Showing papers on "Roberts Court published in 2018"

The Administrative Role of the Chief Justice: Law, Politics, and Procedure in the Roberts Court Era

Abstract: The Chief Justice of the Supreme Court plays a critical role in shaping national politics and public policy. While political scientists tend to focus on the ways in which the chief affects the Court’s jurisprudence, relatively little attention has been devoted to the unique administrative aspects of the position that allow for strategic influence over political and legal outcomes. This article examines the role of the chief justice as the head of the Judicial Conference, which is the primary policy making body for federal courts in the United States. Specifically, I examine the degree to which Chief Justice Roberts has appointed members to the Conference’s rulemaking committees with a long-standing conservative legal goal in mind: constricting access to courts. By focusing on the 2015 amendments to the Federal Rules of Civil Procedure in particular, I show that Chief Justice Roberts’ sole discretion to appoint members to these committees constitutes a “purely procedural” role through which he has exercised extensive political power, blurring the line between “law” and “politics” to great effect.

Elements of the Support Structure for Campaign Finance Litigation in the Roberts Court

Abstract: This article considers the organizations, financial patrons, and lawyers involved in two significant campaign finance cases decided by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well-defined opposing and partisan camps. It also suggests that strategic case selection on the challengers' side, the diversity of organizations supporting their positions, their network and coordination, and a simple and powerful frame around which to rally may have contributed to their success and to the Roberts Court's fundamental reshaping of campaign finance doctrine.

A Warrant Requirement Resurgence? The Fourth Amendment in the Roberts Court

Abstract: My article challenges the conventional wisdom that the United States Supreme Court’s Fourth Amendment jurisprudence over the past thirty years is marked by a consistent and continuing decline in the scope and significance of the warrant requirement. Instead, I argue that the past decade of the Roberts Court has produced a resurgence in the warrant requirement as a constitutional constraint on police investigations. The highly anticipated decision in Carpenter v. United States (June 22, 2018), which held unconstitutional the acquisition of historical cell-site location information about a defendant’s mobile phone because the Government obtained those corporate business records without a search warrant, is the latest case in this ongoing doctrinal development. Previous prominent decisions involving an inspection of digital data on a smartphone, GPS tracking of a motor vehicle, and a compulsory blood draw to determine blood-alcohol content in a routine drunk-driving investigation also ruled in favor of requiring search warrants. My article considers the full span of the Roberts Court’s Fourth Amendment decisions to conclude that the warrant requirement is likely to play an increasingly significant role in the doctrine in the years ahead, especially as the Court continues to confront the Fourth Amendment implications of data-driven surveillance and other technology-based police investigations in the internet age.

Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court's First Decade

Abstract: In resolving questions of statutory meaning, the lion’s share of Roberts Court opinions considers and applies at least one interpretive canon, whether the rule against surplusage or the presumption against state law preemption. This is part of a decades-long turn toward textualist statutory interpretation in the Supreme Court. Commentators have debated how to justify canons, since they are judicially-created rules that reside outside the statutory text. Earlier studies have cast substantial doubt on whether these canons can be justified as capturing congressional practices or preferences; commentators have accordingly turned toward second-order justifications, arguing that canons usefully make interpretation constrained and predictable, supplying Congress with a stable interpretive background. Based on an extensive study tracking the use of over 30 interpretive canons in the first 10 years of the Roberts Court, this article attempts to contribute evidence to the debate over canons. The data raise substantial questions regarding stability and predictability. Despite a long tradition of use, some canons have essentially disappeared; meanwhile, the Court is creating others out of whole cloth. In addition, application is erratic. The Justices decline to apply even the most widely engaged canons 20-30% or more of the time, often for difficult-to-anticipate reasons; some well-known canons, such as the rule of lenity and the presumption against preemption, are applied little better than 50-50. The story is worse in the many cases in which multiple canons are considered. Based on these and other findings, this article accordingly argues that predictability and stability arguments cannot supply a firm foundation for canon use. The study also reveals troubling mismatches between canons actually in use and congressional staff acceptance of canons. The article concludes by suggesting some future directions for investigation and reform.

Federalism and Intergovernmental Relations: Theories, Ideas, and Concepts

Abstract: Administrative federalism posits a single mechanism of government for the United States, with many centers of action, which between them are to perform all the functions required of government by the American people. Confirmation hearings for Justice Roberts and Alito gave little indication of their stances on federalism and it remains an open question as to whether the new Roberts court will try to curb congressional power and favor state governments. Regardless of the impreciseness of constitutional federalism and the longed for, but not achieved, preciseness of states’ rights federalism, those at work on the operating side of the federal system have from the beginning been establishing yet another view of federalism. Democrats continued to support a cooperative federalism that relied on a flexible intergovernmental approach to policy problems. Stymied by the Democrats’ control of Congress, Republican presidents appointed Supreme Court justices who shared the party’s federalism vision.

