Roberts Court

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

Civil-izing Federalism

Abstract: When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the Court generally votes in favor of robust states’ rights, while the conservative wing votes to impose defendant-friendly federal rules in civil litigation or to require plaintiffs to proceed in relatively hostile federal courts. This Article is the first to focus on the Roberts Court’s treatment of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices’ stances in procedural cases and their federalism commitments is due, at least in part, to the Justices’ understandings of the purposes for, and effectiveness of, the federal civil litigation system. By examining the Justices’ narratives about civil litigation, the Article demonstrates that even as they invoke the language of federalism, the Justices’ positions in procedural cases correlate with the civil litigation interests they seek to protect: business interests for the conservative Justices and access to justice for the liberal Justices. This Article concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the Article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedural jurisprudence that is deferential to states in private civil litigation is likely to create greater access to the courts and thus a more just civil litigation system.

Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?

Abstract: IntroductionIn the infamous 1905 case of Lochner v. New York,1 the Supreme Court struck down the New York state legislature's attempt to institute labor protections for bakers.2 While Lochner has become a touchstone of the contemporary "anti-canon" of constitutional law,3 at the time it was excoriated by the progressive press from the young New Republic to The Atlantic 4 In the following years, bashing the Lochner Court and the threat of "judicial oligarchy" would become a recurring theme for presidential candidates from Teddy Roosevelt to William Jennings Bryan to Robert LaFollette.5 The problem was not just the decision, but the pattern of a hostile judiciary and a failing political system, stymieing the efforts of reformers to tackle the upheavals of an industrializing economy. Today, over a century later, the Supreme Court is again at the center of a series of controversial decisions that seem to tilt the economic balance of power in favor of business and economic elites. From its campaign finance decisions like Citizens United6 to its new invocation of First Amendment religious freedoms as a shield against economic regulation in Hobby Lobby7 to its dismantling of unions in cases like Harris v. Quinn,8 the Roberts Court has been charged with "neo-Lochnerism."9The politics of today's post-financial-crisis era echo the concerns of the post-Gilded Age, pre-New Deal period, with the confluence of increasing economic inequality and dislocation; new forms of concentrated corporate power; a hostile Supreme Court; and a political system marked more by its dysfunction and corruption than its ability to redress these problems. Indeed, the problem of American politics today is not just one of income inequality. A growing body of empirical research highlights the toxic feedback loops between economic and social inequality on the one hand, and political inequality on the other.10 The decline of the countervailing power of unions and community-based organizations, coupled with the increased social and economic ties between policymakers and economic elites, contributes to a skewed political system, which in turn produces policies that favor elites and further exacerbate inequality.11 The citizens and communities most harmed by the modern economy are thus also increasingly unable to leverage political power to change the policies that drive those inequities.The Supreme Court is, in one sense, an obvious front line for the battle to redress problems of economic and political inequality. To the extent that the Court's constitutional interpretation magnifies disparities of political and economic power, it seems logical to target these decisions specifically. But the challenge of economic and political inequality today goes beyond Supreme Court doctrine and constitutional text. The charge of neo-Lochnerism on the Roberts Court opens up an important debate but leaves two critical questions unaddressed. First, what is the substantive content of an alternative, more democratic and egalitarian vision of political economy to counteract the underlying values and judgments apparent in these headline cases? And second, what is a theory of change through which this alternative can be made real, and to what extent does this project necessarily have to involve the Court at all?This Paper addresses these questions by drawing on the political and legal thought emerging from the critique of Lochner-era political economy. During the Progressive Era, the battle against the intellectual edifice that lay behind Lochner-ideas of laissez-faire constitutionalism and political economy, which emphasized the ideal of market-based equality and expressed a hostility towards various attempts at economic regulation- catalyzed an explosion of scholarship and reform activism among a cohort of lawyers, economists, philosophers, and activists. in the legal academy, we are most familiar with the legal realist movement which emerged during this time critiquing the kind of judicial power expressed in Lochner while revealing the realities of ideology and politics operating beneath the veneer of neutral, formalist legal reasoning on the courts. …

Due Process in Civil Commitments

Abstract: One of the Roberts Court's most controversial cases, United States v. Comstock (2010), expanded the powers of mental health workers to indefinitely commit patients. The majority in that case found an intermediate level of judicial proof constitutionally sufficient to intern persons under the federal civil commitment statute. The law provides for the post-sentencing confinement of anyone proven by “clear and convincing evidence” to be mentally ill and dangerous. The statute relies on a standard established by the Court more than thirty years before. The majority in Comstock missed the opportunity to reassess its earlier holding in light of recent psychiatric studies indicating that the ambiguity of available diagnostic tools can lead to erroneous insanity assessments and mistaken evaluations about patients’ likelihood to engage in dangerous activities. In this article, I contend that the “clear and convincing standard” of proof inadequately protects patients’ due process rights because civil commitment hearings can result in severe deprivations of liberty. The beyond a reasonable doubt standard of proof, more commonly associated with criminal cases, is in order because it requires a closer evaluation of the facts, law, and constitutional norms. The multidisciplinary approach I pursue offers a unique framework for resolving a social problem that has been inadequately described in extant legal and psychiatric writings. I reflect on Supreme Court precedents in light of psychiatric studies about the limited reliability of emergency commitments and set out a standard adopted from criminal proceedings to better prevent unnecessary mental hospitalization. Part 1 of the article sets out some of the core problems with the current standard for civil commitment. Part 2 surveys Supreme Court precedents on the topic. Part 3 discusses state statutory schemes for involuntary mental hospitalization, while Part 4 describes the current state of sexual violent predator statutes. Part 5 delves into professional psychiatric literature about the ambiguity of psychiatric diagnoses. Part 6 synthesizes the article’s findings to identify the appropriate burden of proof required to prevent the wrongful infringement on patients’ due process rights.