expansive” or “restrictive” outcomes as the post-Powell Rehnquist Court, but has 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. This Article shows a newly heightened role for procedure and a resistance to bright-line rules, with procedural decisions more restrictive and rejections of bright-line rules more expansive, factors that predict outcomes for cases argued in the October 2014 term, and the types of cases likely to attract the attention of the Court in the future. 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 that stretches beyond the limited reach of securities law.

THE CEO AND THE HYDRAULICS OF CAMPAIGN FINANCE DEREGULATION[dagger]

Abstract: -Voters increasingly view their consumer activities, not their campaign contributions, as the most meaningful way to participate in politics. In 2014, after it became public that Mozilla's CEO, Brendan Eich, had made a controversial political donation in a state ballot proposition, consumer pressure led to his resignation. Eich's downfall and the politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Supreme Court has failed to anticipate. This Essay explores what "economic reprisal" means for business leaders-a significant segment of the so-called "donor class"-when consumers vote at the cash register.INTRODUCTIONIn the Supreme Court's most recent campaign finance case, McCutcheon v. FEC, a bare majority of the Court struck down aggregate contribution limits for individuals.1 Whereas an individual's total campaign contributions in a given two-year federal election cycle were previously limited to $123,200, individuals may now give as much as $3.6 million.2 McCutcheon has been praised for pushing campaign cash away from "shadow money" nonprofits and into the sunshine of disclosure because it clears the way for donors to give large amounts to an unlimited number of candidates-a type of spending that is subject to disclosure obligations, unlike donations to 501(c) nonprofit groups.3 According to this line of thinking, deregulation not only increases the total amount of speech in the marketplace of ideas, but also tends to increase transparent speech. Chief Justice Roberts, writing for the plurality in McCutcheon, conveyed this idea when he wrote that aggregate limits "may in fact encourage the movement of money away from entities subject to disclosure."4 Indeed, Professors Samuel Issacharoffand Pamela S. Karlan made just this contention sixteen years ago.5Though the phrase "hydraulic effects" appears nowhere in McCutcheon's plurality, concurring, or dissenting opinions, the case should be understood as endorsing a particular view of how political money is like water. As Professors Issacharoffand Karlan famously put it: "[E]very reform effort to constrain political actors produces a corresponding series of reactions by those with power to hold onto it,"6 and "[t]he price of apparent containment may be uncontrolled flood damage elsewhere."7 In other words, regulations that limit or reduce certain types of electionrelated spending simply channel the money in other directions.Unfortunately, the "deregulate and disclose" approach of the Roberts Court is unlikely to solve the hydraulics problem that frustrates courts and law professors. Wealthy Americans are unlikely to respond to McCutcheon as the Chief Justice leads us to believe, by directing a greater proportion of their cash away from "shadow money" and into the sunlight of candidate contributions.An important piece of evidence emerged within days of the McCutcheon opinion. On April 3, 2014, Brendan Eich resigned after only two weeks as CEO of Mozilla, after public controversy developed over the fact that, six years earlier, he gave $1000 to support Proposition 8 in California, which banned same-sex marriage.8 Mr. Eich now stands as the first CEO in America to have been forced out of his job because of a publicly disclosed campaign contribution.9 The story of Brendan Eich teaches that campaign donations by corporate CEOs (and, importantly, those aspiring to be CEOs) will be scrutinized by customers, employees, business partners, and shareholders, even many years after they are made, and that publicly disclosed donations may ruin a donor's future employment prospects as chief executive.10 For this reason, CEOs and aspiring CEOs should rationally prefer to give in secret, and the premise of the Chief Justice-that allowing the wealthy to greatly increase the amount they can give directly to candidates will cause them to rechannel their funds away from "shadow money" organizations toward transparent, disclosing organizations-is likely wrong. …

The Roberts Court and Criminal Justice: An Empirical Assessment

Abstract: An empirical examination of decisions by the Roberts Court can illuminate the contemporary Supreme Court’s impact on criminal justice. The Court’s decisions and the voting patterns of its justices confirm the Roberts Court’s generally conservative reputation with respect to criminal justice. However, contrary to commentators’ assertions about a five-member conservative majority actively reshaping criminal justice law in a rights-restricting fashion, the deeply-divided Court actually produces a notable number of rights-protective liberal decisions. Indeed, when the Roberts Court is most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record places him at the Court’s center. Justices Antonin Scalia and Clarence Thomas have also made important contributions to liberal decisions in divided cases. Generalizations about the Roberts Court’s conservatism and judicial activism in criminal justice are overstated without recognition of the voting patterns that have contributed to the production of rights-maintaining and rights-expanding liberal decisions.

