Roberts Court

About: Roberts Court is a research topic. Over the lifetime, 397 publications have been published within this topic receiving 1468 citations.

[86WashLRev0217] Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law

Abstract: Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. INTRODUCTION Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction ? right or wrong ? the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."1 By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself on issues of grave national importance,2 perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.3 Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right. On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.4 The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."5 No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. …

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.

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. …

When It Comes to Business, the Right and Left Sides of the Court Agree

Abstract: Although the conservatives (all Republican appointees) on the Roberts Court are more favorable to business than the liberals (all Democratic appointees), the liberals are hardly anti-business. We show that the four Democratic appointees serving on the Roberts Court are far more business-friendly than Democratic appointees of any other Court era. Even more surprising, the Democrats vote in favor of business at significantly higher rates than Republican appointees in all the other chief justice periods since 1946. Because the current Democratic and Republican appointees support business at record levels, the fraction of unanimous pro-business decisionsthe "Business Favorability Index"-has never been higher. What with the left and right side of the bench favoring business at levels unprecedented in the last 70 years, it is fair to continue to characterize the Roberts Court as "pro-business." . Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis. Landes is the Clifton R. Musser Professor Emeritus of Law and Economics at the University of Chicago Law School. Posner served on U.S. Court of Appeals for the Seventh Circuit and is a senior lecturer at the University of Chicago Law School. We are grateful to Ha Eun Park for research assistance and to Jonathan Adler for very helpful comments. Epstein thanks the National Science Foundation, Washington University School of Law, and the John Simon Guggenheim Foundation, and Landes and Posner the law and economics program at the University of Chicago, for research support. All data used in this article are available at http://epstein.wustl.edu/researchibusinessSupCt.html.

Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory

Abstract: My article is a forward-looking, historical piece that offers a critique of colorblind constitutionalism through an examination of the Court's race jurisprudence. Justice O'Connor's affirmative action decisions serve as a model for a critique of neutrality and inversion - the doctrinal technique of turning substantive concepts inside out in the name of neutrality only to preserve systemic oppression - the Court has dramatically reinterpreted the Fourteenth Amendment. Justice O'Connor's decisions serve as a pivotal point for this radical re-interpretation. What is striking about this shift is that Justice Thomas has become a leading race theorist on the Court - he turns history inside out so that a militant historical figure like Frederick Douglass becomes a proponent for colorblind constitutionalism. This article critiques this doctrinal development through an in depth analysis of the themes underlying Justice O'Connor's race jurisprudence and Justice Thomas's rhetorical use of historical revisionism. This article will serve as a conceptual link between the race jurisprudence of the Rehnquist Court and the emerging conservative race jurisprudence of the Roberts Court.