Four Principles for Digital Expression (You Won't Believe #3!)

Abstract: At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the powerful. The “special justifications or regulation of the broadcast media” had no application to the “vast democratic forums of the Internet.” Twenty years later, the Roberts Court had an opportunity to explain how the First Amendment should operate in the mature Internet of 2017. Despite the interval of time, the Roberts Court of 2017 took a remarkably similar approach to the Rehnquist Court of 1997. In Packingham v. North Carolina, Justice Kennedy announced the start of the “Cyber Age.” The Internet was the virtual public square, much like streets and parks. Because the “Internet” was still in its infancy, its impact on expression was not fully understood. The expressive potential of the “Internet” would be imperiled in the absence of a hands-off approach. Justice Kennedy noted that someday, the Internet might be used for anti-social ends. Until then, extreme caution was in order so the Internet’s democratic potential could be realized. Contrary to the Court’s thinking, the Internet is no longer in its infancy. It has matured at a breathtaking pace. Virtually all aspects of our public and private lives - politics, child-rearing, work, health, shopping, and sex - involve the Internet. If online discourse ever accorded with the Court’s vision, it does not now. Rather than just the virtual town square, the “Internet” is bound up in everything and everywhere-whether the workplace, library, coffee shop, gym, park, public street, town square, or bedroom. This article debunks the Court’s magical thinking about the Internet. The Internet’s expressive opportunities are not available to all on equal terms, thanks to the wide availability of personal data. Online platforms highlight favored content while burying disfavored ones. Search engines produce different, and less advantageous, results to people of color and women than to men. Cyber mobs shove people offline with doxxing, swatting, and other privacy-invasive forms of abuse. Online platforms fuel polarization and filter bubbles, ensuring an electorate without access to a full range of ideas and information. Fake news spreads like wildfire on social media platforms that are often people’s main source of information. We need clear principles to guide and secure meaningful digital free expression. This article charts a path to provide just that. Part I exposes crucial myths surrounding the digital speech and privacy in our networked age. Part II offers a conception of free speech based on a distrust of power, both public and private. Even if doctrinal analysis does not account for private barriers to free expression, the project of free expression should. Part III lays out four essential preconditions for a theory and a system of free expression in the digital age. These preconditions are substantive and procedural. They require legal intervention and extra-legal efforts. They draw some inspiration from due process guarantees and some from commitments to equality. Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley.

Assessing the Influence of Amicus Curiae Briefs on the Roberts Court

Abstract: Objectives Our objective is to assess the influence of amicus curiae briefs on judicial behavior on the U.S. Supreme Court. Our primary hypothesis is that amicus briefs have an impact on the justices across the ideological spectrum. Our secondary hypothesis is that this influence will be greater for justices nearer the ideological center. Methods Our analysis is confined to the Roberts Court (2005 through 2014 terms, inclusive). The unit of analysis is the justice‐vote in each of the 793 full‐opinion decisions during this 10‐term period; thus, our data set contains 7,135 observations. We employ logistic regression to test the impact of amicus filings on the ideological direction of the vote cast by each justice in each case. We control for the direction of the lower court decision, the ideological orientations of the justices, the presence of the federal government (or agency or official) as party, and the presence of the solicitor general as amicus curiae. Results We find statistical support for both the primary and secondary hypotheses. Amicus briefs appear to influence the justices across the ideological spectrum. The influence is somewhat greater among the more moderate justices, although the relationship between amicus influence and judicial moderation is a weak one. Conclusions Supreme Court justices appear to respond positively to the persuasive attempts of amici. This impact is most noticeable for the justices in the middle of the Court—those who tend to be most influential in steering the Court's decision making.

