Roberts Court

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

Under-the-Table Overruling

Abstract: In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - suggested by the Court's own account of constitutional stare decisis in Planned Parenthood v. Casey - superficially seems to support the practice of underruling, in fact it does not. Casey's association of stare decisis with judicial legitimacy plausibly can be understood to reflect a broader account of the judicial function in constitutional cases, one focusing on the Court's capacity to resolve certain disputes more acceptably than ordinary democratic politics. Underruling may serve this dispute-resolution function by preserving the appearance of the Court's impartiality, although there is reason for doubt. But underruling frustrates the dispute-resolution function in another way: By obscuring the reality of what the Court is doing, it makes meaningful popular participation in constitutional decisionmaking more difficult.

Tread on me

Abstract: Freedom of speech doctrine is an analytical and theoretical morass. This is primarily because expression is a ubiquitous human activity that government regulates in ways that defy simple summary. Yet despite the complexity and vast scope of the modern freedom of expression terrain, commentators and courts strain to identify unifying, formalistic analytical principles and to propose singular theoretical prisms through which to view the terrain. I argue that this is a wrong turn. A better understanding of past and present free speech practice requires thinking that is factored, not formulaic; contextual, not trans-contextual; dynamic, not static; tentative, not absolutist; plural, not singular or even dichotomous. In fact, nuance will be increasingly important in future First Amendment cases, as new science, new technologies, and socio-political developments challenge fundamental assumptions that undergird the doctrine. This is especially apparent when one confronts the free speech canard that government cannot compel private expression. This Article proceeds in two parts. Part I describes in broad strokes the current state of doctrinal and theoretical affairs in the free speech realm. It offers a topography of the free speech doctrinal terrain and identifies key questions that pervade it. This section focuses in particular on the significance of “above-the-line” treatment of speech regulations that trigger elevated scrutiny. This overview shows that the doctrine offers, at most, a set of norms and questions that inform judicial analysis rather than a “fixed star” or even fixed principles. Part II critiques three recent Roberts Court decisions that ignore this doctrinal reality. The Court ∗ Regent’s Professor, Milton O. Riepe Chair in Constitutional Law and Dean Emerita of University of Arizona James E. Rogers College of Law. Thanks go to David Adelman, Barbara Allen Babcock, and Genevieve Leavitt for improving the arguments herein, and especially to Jane Bambauer and Derek Bambauer, for inspiring and honing many of them. I also am indebted, as always, to my colleagues at the University of Arizona James E. Rogers College of Law. The editors, especially Marla Benedek, were terrific and I thank them for their insightful feedback throughout the editorial process. 1 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). 366 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:2 has insisted that speaker identity distinctions always trigger elevated scrutiny, that only traditional and historical categorical exceptions are constitutional, and that government speech is beyond the freedom of speech principles. None of these formalistic statements can be squared with other free speech doctrine, significant zones of traditional government regulation, or common sense. They also weaken the Court’s ability to balance the conflicting policy concerns that arise in a host of speech-sensitive areas—such regulation of data collection, licensed professionals, or other commercial actors. That the Court’s more rigid approach to free speech is unsustainable is especially apparent if one examines the compelled speech cases. Contrary to Justice Robert Jackson’s rhetorically arresting “no fixed star” celebration of individual freedom from compulsory pledges of allegiance, government often demands private expression, crafts it, or silences it altogether. Government can, and often does, “tread on me.” Constitutionally mandated oaths of office, occupation-specific codes of conduct, public accommodations laws, audience and context-specific regulation of the content of information disclosures, many employment and civil rights statutes, student conduct codes, conditions on government benefits, anti-fraud laws, and many other forms of government speech regulation demonstrate that there is no across-the-board constitutional mandate against government compelled expression. In all of these cases, context, history and a host of relevant government interests matter. In 2013, the Roberts Court struck down a condition on a government grant that it deemed unduly coercive of grantees’ freedom of expression. Yet the Court also recognized that contextual flexibility matters in determining when funding conditions go beyond sensible restrictions and become unlawful compulsion. I praise this recent turn away from free speech formalism, and suggest this not only is the better analytical approach in compelled speech cases, but in free speech cases more generally.

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.

Group Formation and Precedent

Abstract: This chapter combines historical evidence and social-psychology insights to contend that “coherent” Supreme Courts—those with five or more Justices who agree on crucial issues—are far more likely to overrule precedents, and to aggressively attempt to create broad precedents, than are “incoherent” Courts. The author explains the social-psychology dynamics that contribute to the formation (or absence) of coherent Court majorities. He then surveys three historical periods to illustrate the divergent behavior of coherent versus incoherent Courts: the post-1936 New Deal Court, which was highly coherent on most issues and thus ambitious in both overturning and establishing precedent; the Warren Court, which was incoherent and cautious before 1962 but became coherent and aggressive thereafter; and the Rehnquist Court, which was incoherent on most issues (dominated by two centrist swing Justices) and thus adopted a minimalist approach toward precedent. The author concludes with a preliminary analysis of the Roberts Court, suggesting that it is generally incoherent and therefore reluctant to formally overrule precedent in most areas.

Reasoning about the Irrational: The Roberts Court and the Future of Constitutional Law

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. …