Roberts Court

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

Neutral Principles and Some Campaign Finance Problems

Abstract: This Article has both positive and normative objectives. As a positive matter, it shows that the Roberts Court’s campaign finance regulation jurisprudence can be best explained as a systematic effort to integrate that case law with the rest of the First Amendment, making the neutral principles refined in other social contexts govern this more politically salient one as well. It demonstrates that the typical Roberts Court majority in campaign finance cases follows precedent, doctrine, and traditional First Amendment theory, while the dissents tend to carve out exceptions at all these levels.As a normative matter it argues that following neutral principles is particularly important in the application of the First Amendment to campaign finance for three reasons. First, campaign finance disputes bear directly on the political process that determines substantive results across the entire legislative policy space, making the danger of political decision making particularly high. Second, the First Amendment itself reflects a distrust of government officials, and the more a constitutional provision reflects an economy of distrust, the more it requires judicial constraint, which adherence to neutral principles can provide. Third, given that politicians have much to gain from skewing campaign finance regulations in their favor and judges are appointed by politicians, neutral principles help avoid partisanship and the appearance of partisanship in judicial decision making. Finally, the Article confronts the most important arguments for departing from standard First Amendment principles in campaign finance and demonstrates that they have far-reaching implications because they would allow the legislature to regulate the press or even academics because of their disproportionate influence in politics. But it also shows that, even taken on their own terms, the proposals for judicial reform of First Amendment law in the campaign finance area are deeply flawed. In particular, the idea that the Constitution permits legislators to restrict the freedom of speech for fear it will distort their decision making has no basis in the Constitution. The Constitution provides no baseline for judging distortion, and indeed, its structure permits legislators to take into account the information generated by the First Amendment’s spontaneous order of freedom rather than follow raw popular sentiment.

The Roberts Court and the Limits of Antitrust

Abstract: IntroductionOne often hears two things about the Roberts Court's treatment of antitrust. The first is that this Court has displayed a greater interest in antitrust than its direct predecessor.1 That seems accurate. Whereas the Rehnquist Court showed little enthusiasm for antitrust cases in its later years, the Roberts Court issued seven antitrust decisions in its first two years alone.2 Some have attributed the trend toward more antitrust cases, and more business cases generally, to Chief Justice Roberts's years in private practice, during which he confronted a number of business and antitrust issues.3 Whatever its cause, there does seem to be an uptick in enthusiasm for antitrust cases on the current Supreme Court.The second oft-heard observation about the Roberts Court's antitrust decisions is that they betray a significant pro-business (or, pejoratively, anti-consumer) shift on the Court. Not surprisingly, left-leaning advocacy groups have repeatedly sounded this refrain.4 But even respected academics and leaders of the antitrust bar have construed the Roberts Court's antitrust decisions as being radically and reflexively probusiness. 5 For example, noted legal scholar Erwin Chemerinsky recently dubbed the Roberts Court "the most pro-business Supreme Court there has been since the mid-1930s" and has characterized the Court's antitrust decisions as "favoring business over consumers."6 Chemerinsky, by his own admission, is not an antitrust expert.7 The meme he recites has nevertheless been embraced by others who do have substantial antitrust expertise. For example, William Kolasky, a former Deputy Assistant Attorney General in the Antitrust Division of the U.S. Department of Justice and an associate editor of the American Bar Association's Antitrust magazine, made the following observations in 2008:Our Supreme Court, especially under the leadership of Chief Justice John Roberts, seems equally intent on cutting back on private enforcement. It has been more than fifteen years since the Supreme Court last decided an antitrust case in favor of a plaintiff. Over this fifteen-year period, plaintiffs have gone 0- for-16, with not a single plaintiff winning an antitrust case in the Supreme Court since the first George Bush was president. This record led Antitrust to ask in its last issue whether the Supreme Court's recent antitrust decisions represent "The End of Antitrust as We Know It?"8The central claim of this Article is that the second common assertion about the Roberts Court's antitrust jurisprudence-that it is probusiness and anti-consumer and represents a radical departure from the past-is wrong and reflects a misunderstanding of the antitrust enterprise. As a body of law regulating business conduct for the benefit of consumers, antitrust is inherently limited. Once one accounts for the limits of antitrust, the rulings of the Roberts Court, rather than "favoring business over consumers," seem calculated to maximize antitrust's effectiveness to the ultimate benefit of consumers. Specifically, the Roberts Court's antitrust cases embrace a decision-theoretic approach that seeks to minimize the sum of the decision and error costs that inevitably result from antitrust adjudication.This Article proceeds as follows: Part I sets forth the limits of antitrust and explains how a decision-theoretic approach, in light of these inherent limits, ultimately benefits consumers by maximizing the overall effectiveness of the antitrust enterprise.9 Part II then discusses the Roberts Court's antitrust decisions, demonstrating how each coheres with a decision-theoretic approach.10 Part III looks to the future and predicts how the Roberts Court, harnessing the insights of decision theory, will resolve several antitrust issues that are likely to come before it.11I. The Limits of Antitrust and the Need for a Decision- Theoretic ApproachWhen it comes to ensuring that consumers have access to low prices, high quality goods, and product variety, there is no better regulator than competition. …