Candides and Cassandras: Technology and Free Speech on the Roberts Court

Abstract: John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelve years of the Roberts Court have thus been a period of constant and radical technological innovation and change, particularly in the areas of mass communication and the media. It is therefore somewhat astonishing how few of the Roberts Court’s free speech decisions touch upon new technology and technological change. Indeed, it can be argued that only two cases directly address new technology: Brown v. Entertainment Merchants Association on video games, and Packingham v. North Carolina on social media. Packingham, it should be noted, is the only Roberts Court free speech case directly implicating the Internet. Even if one extends the definition of cases addressing technology (as I do), only four cases, at most, can be said to address technology and free speech. It seems inevitable that going forward, this is going to change. In particular, recent calls to regulate “fake news” and otherwise impose filtering obligations on search engines and social media companies will inevitably raise important and difficult First Amendment issues. Therefore, this is a good time to consider how the Roberts Court has to date reacted to technology, and what that portends for the future. This paper examines the Roberts Court’s free speech/technology jurisprudence (as well as touching upon a few earlier cases), with a view to doing just that. The pattern that emerges is a fundamental dichotomy: some Justices are inclined to be Candides, and others to be Cassandras. Candide is the main character of Voltaire’s satire Candide, ou l’Optimisme, famous for repeating his teacher, Professor Pangloss’s mantra “all is for the best” in the “best of all possible worlds.” Cassandra was the daughter of King Priam and Queen Hecuba of Troy in Greek mythology, condemned by the god Apollo to accurately prophesize disaster, but never to be believed. While not all justices fit firmly within one or the other camp, the Roberts Court is clearly divided relatively evenly between technology optimists and technology pessimists. The paper begins by analyzing the key technology/free speech decisions of the Roberts Court, and classifying the current Justices as Candides or Cassandras based on their opinions or votes in those cases. In the remainder of the paper, I offer some thoughts on two obvious questions. First, why is the Court divided between Candides and Cassandras and what qualities explain the divergence (spoiler: it is not simply partisan or political preferences). And second, what does this division portend for the future. As we shall see, my views on the first issue are consistent with, and indeed closely tied to, Greg Magarian’s analysis of Managed Speech on the Roberts Court. On the second question, I am modestly (but only modestly) optimistic that the Candides will prevail and that the Court will not respond with fear to new technology., I am, in other words, hopeful that the Court will fend off heavy handed efforts to assert state control over the Internet and social media, despite the obvious threats and concerns associated with that technology. I close by considering some possible regulatory scenarios and how the Court might respond to them.

Four Principles for Digital Expression (You Won't Believe #3!)

Abstract: At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the powerful. The “special justifications or regulation of the broadcast media” had no application to the “vast democratic forums of the Internet.” Twenty years later, the Roberts Court had an opportunity to explain how the First Amendment should operate in the mature Internet of 2017. Despite the interval of time, the Roberts Court of 2017 took a remarkably similar approach to the Rehnquist Court of 1997. In Packingham v. North Carolina, Justice Kennedy announced the start of the “Cyber Age.” The Internet was the virtual public square, much like streets and parks. Because the “Internet” was still in its infancy, its impact on expression was not fully understood. The expressive potential of the “Internet” would be imperiled in the absence of a hands-off approach. Justice Kennedy noted that someday, the Internet might be used for anti-social ends. Until then, extreme caution was in order so the Internet’s democratic potential could be realized. Contrary to the Court’s thinking, the Internet is no longer in its infancy. It has matured at a breathtaking pace. Virtually all aspects of our public and private lives - politics, child-rearing, work, health, shopping, and sex - involve the Internet. If online discourse ever accorded with the Court’s vision, it does not now. Rather than just the virtual town square, the “Internet” is bound up in everything and everywhere-whether the workplace, library, coffee shop, gym, park, public street, town square, or bedroom. This article debunks the Court’s magical thinking about the Internet. The Internet’s expressive opportunities are not available to all on equal terms, thanks to the wide availability of personal data. Online platforms highlight favored content while burying disfavored ones. Search engines produce different, and less advantageous, results to people of color and women than to men. Cyber mobs shove people offline with doxxing, swatting, and other privacy-invasive forms of abuse. Online platforms fuel polarization and filter bubbles, ensuring an electorate without access to a full range of ideas and information. Fake news spreads like wildfire on social media platforms that are often people’s main source of information. We need clear principles to guide and secure meaningful digital free expression. This article charts a path to provide just that. Part I exposes crucial myths surrounding the digital speech and privacy in our networked age. Part II offers a conception of free speech based on a distrust of power, both public and private. Even if doctrinal analysis does not account for private barriers to free expression, the project of free expression should. Part III lays out four essential preconditions for a theory and a system of free expression in the digital age. These preconditions are substantive and procedural. They require legal intervention and extra-legal efforts. They draw some inspiration from due process guarantees and some from commitments to equality. Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley.