The Brave New World of Party Campaign Finance Law

Abstract: The Article challenges urgent calls for the de-regulation of party campaign finance as part of the ongoing transformation of federal campaign finance law under the Roberts Court. First, on the legal front, the Article presents a new constitutional approach to campaign finance corruption that builds on the basic premise that what can be plausibly exchanged between an individual contributor and individual officeholder, can similarly be exchanged between a contributor and a group of officeholders, who agree to coordinate. This intuition about collective quid pro quo corruption stays faithful to the basic conception of the quid pro quo exchange as its defining harm, just as the Roberts Court insists, but allows for pragmatic sensibilities about a campaign finance system in which officeholders and candidates are thoroughly interconnected in both campaign finance and lawmaking by their party ties. Second, on the policy front, the Article engages normative appeals to de-regulate party campaign finance and centralize campaign finance in the parties as a response to the rise of Super PACs and other outside groups. I skeptically assess the consequences of de-regulating party campaign finance and argue that campaign finance law should re-discover central concerns about distributional representation, rather than focusing too narrowly on the balance of power among party elites.

Barriers to Entry and Justice Ginsburg’s Criminal Procedure Jurisprudence

Abstract: This chapter in "The Legacy of Ruth Bader Ginsburg" reconsiders Justice Ginsburg’s understated but important contributions to constitutional criminal procedure She is best known for her leadership — as an advocate, scholar, judge, and justice — on gender equality In criminal procedure cases, Ginsburg’s legacy appears less significant, but some common commitments to fairness emerge from her opinions This essay suggests a connection between Ginsburg’s advance of “equal citizenship stature” and her efforts to remove systematic barriers to entry that preclude full participation in criminal adjudication She has highlighted the due process obligations of prosecutors, demanded adequate representation of defendants, expanded the right to confront witnesses, and increased the jury’s role in sentencing determinations As with her approach to remedying unfairness in discrimination cases, Ginsburg has insisted that the government has an affirmative obligation to provide equal access and fair process

Agora: Reflections on Zivotofksy v. Kerry: Presidential Signing Statements and Dialogic Constitutionalism

Abstract: When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotojsky v. Kerry (Zivotojsky lI), Jack Goldsmith hailed the decision as a "vindication" of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the "constitutionally ludicrous" work of an overreaching, "imperial presidency." Others in this Symposium and elsewhere have covered what a "bonanza" Zivotojsi II is for foreign relations law, the competing visions of foreign relations at the case's center, the justices' reliance on historical practice in constitutional interpretation, and the ways in which the opinion departs from or reinforces the Roberts Court trend toward "normalizing" foreign relations law.Building on these themes, the focus of this essay is on how Zivotojsi II demonstrates the role that presidential signing statements can play in facilitating inter-branch dialogue, as a means of promoting clarity, cooperation, and compromise in constitutional interpretation. Notwithstanding my earlier criticism of specific signing statements in the context of the treatment of terror suspects -- a position I maintain today based on my disagreement with the substance of those statements -- I am not against signing statements per se.In fact, I agree with Goldsmith that "[s]igning statements are not in themselves cause for concern....Poor interpretations of Article II articulated in a signing statement can be a cause for concern -- especially in the rare signing statement that leads to non-compliance." Criticism of signing statements are often really debates about the proper reach of presidential power. Zivotojsky II provides an opportunity to assess the value of signing statements in a different light and to build on my earlier work on dialogic approaches to the Constitution.

