Roberts Court

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

Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play

Abstract: The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court’s rulings have made clear, any reevaluation of the exclusionary rule’s future will be conducted under the now familiar rubric of whether the rule’s “benefit” of deterring police misbehavior outweighs the “cost” of lost evidence and convictions. This essay argues that if any such reevaluation does occur, the Court must take into account something overlooked in evaluations of the past: the benefits of a suppression hearing itself. The hearing acts much like a morality play for those involved in the nitty gritty of law enforcement – police, judges, prosecutors, and defense attorneys – by instructing everyone involved both as to the Fourth Amendment’s rules and why those rules are of a constitutional magnitude mandating honor and respect. And because the exclusionary rule reaches a wide variety of police behavior – unlike civil suits and disciplinary proceedings which reach only the most egregious instances of misbehavior – the suppression hearing becomes an invaluable public forum for providing transparency and promoting police compliance with the Fourth Amendment. In short, the suppression hearing is the exclusionary rule’s unsung hero, and in the end offers the Court a means to find the truest measure of the exclusionary rule’s costs and benefits.

The Marrow of Tradition: The Roberts Court and Categorical First Amendment Speech Exclusions

Abstract: TABLE OF CONTENTS INTRODUCTION I. THE RISE AND DECLINE OF CATEGORICAL SPEECH EXCLUSIONS II. THE SPEECH-PROTECTIVE ROBERTS COURT: REJECTING NEW CATEGORICAL EXCLUSIONS III. THE SPEECH-RESTRICTIVE ROBERTS COURT: ENTRENCHING AND DEEPENING OLD CATEGORICAL LIMITS A. The Narrowness of the Speech-Protective Decisions B. Using Tradition to Justify Categorical Exclusions IV. ONCE MORE INTO THE BREACH? CONCLUSION INTRODUCTION The Roberts Court has made a lot of First Amendment law. Since Chief Justice John Roberts took the Supreme Court's helm in 2006, the Court has issued decisions on the merits in about thirty-five free speech cases. With greater vigor than the late Rehnquist Court, the present Justices have waded into free speech controversies ranging from violent video games (1) to commercial speech (2) to campaign finance regulation. (3) In all those areas, the Court has handed important victories to First Amendment claimants. Free speech advocates' conventional (not to say universal) view of this Court is adoring. Renowned First Amendment lawyer Floyd Abrams has stated, "It is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this." (4) Burt Neuborne, a leading academic and legendary civil liberties lawyer, concurs: "This court is the strongest First Amendment court in history.... The current majority uses the First Amendment as a powerful tool of deregulation that eliminates virtually all government efforts to regulate anything to do with the flow of information." (5) Former judge and current Baylor University President Kenneth Starr has called the Roberts Court "the most free speech Court in American history." (6) Investigation of those bold claims must start in what, based on recent history, might seem like an obscure judicial precinct: cases about categories of speech that the First Amendment does not protect, like obscenity and fighting words. For nearly three decades the Supreme Court said very little of note about such categorical speech exclusions. (7) The Roberts Court, however, has given this neglected neighborhood a makeover. Some of this Court's most important, striking First Amendment decisions address proposals for new categorical exclusions or applications of familiar categorical doctrines. The Justices have not just resolved categorical issues. Rather, they have changed the law of categorical exclusions, announcing a new guiding star for assessing categorical First Amendment claims: tradition. According to the Roberts Court, a categorical exclusion can only pass constitutional muster if it reflects a substantial tradition of leaving speech open to regulation. In two prominent decisions, this focus on tradition has led the Court to reject government calls to make a new categorical exclusion for certain violent images. (8) Those decisions serve as exhibit A for commentators who praise the Roberts Court as strongly speech protective. The decisions that reject new categorical exclusions deserve some of the acclaim they have received. Unfortunately, their speech-protective results carry limited precedential weight. Worse, these decisions actually undermine speech protection in other cases by tying categorical exclusions to the Court's account of what our law has traditionally let governments regulate. That linkage has led the Court to reinforce or fortify nonprotection for pandering nonexistent child pornography, freely using copyrighted material, and making legislative votes. The Court's most recent categorical speech decision, United States v. Alvarez, potentially advances expressive freedom by refusing to categorically exclude lies from First Amendment protection. (9) The Justices, however, could not agree on a rationale in that case, robbing it of precedential force. (10) The categorical speech cases, celebrated by the Roberts Court's enthusiasts, provide only limited, very mixed benefits for any robust model of free speech. …

Toward a Future, Wiser Court: A Blueprint for Overturning District of Columbia v. Heller