Off-Balance: Five Strategies for a Judiciary That Supports Democracy

Abstract: America’s founding generation was wary of judicial power. Embittered by abuses by unelected judges in England, they imported and invented myriad tools for citizens to check and balance judicial discretion. Inherent in courts is a risk that judges get too far out of step with the public’s opinion and needs. That danger is mitigated by active oversight by the people’s representatives. The controversial confirmation of Brett Kavanaugh underscored the Supreme Court’s democratic deficit. While the bench makes policy decisions that affect all Americans, four out of five members of its conservative majority were nominated by presidents swept into office despite losing the popular vote. Two members of the majority were confirmed despite serious sexual assault or harassment allegations made by women — who, collectively, make up the majority of the population. Social science research has shown that the Roberts Court is the most pro-business, anti-worker, anti-consumer court in modern history. Polls indicate low or declining support for the Court among Black Americans, Latinx Americans, women, and the public at large. Because justices are among the most important rule-writers for the U.S. economy and democracy, policymakers in the new Congress need to determine how to rebuild public confidence in the Court. The stakes are high. As inequality corrodes our government and economy, the Court can either block urgent remedial action or help encourage it. This paper outlines five strategies that legislators of either party can deploy to strengthen Court accountability: 1. Adding justices to the bench through Court expansion; 2. Removing justices through impeachment; 3. Changing the jurisdiction of the Court; 4. Ignoring or overriding Court decisions; and 5. Rewriting the Constitution to allow term limits, elect justices, or eliminate judicial review. Some of these strategies are controversial, but all have precedents. We summarize the pros and cons of each option, then describe and weigh these options in light of historical and contemporary examples. All are means to accomplish a needed re-balancing of the Court’s role in public life.

Why Does the Supreme Court Uphold So Many Laws

Abstract: Scholars spend a lot of time considering the legitimacy and implications of the Supreme Court striking down federal laws by use of judicial review. Similarly, there is a large literature focusing on the Court’s power and obligation to manage the federal judiciary through its certiorari powers over its own docket and its ability to reverse lower courts. However, there is almost no work that examines the interplay of the Court’s judicial review powers and its managerial authority. Scholars have overlooked this intersection because they implicitly understand the power of judicial review and the federal hierarchy as institutions based on vetoes. On this account, the Court takes a judicial review case to veto either Congress or a lower court. This suggests that the Court should never take a case in which it affirms a lower court and upholds a federal statute. This account is (almost) entirely wrong. Using a new and comprehensive dataset, we show that throughout its history, the Court has affirmed the lower court and upheld the statute in the plurality of its judicial review decisions. The box that current theories predict should be empty is actually the fullest. This is the first article to provide an empirical look at the Supreme Court’s judicial review practices in relation to its discretionary power over its docket. It considers various possible explanations for these uphold-affirm cases like circuit splits or mandatory review and finds them wanting. The empirical results lead us to develop a theory of positive judicial review. While many scholars have pondered what the Court gains from striking down laws, we are the first that considers the normative implications of and what the Court may gain from upholding statutes. We use these empirical and theoretical efforts to examine the Roberts Court and show that it is an historical outlier. Under Roberts, the Court has dramatically reduced its judicial review docket, and it has stopped taking uphold-affirm cases entirely. We examine what may have caused the Roberts Court to be the first Court in history that conforms to theoretical expectations and use these insights to predict how the Court may behave in the future.

The right to keep and bear arms in the Roberts Court

Abstract: Like everything else in the Bill of Rights, the Second Amendment originally restrained only the new federal government. This left the states free to regulate weapons as they saw fit, just as they were free to regulate such matters as speech and religion. The Supreme Court did not invalidate a federal statute under the Second Amendment until 2008, and it was only in 2010 that a regulation adopted pursuant to state law was struck down. These two decisions — District of Columbia v. Heller and McDonald v. City of Chicago — prompted a stream of litigation that may eventually put significant constraints on legislative efforts to regulate the possession and use of weapons. As this is written in July 2017, however, it seems more likely that the Court’s decisions will prove to have very limited practical effects. It is worth recalling the Rehnquist Court’s Commerce Clause decision in United States v. Lopez, which set off celebrations and lamentations about a federalism revolution that has yet to come about. Similarly, the Roberts Court has so far shown only that the Second Amendment does not leave governments with absolutely limitless regulatory power. This contribution to American Federalism and Public Policy (edited by Christopher P. Banks) begins with a brief sketch of the legal and historical background that set the stage for Heller and McDonald. After a description of those cases, the chapter surveys the application of the decisions by the lower courts. The chapter concludes with an analysis of the Supreme Court’s response to the case law developed by the lower courts.