Showing papers on "Roberts Court published in 2020"

The Roberts Court and Administrative Law

Abstract: This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed. The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions. One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once. Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.

Consent, Coercion, and Employment Law

Abstract: The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to the critique of free choice developed by Legal Realist figures during the first half of the Twentieth Century. The Realists deployed their critique to challenge many then-existing areas of doctrine, notably including the Lochner-era freedom-of-contract cases. This paper demonstrates that the recent Roberts Court decisions implicate that critique just as the Lochner-era cases did. Just as in the Lochner era, the Roberts Court has persistently undervalued the importance of regulation and collective organization in rectifying imbalances in bargaining power and guaranteeing workers meaningful freedom of choice. The paper then explores the implications of the Realist analysis for several fundamental questions of labor and employment law doctrine. The paper argues that the doctrine in this area has never really shed the premises of Lochner.

A New State Registration Act: Legislating a Longer Arm for Personal Jurisdiction

Abstract: In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests. Registration-based consent to jurisdiction has a long pedigree, dating back to the years before the Fourteenth Amendment's ratification. For much of its history, however, registration-based jurisdictional consent languished in obscurity, as general "doing business" jurisdiction overshadowed the doctrine. With the Supreme Court's recent "at-home" trilogy sounding the death knell of general "continuous and systematic" contacts jurisdiction, the constitutional propriety of interpreting a state corporate registration scheme to require the corporation's all-purpose jurisdictional consent for claims arising anywhere in the world is in doubt. Instead of litigating the meaning and ongoing validity of these longstanding registration statutes, we recommend that the states adopt a modernized jurisdictional-consent statute that ensures an appropriate state jurisdictional reach and operates within the Supreme Court's pronounced adjudicative framework. We draft and evaluate a proposal for such a statute, which we believe the Uniform Law Commission is especially well situated to consider, refine, and promulgate for the states' benefit. Such a statute would avoid the wasteful expense of litigating the interpretation of registration statutes initially adopted during the heyday of the horse and buggy. More importantly, the proposed act would allow the states to assert their sovereign authority to ensure access to justice for their residents after the dismantling of general jurisdiction. By precisely tailoring the statute to states' sovereign interests, the proposed act avoids constitutional pitfalls while still providing an effective jurisdictional reach for the states after the Roberts Court's jurisdictional revolution.

A Transformative Era: The Roberts Court, Constitutional Interpretation, and Public Administration:

Abstract: The Constitutional School of American Public Administration dictates that the rule of law serves as the intellectual and practical foundation of the field. One way to support the Constitutional Sch...

Dissent, Disagreement and Doctrinal Disarray: Free Expression and the Roberts Court in 2020

Abstract: Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment jurisprudence as the Court enters the third decade of the twenty-first century. Other troubles range from vehement disagreement in Nieves about crafting a federal rule impacting both speech and press rights to a split in Brunetti over when and how the Court should save a statute via a narrowing construction. Furthermore, perceived political partisanship separates the Justices today not only on the standard of scrutiny that applies in a case—Becerra and Janus rendered this vivid—but also on a case’s framing and the concomitant selection of precedent to steer the inquiry, as occurred in Halleck. Ultimately, the Article concludes that the rifts render free-expression jurisprudence even more muddled today than in the past. The Justices simply are not operating from the same First Amendment playbook. Worse yet, they function at times—particularly in cases such as Halleck—in a manner that strips away the increasingly thin veneer that personal ideologies are set aside when deciding cases.

The Vanishing Core of Judicial Independence

Abstract: With Congress firmly in control of the jurisdiction, resources, and structure of the federal courts, the scope of the judiciary’s independence is limited indeed. If there is an attribute that can be considered the core of judicial independence, it is the power of the federal courts to decide cases pending before them . In a pair of recent decisions, however, the Supreme Court has called into question whether the federal judiciary possesses even this limited attribute of independence. This Article examines how the Roberts Court has blurred the line between the judicial and legislative powers by ceding to Congress the authority to direct federal courts to decide pending cases for particular parties. After identifying the thorny issues that the Court has left unsettled, this Article suggests an approach to resolving them that preserves both Congress’s role in lawmaking as well as the core of the judiciary’s independence.

Cracking the Whole Code Rule

Abstract: Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases — what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground. One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress. Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool. This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of the full universe of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms. The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas. Moreover, many of the Court’s analogies involve generic statutory phrases — such as “because of” or “any” — whose meaning is likely to depend on context rather than some universal rule of logic or linguistics. The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices. The article critiques this judicial imposition of drafting conventions on Congress — noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice — e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where it is necessary to harmonize two related statutes with each other.

Evading the Eighth Amendment

Abstract: The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly. This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody. It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values. The effect was to leave the people in prison without judicial protection from needless pain and suffering. And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern. Chapter available online: https://doi.org/10.1017/9781108653732.013

The Roberts Court's Assault on Democracy

Abstract: This article argues that economic and political developments in the last fifty years have in many respects undermined America’s democratic institutions and that, instead of working to strengthen democracy, the Supreme Court over which Chief Justice Roberts presides, is substantially contributing to its erosion. The Court has done this in two ways, first by carrying on a sustained assault on the right of poor people and minorities to vote. The Court has virtually eviscerated the landmark Voting Rights Act, it has upheld strict voter identification laws that serve no purpose other than to make voting more difficult, and it has authorized states to purge thousands of people from the voting rolls. In addition, the Court has abdicated its responsibility to end the anti-democratic process of partisan gerrymandering. The second way in which the Court is weakening democracy is by reinforcing the enormous imbalance in wealth and political power that has developed in recent decades and that has contributed to undermining democracy. The Court has done this by consistently strengthening the economic and political power of corporations and wealthy individuals, as, for example, through its campaign finance decisions, and by reducing that of ordinary Americans as, for example, through its decisions involving labor unions, forced arbitration and the expansion of Medicaid.