Justice Scalia's Hat Trick and the Supreme Court's Flawed Understanding of Twenty-First Century Arbitration

Abstract: The Supreme Court has decided more than two dozen cases under the Federal Arbitration Act (FAA) since 2000 – arising primarily from commercial, consumer, employment, or securities disputes. Those decisions, particularly those interpreting FAA §2, have contributed to the Court’s modern arbitration jurisprudence that creates a strong national policy favoring arbitration, enforces agreements to arbitrate against virtually any defense, pushes many individual claims into arbitration against the will of one or more parties, and suppresses other claims, particularly those of small dollar value. Yet, those decisions describe the arbitration process as practiced when Congress enacted the FAA in 1925; not the process as practiced in the twenty-first century. This paper explores the dichotomy between the Supreme Court’s theoretical understanding of arbitration on which its FAA jurisprudence is based and the reality of the current and varied practice of arbitration. This paper identifies language from recent Supreme Court arbitration cases to demonstrate that the Court’s current depiction of arbitration is oversimplified and out-of-date. The Court’s uninformed and out-of-touch decisions have crafted a legal framework regulating an arbitration process that largely no longer exists.This paper argues that the Court’s flawed understanding of arbitration has fueled its misinterpretation of the FAA, harmed disputants and contributed to the widely-held perception that arbitration is unfair. This, in turn, has led to a shift away from arbitration as a favored method of dispute resolution for those who have a choice, while forcing the process on those without a choice.

The Fragmentation of Standing

Abstract: IntroductionRecent years have witnessed the accelerated fragmentation of standing into a multitude of varied, complexly related subdoctrines. Scarcely a Term goes by without the Supreme Court deciding one or more high-profile standing cases.1 Yet the Court's decisions have done little to enhance clarity in this contentious corner of constitutional law. To be sure, the problem of standing's fragmentation did not begin with the Roberts Court. Since the Court began in the 1970s to characterize standing as turning almost entirely on a single, transsubstantive, tripartite test-requiring showings of injury in fact, causation, and redressability2-commentators have complained about inconsistencies and anomalies in application.3 Over time, however, the grounds for objection and occasional befuddlement have grown, not diminished, as more controversial cases upholding standing have taken their places alongside more controversial decisions denying it.The fragmentation of standing-as I shall presently seek to describe it-has regrettable current consequences, involving complexity and confusion, but it also contains a latent potential for positive development. However opaque or inadequate the Supreme Court's opinions, over time its cases have formed patterns. As I shall explain in considerable detail, those patterns are complex, and the Court has often failed to describe-much less justify-them as such. But there are patterns nonetheless. Once identified, those patterns frequently exhibit an implicit normative logic that not only enables predictions, at least by legal experts, but also gives definition to the law that lower courts are obliged to apply. Although it is increasingly bootless to seek general rules governing standing to sue in federal court-at least beyond the frequently empty standards of injury, causation, and redressability-we can often achieve a good deal of clarity if we ask which rules apply to particular plaintiffs seeking particular forms of relief under particular constitutional or statutory provisions.4Among my central ambitions in this Article is to describe both the negative or confusion-generating and the positive or pattern-reflecting aspects of the fragmentation of standing. But my aims go beyond description. Through its several parts, this Article also pursues analytical, diagnostic, and prescriptive goals. It aims to enhance understanding of standing doctrine and the dynamics that have given it its present shape. The Article also aspires to promote realistic doctrinal reform, tailored in recognition of the sometimes unyielding factors that have occasioned standing's fragmentation.Part I provides relevant background. It offers a brief sketch of the modern history of standing doctrine, emphasizing the conceptual unity that the Supreme Court promised in the 1970s when it promulgated the apparently simple, tripartite, transsubstantive formula that makes standing invariably depend on injury in fact, causation, and redressability.Part II-which develops the Article's central descriptive theses- traces the accelerating trend toward doctrinal fragmentation, especially in decisions of the Roberts Court. On the one hand, Part II demonstrates the failure of the Court's three-part formula to explain the results that it often reaches. On the other hand, it identifies complex patterns in the Court's decisions, albeit ones that the Court has not always identified as such. In effect, Part II furnishes a re-mapping of the present law of standing.Part III advances the argument, which I expect to be uncontroversial, that the mixture of complexity and lack of articulate explanation that characterizes much of current standing doctrine is regrettable from all perspectives. But Part III marks a step along the path of inquiry, not an ultimate pronouncement. It lays the foundation for further diagnostic and prescriptive analysis.Part IV draws heavily on insights from the social sciences in identifying multiple and overlapping causes for standing's increasing fragmentation. …

Recognizing the Limits of Antitrust: The Roberts Court Versus the Enforcement Agencies

