Roberts Court

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

The Language of the Roberts Court

Abstract: It is widely recognized that it is the language of the Supreme Court’s opinion, not the outcome, that is legally most salient. Yet the language of opinions has seen little research. Linguistic analysis programs are now commonly used in other disciplines to compare language choices. We apply the leading program to evaluate Roberts Court opinions. We find significant differences, depending on whether the opinion is for the majority or separate, revealing the significance of compromise at the Court. In addition, we find some differences in language content, depending upon who authored the opinion.

Preserving Political Speech from Ourselves and Others

Abstract: This Essay is a case study of how and why strict scrutiny varies between cases decided within a particular doctrinal category (political speech) by a given court (the Roberts Court). Two lines of Roberts Court jurisprudence implicate political speech: federal campaign finance cases and a challenge to the federal statute criminalizing “material support” to designated foreign terrorist organizations. My aim here is to examine the common doctrinal matrix of First Amendment strict scrutiny used in those cases to explore how divergent results emerge from a unified analytic framework. A secondary goal is to illustrate how post-9/11 national security concerns find expression inside familiar and seemingly durable doctrinal frameworks.

Securities Law in the Roberts Court: Agenda or Indifference?

Abstract: Historically, securities law has not been a high priority for the Supreme Court. The first six years of the Roberts Court, however, suggest an upsurge of interest in the federal securities laws. The Roberts Court's average of two cases per year marks a significant increase from the Rehnquist Court’s average. These numbers are deceptive. Analysis of the opinions deciding these cases – and more importantly, the issues debated by the justices – suggests that the Court is not interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation and the relationship of the judiciary to the administrative state. Only in the area of securities class actions is there an inkling of engagement with the specific subject matter. Notwithstanding charges that the Roberts Court is “pro business,” the Court has not charted a consistent course favoring corporate defendants. Instead, the Court has demonstrated a bias toward the status quo, resisting attempts to both restrict and expand – the reach of Rule 10b-5 class actions.

Does It Really Matter? Conservative Courts in a Conservative Era

Abstract: This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendent in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the elected branches of government and make policies that conservative majorities privately prefer but would rather not publicly champion. Nevertheless, progressives have far more to fear at present from the radicals in suits who control the elected branches of government than the radicals in robes who increasing control the judiciary. Conservative Republican judicial appointees are likely to have far more impact on public policy should Democrats regain partial control of other federal institutions. More generally, this paper finds that judicial review in the United States and abroad at the turn of the twenty-first century is contributing to a drift toward libertarianism and should be assessed as such.

Justice, interrupted: The effect of gender, ideology, and seniority at supreme court oral arguments

Abstract: Oral arguments at the Supreme Court are important — they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the justices of the highest court. This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men. We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.