Abstract: Introduction I. The Power of Dissenting Opinions II. Heller A. Majority Opinion B. Justice Stevens's Dissenting Opinion III. Landmark Cases from Future, Wiser Courts A. From Racism to Equality: Plessy and Brown 1. Plessy v. Ferguson 2. Brown v. Board of Education B. From Repression to Sexual Freedom: Bowers and Lawrence 1. Bowers v. Hardwick 2. Lawrence v. Texas C. Other Illustrative Cases from Future Courts IV. Factors Leading to a Decision Being Overturned A. Retrograde Decision in Face of Strong Social Movement B. Strength and Guidance of Prior Dissent C. Composition of the Court at the Time of Decision D. The Degree of Consensus Among the Court V. Blueprint for Overturning Heller Conclusion INTRODUCTION Justice John Paul Stevens recently bantered to Time Magazine that, if he could fix one thing about the American judicial system, it would be to make all of his dissents into majority opinions. (1) Banter aside, he stressed that if he could choose only one of his dissents to turn into a majority opinion, it would be his dissent in District of Columbia v. Heller. (2) Specifically, he said that he "would change the interpretation of the Second Amendment. The Court got that quite wrong. Gun policy should be handled by legislatures and by states, not by federal judges appointed for life." (3) With that same hope, it is rumored that, during a lecture to the Harvard Club of Washington, D.C., Justice Ruth Bader Ginsburg expressed her strong desire that Justice Stevens' dissenting opinion in Heller will become the majority opinion of "a future, wiser Court." (4) Heller is still the subject of national debate and is one of the more controversial decisions from the Roberts Court. The Court issued its pivotal 5-4 ruling on June 26, 2008, (5) finding for the first time that the Second Amendment conferred an individual right to posses firearms unrelated to service in a well-regulated militia. (6) In its analysis, the Court concluded that "central" to the Second Amendment is the natural right to self-defense, and by extension, the right to possess handguns for self-defense within the home. (7) In finding so, the Court struck down a decades-old D.C. law that banned handgun possession and required that firearms in the home be stored safely. (8) Justice Stevens issued one of two dissenting opinions. (9) In his dissent, he argued passionately that the majority rendered "a dramatic upheaval in the law" and decided the case on "a strained and unpersuasive reading" of the Second Amendment. (10) He emphasized that the Second Amendment does not contain any "statement of purpose related to the right to use firearms for hunting or personal self-defense." (11) He also stressed that the Court's ruling overturned long-standing precedent announced in United States v. Miller, which held that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness of" the state militia. (12) The decision in Heller raised the obvious question of its potential impact on existing gun control laws and whether they will stand up to a Second Amendment challenge. (13) But few have questioned whether a "future, wiser Court" will simply reverse Heller. Our Article provides a blueprint for how Justice Ginsberg's hope may be realized. In Part I, we discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts. In Part II, we analyze Heller, paying particular attention to the tensions that the conflicting majority and dissenting opinions raise. In Part III, we analyze landmark cases from future, wiser Courts that overturned stale or decidedly wrong precedent. In Part IV, we draw from these examples in order to evaluate the conditions that lead to overturning a Supreme Court case. Finally, in Part V, we apply the framework to Hellerand suggest possible ways to author its reversal. …

Not a Free Press Court

Abstract: I. INTRODUCTIONThe last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking.1 On the other hand, cable news is prospering, mobile devices such as iPads and smart phones are "adding to people's news consumption,"2 and many "new media" outlets appear to be thriving.3 Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media.4 The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two rulings in FCC v. Fox Television Stations,5 both of which avoided the looming First Amendment issue they contained, and the only decision involving "new media" is Brown v. Entertainment Merchants Ass'n.6 Media lawyers, therefore, are still trying to gain insight into how the Roberts Court envisions the role of the institutional press and whether existing constitutional protections for the press might be eroded or strengthened in coming terms.This essay, taking its cue from Erwin Chemerinsky's recent lecture, Not a Free Speech Court,7 attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, a number of patterns emerge from the Roberts Court's First Amendment decisions thus far, some which appear to be good for the media and some less positive. The good news is that the Roberts Court appears committed to protecting unpopular speech,8 limiting the spread of "medium-specific" First Amendment doctrines to new media,9 and broadly defining speech of public concern.10 The bad news, at least for broadcasters, is that the Roberts Court is not yet ready to free them from the FCCs content-based regulatory oversight,11 and the worst news for all media is that the Court appears to see the "Fourth Estate" as little more than a self-serving slogan bandied about by media corporations. 12II. PROTECTING UNPOPULAR SPEECHThe media can take heart from the strength of the Roberts Court's commitment to protecting unpopular speech, though famed First Amendment attorney Floyd Abrams is waxing hyperbolic when he asserts that "no prior Supreme Court has been as protective as [the Roberts Court]"13 in protecting unpopular speech. Abrams bases his assertion, no doubt, on decisions like Snyder v. Phelps}* which upheld the rights of the Westboro Baptist Church to protest at military funerals despite the pain inflicted on military families,15 and United States v. Stevens ,16 which struck down a federal statute making it a crime to distribute videos depicting the illegal killing, wounding, or torture of animals.17 Both Snyder(TM) and Stevens affirm that the government may not suppress distasteful speech, even when most citizens find it morally reprehensible and it offers little social value.Though Stevens might be chalked up to Congress's sloppy drafting, the Court in United States v. Alvarez reaffirmed that the First Amendment protects even "speech we detest."19 Alvarez struck down a federal statute making it a crime for a person to falsely claim that she received a military decoration or medal authorized by Congress.20 Though the Alvarez Court was divided,21 the decision affirmed that the government lacks the power to censor lies - even lies that offend patriotic values - absent a showing of significant harm.22 Although most would hope that the media do not need protection for outright lies, the Court's decision is a comforting signal that the Roberts Court will protect unpopular speakers, regardless of their ideology.III. NO EXTENSION OF "MEDIUM-SPECIFIC" REGULATIONThe principle that the government may not regulate speech because it offends many, or even most, citizens may be especially beneficial to "new media. …

Weighty Considerations: Facial Challenges and the Right to Vote

Abstract: In 2008, the Supreme Court stressed the difference between "facial" and "as-applied" review in a number of important decisions. Although this reasoning was not new (there were a number of cases under the Rehnquist Court addressing this issue), the Roberts Court has taken a more "minimalist" or hard-line view that facial review is almost never merited. The approach stands in contrast to the 2004 decision in Sabri v. United States, in which the Court recognized that deviation from the usual approach to facial review could be made on the strength of "weighty considerations." This Comment argues that the Court's increased emphasis on the use of as-applied litigation needs to be tempered to recognize contextual considerations that make facial review more appropriate. In particular, I focus on the right to vote as the key example of a situation where, among other things, the right at stake, the need for timely review, and the lack of clarity in the field support facial review.