Abstract: As Judge Frank Easterbrook famously explained three decades ago, antitrust is an inherently limited body of law. In crafting and enforcing liability rules to combat market power and encourage competition, courts and regulators may err in two directions: they may wrongly forbid output-enhancing behavior or wrongly fail to condemn output-reducing conduct. The social losses from false convictions and false acquittals, taken together, comprise antitrust’s “error costs.” While it may be possible to reduce error costs by making liability rules more nuanced, added complexity raises the “decision costs” incurred by business planners (ex ante) and adjudicators (ex post). In light of all these costs, Easterbrook advocated an approach that would optimize antitrust’s effectiveness: interpret and enforce the antitrust laws so as to minimize the sum of error and decision costs.This Article assesses the degree to which the U.S. Supreme Court (under the leadership of Chief Justice John Roberts) and the federal enforcement agencies (the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice) have embraced the optimizing, “limits of antitrust” approach Judge Easterbrook advocated. In its decisions addressing vertical restraints, exclusionary conduct, and antitrust enforcement, the Roberts Court has consistently recognized antitrust’s limits and has adopted rules consistent with an optimizing approach. The enforcement agencies, by contrast, have eschewed a limits of antitrust approach, at least with respect to exclusionary conduct, vertical restraints, intellectual property rights, and merger review.

Rights, Remedies, and the Quantum and Burden of Proof

Abstract: It is tempting to commemorate the 2014 centenary of the exclusionary rule by celebrating our historically progressive role in constitutional rights protection, but those familiar with the facts know that Fourth Amendment violations persist unabated. As New Yorkers consider Judge Scheindlin’s damning assessment of police stop-and-frisk practices, and the country erupts in protests following fatal police encounters, are legal scholars who continue to pontificate on constitutional bona fides addressing “real” Fourth Amendment questions? Traditional academic abstraction and artificial doctrinal divides obscure the fact that rights and remedies are defined by their operation. Constitutional rights have no value if, after they have been violated, meaningful remedies are unattainable. This Article focuses instead on the functional relationship between rights and remedies and on *90 new constraints imposed by judicial recalibrations of the quantum and burden of remedial proof. The Roberts Court’s recent shotgun wedding linking exclusion to defense evidence establishing police officer “bad faith” or systemic police negligence illustrates the centrality of proof and evidence questions. Over the past few years, the Court has increased the quantum of defense suppression proof while simultaneously eliminating burden shifting to the prosecution. These shifts make most Fourth Amendment violations irremediable. It is not feasible to demand that defendants aggregate data establishing systemic police negligence. Defendants who seek, in the alternative, to prove that an illegal search was committed knowingly, recklessly, or with gross negligence invariably lack direct evidence of police officer intent. By changing the rules governing suppression under the guise of a narrow focus on deterrence, the Roberts Court has ensured that nearly all illegally seized evidence will be admitted. The only time evidence will be suppressed is when a defendant can prove circumstantially that police misconduct was so patently egregious that defense evidence supports a judicial inference of police “bad faith.” In theory, the Roberts Court has quietly erased a century of exclusion jurisprudence while eliding accountability for more overt action. In practice, if suppression is only available to defendants who can prove flagrant police “bad faith,” the Court has effectively resurrected the old due process “shocks the conscience” exclusion standard. New decisions illustrating the type of police behavior that can support an inference of bad faith under include patently race-based seizures, near-suspicionless repeated rectal searches, and (in a truly unforgettable case) the curbside excision of contraband from a suspect’s penis performed by the arresting officer. The full impact of increasing the quantum and reallocating the burden of proof is fully revealed in recent empirical studies demonstrating that illegally seized evidence is now routinely admitted. Prosecutors’ new, easy access to this evidence following warrant-based and warrantless searches will transform not just the small number of cases that go to trial, but plea calculations in every case where evidence was previously excludable on Fourth Amendment grounds.

