Showing papers on "Roberts Court published in 2019"

The Legacy of President Obama in the U.S. Supreme Court

Abstract: Isaac Unah and Ryan Williams evaluate the Obama administration and its relations with the US Supreme Court. With the advice and consent of the US Senate, President Obama appointed two justices for the Supreme Court and several lower federal court judges. This chapter examined Obama’s legacy in the Supreme Court and the critical cases (e.g., campaign finance, health care, voting rights, same-sex marriage) that faced the Roberts Court. They argue that Obama’s presidency was transformative for the institution and politics of the Court. President Obama experienced both successes and failures in attempting to shape the Court in his own image, but he largely succeeded in using the Supreme Court to secure some of his biggest victories as president. At the end of the tenure, Obama was only partially successful in slowing down the aggressive rightward shift of the Court. Obama’s two relatively liberal/progressive-minded appointees, Justices Sonia Sotomayor and Elena Kagan are a counterweight to the current Court’s conservative majority. With the help of Sotomayor and Kagan, the liberal minority has slowed the Court from moving dramatically to the Right. The chapter makes that conclusion after examining the voting behavior of the Obama appointed justices compared to the justices they replaced on the Bench.

The Elephant in the Room: Intentional Voter Suppression

Abstract: Since its inception, the Roberts Court has acquiesced in—and at times even abetted—the attempts of many states to make it harder for Americans to vote. Illustrative is a 2018 decision, Husted v. A. Philip Randolph Institute, in which the Court rejected a statutory challenge to a state’s expansive purges of voting lists. In Husted the Court dismissed the threat of voter suppression as simply not “relevant” to the case before it. By declining to look beyond states’ unsupported explanations for voter-suppressive practices, the Court is leaving the right to vote to the vagaries of the political process. It didn’t have to be this way. For half a century, the Court has recognized a constitutional right to vote. This Article sketches a claim that precedent might allow, if only the Court were willing to reconsider its trajectory and acknowledge the reality and constitutional implications of intentional voter suppression. More specifically, we turn to the neglected Equal Protection framework developed by the Supreme Court in the voting-rights context to argue that a state acts unconstitutionally when it acts with the intent of making it less likely that an eligible voter’s ballot will be cast or counted. If accepted, this straightforward principle would require judicial scrutiny of election practices to move beyond talking points, to allow genuine adversarial testing of states’ justifications for restrictive measures.

The Constitutionalization of Disparate Impact — Court-Centered and Popular Pathways

Abstract: Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of disparate impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of disparate impact law, I sample conflict over disparate impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. Examining disparate impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of disparate impact could take forms that Fiss does not anticipate, given conservative opposition to the use of disparate impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially disparate impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to disparate impact in the Trump administration. This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.

Overwriting and Under-Deciding: Addressing the Roberts Court's Shrinking Docket

Abstract: This article critiques the Roberts Court’s tendency to overwrite and underdecide. Despite Chief Justice Roberts’s Senate testimony asserting that the Supreme Court should take more cases, the Roberts Court has fallen below the previous recorded lows of the Rehnquist Court. Returning to Chief Justice Roberts’s goal for the Court to be more productive, this article offers two solutions: the Court should stop publishing (1) signed opinions and (2) separate opinions. At a time when government feels strained, if not broken, the Supreme Court’s reluctance to decide actual controversies—but allowing each Justice to publish their separate ideas on each decision—merits serious discussion. Should the average number of dissents (56) rival the average number of signed majority decisions (67)? And what are the opportunity costs of a Court that averages 31 more separate opinions each Term (98 total, comprised of 56 dissenting opinions and 43 concurring opinions) than decisional opinions? Ironically, Chief Justice Roberts has spoken on his Court’s tendencies to individualize the law. In a 2007 interview, Chief Justice Roberts admonished that “every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.” Looking at the numbers, it truly is time to worry. It is also time for the Justices to return to the Court’s primary duty—the duty to decide.