Justice Kennedy's Stricter Scrutiny and the Future of Racial Diversity Promotion

Abstract: More than half a century after Brown v. Board of Education, the Supreme Court is closely and bitterly divided about the meaning of that decision, and about the meaning of the Equal Protection Clause to which it appealed. The first major decision of the Roberts Court, Parents Involved in Community Schools v. Seattle School Dist. No. 1, took a small step away from a constitutional vision that permits racial discrimination by the government whenever courts believe that the effects on society will be salutary.With respect to non-remedial affirmative discrimination, remarkably little has changed since the Bakke decision in 1978.At that time four members of the Court would have allowed the government virtually unfettered discretion to practice what they regarded as benign forms of racial discrimination. Three decades later, four members of the Court take essentially the same position, and will clearly not be deterred by any of the contrary precedents that have built up during that period.In 1978, four Justices read the Civil Rights Act of 1964 to forbid racial discrimination without regard to the motive for the challenged policy. Today, four members of the Court would give the Fourteenth Amendment (and perhaps also the Civil Rights Act) a roughly similar interpretation, though it is not clear how far they would go in challenging existing precedent.In 1978, Justice Powell's middle position was that racial discrimination practiced for judicially approved diversity purposes is permissible, but that care must be taken to limit its reach and obscure the identity of its victims. Today's swing Justice has expressly endorsed Powell's legal formula, although Kennedy's application of this approach seems less latitudinarian than the one suggested in Powell's Bakke opinion.How much longer will this equilibrium remain stable? We seem to be one vote away from significant progress toward a relatively robust enforcement of antidiscrimination principles. We are also but one vote away from the opposite approach, which would endorse virtually any kind of discriminatory laws that a court believes were "enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class." It is hard to believe that the Court won't shift in one direction or the other fairly soon. But one might have said the same thing in 1978.

The New Commerce Clause Doctrine in Game Theoretical Perspective

Abstract: The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the new doctrinal limitations with the traditional broad scope of the post-New Deal Commerce Clause cases. This Article's new game theoretical analysis satisfies these objectives by offering a compelling normative account of Commerce Clause doctrine and a framework for applying the new methodology to actual cases. The Rehnquist Court announced the new Commerce Clause doctrine in the 1995 decision, Lopez v. United States, which struck down the Gun-Free School Zones Act. The Lopez Court changed the longstanding test governing the scope of Congress's Commerce Clause powers, set out in the infamous 1942 case, Wickard v. Filburn. While prior cases had used "economic" to qualify the effects that the underlying regulated activity had on commerce, the Lopez Court instead used economic to qualify the activity itself. In the 2000 decision, Morrison v. United States, the Court applied the non-economic activities test to strike down the civil remedies provisions of the Violence Against Women Act despite extensive Congressional findings. Most recently, in the 2005 case, Gonzales v. Raich, the Supreme Court applied this test to sustain the Controlled Substances Act's complete ban on private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act, despite the apparent local nature of the regulated activity. Notably, the Raich Court produced four separate opinions, none of which offered a satisfying framework that reconciles the expansive post-New Deal Commerce Clause precedents with the recent retrenchments represented in Lopez and Morrison. This Article traces the Lopez Court's doctrinal modification, explores its implications, and offers an alternative game theoretical analysis that considers the need for a central coordinating authority to effectuate the Congressional policy enacted pursuant to the Commerce Clause. Drawing upon the prisoners' dilemma and the multiple Nash equilibrium bargaining game, this Article grounds the larger goals of the Commerce Clause doctrine in an effort to ensure that Congress has the necessary regulatory authority with which to implement desired policies substantially affecting interstate commerce that states, acting in their individual capacities, would either be unable to implement or would be prone to obstruct. The analysis reconciles the expansive post-New Deal Commerce Clause cases with the more recent retrenchments, embodied in Lopez and in Morrison. While this Article will offer a critical assessment of the Lopez non-economic activities test and of the application of that test in Raich, its larger objective is consistent with the doctrine's goals as expressed by now-retired Associate Justice Sandra Day O'Connor. The goal of Commerce Clause doctrine is to allow Congress to "regulate more than nothing . . . but less than everything." Satisfying these objectives is essential to preserving the integrity of our federal constitutional system which, in contrast with its state counterparts, rests upon the concept of delegated rather than plenary powers. This Article's analysis, which uses game theory to satisfy these goals, should have broad appeal to members of the Roberts Court.