Civil-izing Federalism

Abstract: When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the Court generally votes in favor of robust states’ rights, while the conservative wing votes to impose defendant-friendly federal rules in civil litigation or to require plaintiffs to proceed in relatively hostile federal courts. This Article is the first to focus on the Roberts Court’s treatment of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices’ stances in procedural cases and their federalism commitments is due, at least in part, to the Justices’ understandings of the purposes for, and effectiveness of, the federal civil litigation system. By examining the Justices’ narratives about civil litigation, the Article demonstrates that even as they invoke the language of federalism, the Justices’ positions in procedural cases correlate with the civil litigation interests they seek to protect: business interests for the conservative Justices and access to justice for the liberal Justices. This Article concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the Article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedural jurisprudence that is deferential to states in private civil litigation is likely to create greater access to the courts and thus a more just civil litigation system.

Religious Accommodation in the Workplace: Why Federal Courts Fail to Provide Meaningful Protection of Religious Employees

Abstract: In June 2015, the United State Supreme Court decided EEOC v. Abercrombie & Fitch, its first case involving an employee’s right to religious accommodation in the workplace since 1986. While Abercrombie is the latest in a series of decisions by the Roberts Court that supports religious rights, it is noteworthy since it is the first time that the Supreme Court ruled in favor of a religious employee in a §701(j) case. Under §701(j) of Title VII of the Civil Rights Act of 1964, an employer must reasonably accommodate a religious employee in the workplace if accommodation can be made without undue hardship. This article examines whether there are any unifying principles that can best explain the legal system’s treatment of religion in the workplace prior to the Court’s decision in Abercrombie. While there has been scholarship addressing specific aspects of §701(j), this is the first article to provide a comprehensive analysis of the unifying principles that the federal courts have relied on in interpreting § 701(j). The author concludes that there are three such unifying principles. First, despite the fact that §701(j) specifically mandates differential treatment of religious employees or reasonable accommodation absent undue hardship courts tend to read §701(j) as requiring little more than formal equality. Second, courts tend to view religion as mutable and therefore not entitled to protection. Third, there is a lack of consensus in American society regarding the importance of religion and many courts express skepticism about the importance or validity of religion and are hesitant to mandate accommodation of religious employees. The result of the federal courts’ application of these three principles has been both minimal and inconsistent protection of religious employees in the workplace. The article concludes with a discussion of how the Supreme Court’s decision in Abercrombie is likely to impact future §701(j) cases.

The 'Speech Integral to Criminal Conduct' Exception

Abstract: In the last 10 years, the Supreme Court has been reviving a long-dormant and little-defined First Amendment exception: the exception for “speech integral to criminal conduct,” first expressly noted in Giboney v. Empire Storage & Ice Co. (1949). The Court has recently used this exception to justify prohibitions on distributing and possessing child pornography, on soliciting crime, and on announcing discriminatory policies. Lower courts have used it to justify restrictions on speech that informs people how crimes can be committed; on doctor speech that recommends medical marijuana to their clients; on union speech that “retaliates” against union members by publicly criticizing them for their complaints; on intentionally distressing speech about people; and more. Government agencies have used the exception to justify restrictions on, among other things, the publication of bomb-making instructions, speech by tour guides, and offensive speech by protesters near a highway. The Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well-defined and narrowly limited, courts need to explain and cabin its scope. This Article aims to help with that task. It also tells the story of this exception, which turns out to be central to much of the evolution of modern First Amendment doctrine -- including the fighting words exception, the threats exception, and the incitement exceptions. And it suggests that the Court’s recent turn away from categorical balancing, and towards history, in developing First Amendment exceptions has coincided with the revival of Giboney. Just as Giboney was an important tool for Justice Black (its author) in resisting thoroughgoing categorical balancing, so Giboney has become a comparably important (though dangerous) tool for the Roberts Court.

Agora: Reflections on Zivotofsky v. Kerry Presidential Signing Statements and Dialogic Constitutionalism

Abstract: When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotofsky v. Kerry (Zivotofsky II),1 Jack Goldsmith hailed the decision as a “vindication” of presidential signing statements and executive power.2 Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the “constitutionally ludicrous” work of an overreaching, “imperial presidency.”3 Others in this Symposium4 and elsewhere have covered what a “bonanza”5 Zivotofsky II is for foreign relations law, the competing visions6 of foreign relations at the case’s center, the justices’ reliance on historical practice7 in constitutional interpretation, and the ways in which the opinion departs from8 or reinforces9 the Roberts Court trend toward “normalizing”10 foreign relations law. Building on these themes, the focus of this essay is on how Zivotofsky II demonstrates the role that presidential signing statements can play in facilitating inter-branch dialogue,11 as a means of promoting clarity, cooperation, and compromise in constitutional interpretation.12 Notwithstanding my earlier criticism of specific signing statements in the context of the treatment of terror suspects13—a position I maintain today based on my disagreement with the substance of those statements—I am not against signing statements per se. In fact, I agree with Goldsmith that “[s]igning statements are not in themselves cause for concern . . . . Poor interpretations of Article II articulated in a signing statement can be a cause for concern—especially in the rare