The Meaning of Judicial Impartiality: An Examination of Supreme Court Confirmation Debates and Supreme Court Rulings on Racial Equality

Abstract: Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach. However, as important as the concept of judicial impartiality may be, it is worth pausing to examine what speakers generally mean when they mention the term. In this article, I argue that at its core, the invocation of “judicial impartiality” in political discourse speaks to an ideal of fairness: an impartial judge is a person who acts in a fair manner toward all parties in a case appearing before them. My focus in this article is on examining the concept of judicial impartiality in this familiar sense, with the hope of providing some insight into the underlying norms that structure our public discourse around judicial appointments, judicial rulings, and responses by elected officials to judicial rulings. This article seeks to advance three claims. First, I claim that the divergent Democratic and Republican views on judicial impartiality—as illustrated the context of the Supreme Court confirmation hearings and debates for Chief Justice John Roberts and Justice Sonia Sotomayor—are rooted in each party’s distinct electoral coalitions and ideological histories. Secondly, I claim that notwithstanding these divergences, both Democratic and Republican-appointed justices on the Supreme Court share a common institutional environment at present of judicial uncertainty. This shared institutional condition, I argue, alters how Democratic and Republican-appointed justices are able to implement their respective visions of judicial impartiality in actual adjudication. On this point, I discuss some of the Roberts Court’s recent rulings on race and equal protection to help anchor the examination of judicial impartiality in constitutional doctrine. Finally, in the final portion of the article, my argument takes a normative turn in making my third claim: accepting that some degree of partiality is inevitable in the judicial role, judicial impartiality is best understood as denoting a consistent, good-faith engagement with the claims and interests of those who lie outside the social groups that are aligned with a judicial actor. I conclude the article with a few words on what this conception of judicial impartiality might imply, or even demand, of Democratic and Republican-appointed judicial actors seeking to uphold the ideal of judicial impartiality in the present time.

All Balls and No Strikes: The Roberts Court’s Anti-Worker Activism

Abstract: For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights. In 2012, I traced how the Roberts Court paid scant attention to the integral role private enforcement plays in various regulatory frameworks in which given substantive laws operate. By reducing or eliminating mechanisms of private enforcement, I argued, entire swaths of substantive law would go woefully under-enforced. Since that time, the Roberts Court’s civil justice and procedural jurisprudence—jurisprudence that has brought about systematic retrenchment of substantive rights—reveals that the Roberts Court is not so much inattentive to the exigencies of various regulatory frameworks. Instead, the Roberts Court jurisprudence tends to reveal an affirmative deregulatory aim. Far from merely calling balls and strikes, and in opinions involving questions as varied as ones about class-action rule interpretation, the permissibility of collective action waivers in arbitration agreements, the ability to opt out of collective bargaining dues on First Amendment grounds, standing, and others, the Roberts Court has achieved sweeping deregulation in the past decade. As has been traced in the literature, these deregulatory effects have been particularly pronounced in the area of consumer law. Moreover, the deregulatory effects for the underlying substantive regimes have often been achieved through somewhat indirect, procedural decision-making, but those effects have been almost as significant as if the Court had simply re-written the particular rights-bearing statutes. During October Term 2017, the Court moved beyond consumer law and ramped up its efforts to effectuate deregulation of employment law. Whatever protections workers have enjoyed throughout our nation’s history have been secured in large part through private enforcement. And to be sure, on their faces, critical workplace protection laws like Title VII and the Fair Labor Standards Act (“FLSA”)—both of which rely almost exclusively on private litigation for their effectuation—remain completely intact. However, in three critical (but less-blockbuster-than-Masterpiece Cakeshop) cases—Janus v. American Federation of State, County, and Municipal Employees, Epic Systems v. Lewis, and Encino Motorcars—the Court in back-to-back 5-4 rulings stripped workers of mechanisms to pursue their rights against employers who commit wrongs in the workplace. Both history and present experience teach us that the Court’s recent opinions will help eliminate the regulatory apparatus for workplace injury, and private employers will enjoy increased ability to essentially rewrite their obligations under substantive law through procedural vehicles. This essay proceeds as follows: Part A traces the Court’s employment law jurisprudence from October Term 2017. Part B discusses the regulatory consequences of these opinions and argues that the Court’s opinions this past term reflect political commitments that favor and disfavor certain types of claims and claimants.