The Marrow of Tradition: The Roberts Court and Categorical First Amendment Speech Exclusions

Abstract: TABLE OF CONTENTS INTRODUCTION I. THE RISE AND DECLINE OF CATEGORICAL SPEECH EXCLUSIONS II. THE SPEECH-PROTECTIVE ROBERTS COURT: REJECTING NEW CATEGORICAL EXCLUSIONS III. THE SPEECH-RESTRICTIVE ROBERTS COURT: ENTRENCHING AND DEEPENING OLD CATEGORICAL LIMITS A. The Narrowness of the Speech-Protective Decisions B. Using Tradition to Justify Categorical Exclusions IV. ONCE MORE INTO THE BREACH? CONCLUSION INTRODUCTION The Roberts Court has made a lot of First Amendment law. Since Chief Justice John Roberts took the Supreme Court's helm in 2006, the Court has issued decisions on the merits in about thirty-five free speech cases. With greater vigor than the late Rehnquist Court, the present Justices have waded into free speech controversies ranging from violent video games (1) to commercial speech (2) to campaign finance regulation. (3) In all those areas, the Court has handed important victories to First Amendment claimants. Free speech advocates' conventional (not to say universal) view of this Court is adoring. Renowned First Amendment lawyer Floyd Abrams has stated, "It is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this." (4) Burt Neuborne, a leading academic and legendary civil liberties lawyer, concurs: "This court is the strongest First Amendment court in history.... The current majority uses the First Amendment as a powerful tool of deregulation that eliminates virtually all government efforts to regulate anything to do with the flow of information." (5) Former judge and current Baylor University President Kenneth Starr has called the Roberts Court "the most free speech Court in American history." (6) Investigation of those bold claims must start in what, based on recent history, might seem like an obscure judicial precinct: cases about categories of speech that the First Amendment does not protect, like obscenity and fighting words. For nearly three decades the Supreme Court said very little of note about such categorical speech exclusions. (7) The Roberts Court, however, has given this neglected neighborhood a makeover. Some of this Court's most important, striking First Amendment decisions address proposals for new categorical exclusions or applications of familiar categorical doctrines. The Justices have not just resolved categorical issues. Rather, they have changed the law of categorical exclusions, announcing a new guiding star for assessing categorical First Amendment claims: tradition. According to the Roberts Court, a categorical exclusion can only pass constitutional muster if it reflects a substantial tradition of leaving speech open to regulation. In two prominent decisions, this focus on tradition has led the Court to reject government calls to make a new categorical exclusion for certain violent images. (8) Those decisions serve as exhibit A for commentators who praise the Roberts Court as strongly speech protective. The decisions that reject new categorical exclusions deserve some of the acclaim they have received. Unfortunately, their speech-protective results carry limited precedential weight. Worse, these decisions actually undermine speech protection in other cases by tying categorical exclusions to the Court's account of what our law has traditionally let governments regulate. That linkage has led the Court to reinforce or fortify nonprotection for pandering nonexistent child pornography, freely using copyrighted material, and making legislative votes. The Court's most recent categorical speech decision, United States v. Alvarez, potentially advances expressive freedom by refusing to categorically exclude lies from First Amendment protection. (9) The Justices, however, could not agree on a rationale in that case, robbing it of precedential force. (10) The categorical speech cases, celebrated by the Roberts Court's enthusiasts, provide only limited, very mixed benefits for any robust model of free speech. …

Backsliding: The United States Supreme Court, Shelby County v. Holder and the Dismantling of Voting Rights Act of 1965

Abstract: The Supreme Court, having found that certain states received unequal treatment under the Voting Rights Act, struck down the Act’s preclearance provision in its Shelby v. Holder holding. The Author, in an effort to critique the conclusion reached by the Court, argues that these states, historically responsible for obstructing the ability of African-Americans to vote, continue to engage in practices that result in voting irregularities and acts of discrimination in the electoral process. Today, this strategic disenfranchisement rears its head in the form of legislation making voting difficult or impossible for many minority voters, a criminal justice system that targets racial minorities, and a lack of representation for citizens of color in both federal and state offices. The Author argues that without a preclearance requirement, “second generation” barriers to voting — such as the passage of voter ID laws and the dilution of black voting power through gerrymandering — will be constructed. The Author cites statistics on hate crimes based on racial bias, the disproportionate imprisonment of minorities, and the limited representation of African Americans in politics to support the main argument that racial disenfranchisement has persisted into the present day. The Author concludes that while the Voting Rights Act has never addressed all of the strategies used to suppress the black vote, the Supreme Court should still consider them if it wants to consider fully the legacy of slavery and the persistence of racism.

Foreword: The Supreme Court's Shadow Docket

Abstract: The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity. I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, * Neubauer Family Assistant Professor of Law, University of Chicago Law School. Thanks to Judith Miller for helpful conversations in the course of conceiving this piece, and to Josh Chafetz, Nathan Chapman, Justin Driver, Roy Englert, Jeff Fisher, Chad Flanders, Dina Mishra, Erin Murphy, Zach Price, Richard Re, and Mark Shawhan for subsequent comments on it. Further thanks to Nickolas Card for excellent research assistance and the Alumni Faculty Fund and SNR Denton Fund for research support. Finally, thanks as well to friends and readers at the Volokh Conspiracy, http://volokh.com, where some of my thoughts on these topics first appeared. New York University Journal of Law & Liberty [Vol. 9:1 2 and should make us skeptical of proposals to depersonalize the Court. Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court’s selections are fair. I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

The Roberts Court and Penumbral Federalism

Abstract: ions. It is, after all, the method actually used, not the latent possibilities, that has drawn charges of nonsense from many commenters. For example, Young and Blondel argue that “[t]he Court decided Windsor primarily on the ground that DOMA lacked any legitimate federal interest.” That is, while under “traditional rational basis review” the Court does not usually “hold the legislature to its actual purpose as long as some possible basis justifies the law,” “[f]ederalism . . . helps explain why the Court limited its review to DOMA’s actual purpose” of asserting a moral position on marriage. Thus, as the argument goes, the fact that Congress’ actual purpose implicated marriage policy—the traditional turf of the states—had the effect of intensifying the equal protection scrutiny the Court applied. The problem, however, is one that Young and Blondel anticipate but never fully confront: coherent precedent already calls for a consideration of actual purposes under rational basis review when laws discriminating against homosexuals are involved. In Romer v. Evans, the Court addressed the constitutionality of a Colorado state constitutional amendment that forbade localities from enacting legislation protective of homosexuals. In allegedly applying rational basis review, the Court dismissed theoretically conceivable interests of the state in passing the amendment, and concluded that its actual purpose was to create a “classification of persons . . . for its own sake,” based on animus toward that group. Romer provides an obviously available and precedential basis for inquiry into actual purposes. Young and Blondel provide little reason to conclude that federalism concerns provoked this aggressive inquiry rather than the fact that DOMA was a law that discriminated against homosexuals “for its own sake,” based on animus toward them as a class. Their response, judging from their article, would be that the Court’s repeated allusion to federalism principles makes this apparent: “each time that Kennedy mentioned dignity, he emphasized that this was a relationship [that] the State has sought to dignify. Each of the burdens that he cited deprived same-sex couples of state-law rights and 193. See, e.g., Tara Helfman, A Ruling Without Reason, COMMENT. (June 6, 2013, 4:15 PM), https://www.commentarymagazine.com/2013/06/26/a-ruling-without-reason/ (“In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.”). 194. Young & Blondel, supra note 187, at 142.

Dividing 'Citizens United': The Case v. The Controversy

Abstract: In the five years since "Citizens United", that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no."As a case dealing with a particular controversy over a proposed publication, I believe "Citizens United" was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, "Citizens United" has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naive vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. It is those trends, rather than the outcome of "Citizens United" as applied to the facts before the Court, that need to be revisited. Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege — throughout First Amendment law — an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. I believe the Court would do well to rethink that approach.