Roberts Court

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

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 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.

Has the Roberts Court Plurality's Colorblind Rhetoric Finally Broken Brown's Promise?

Abstract: This Essay examines the continuing significance of the Keyes decision to the judicial vision of equality and racial isolation in public education. By comparing efforts to promote educational equality from the Keyes era through today, this Essay asserts that the judiciary has wrongly embraced a colorblind interpretation of the Equal Protection Clause. In so doing, courts have impeded the progress of children in Denver and around the country, ignored highly instructive social science studies on the benefits of desegregation, and broken the constitutional promise of equal citizenship. For future policy makers and lawyers to address these persistent problems, legal educators must equip students with tools to reclaim legal conversations about freedom and equality. The author, Dean Phoebe A. Haddon of the University of Maryland Francis King Carey School of Law, concludes with recollections of her late aunt, Rachel B. Noel, who played an instrumental part in the evolution of the Keyes case.

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.

No Exit? The Roberts Court and the Future of Election Law

Abstract: This article, prepared for a symposium on voting rights in the South Carolina Law Review, examines the future of election law in the Roberts Court. Even before the death of Chief Justice William H. Rehnquist and the announced retirement of Associate Justice Sandra Day O'Connor, election law scholars had declared that the Supreme Court had reached doctrinal interregnum. In the campaign finance arena, the Court's jurisprudence was becoming increasingly incoherent; voting rights law was said to be at law with itself; partisan gerrymandering claims in flux; and the question of Supreme Court oversight of the nuts-and-bolts of elections after Bush v. Gore a big mystery.With the change of two Justices on the Supreme Court, exit from doctrinal incoherence and uncertainty becomes possible. The replacement of Chief Justice Rehnquist with new Chief Justice John Roberts and the replacement of Justice O'Connor with a new Justice appointed by President Bush could provide an opening for major changes in Supreme Court election law doctrine. This is especially true with Justice O'Connor's departure, because she has held the swing vote in key election law cases.What sort of changes should we expect from the Roberts Court? Making predictions is exceedingly difficult when the swing votes likely will be held by those who have not expressed (or not expressed recently) views on these subjects, and concern for respecting (even wrong-headed) precedent could prove a strong force. And Justices' views certainly may change over time. Still, I work under the assumption that a conservative president who had apparently committed himself to appointing Justices in the mold of Justices Thomas and Scalia is unlikely to appoint Justices who in fact move the Court to the left, and could well move the Court to the right in key election law cases.The result is that 5-10 years from now, the ground rules for American political competition could undergo a major change. Within the next decade, we could well see deregulation of campaign financing, a limiting of Congressional power to impose national solutions to problems of minority voting rights, and an upholding of state power to redistrict for partisan gain and impose increasingly draconian election administration tools enacted in the name of fraud prevention. The ability of states to manipulate election rules for partisan gain may present the greatest danger, as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.

Backsliding: The United States Supreme Court, Shelby County v. Holder and the Dismantling of Voting Rights Act of 1965

Abstract: The Supreme Court, having found that certain states received unequal treatment under the Voting Rights Act, struck down the Act’s preclearance provision in its Shelby v. Holder holding. The Author, in an effort to critique the conclusion reached by the Court, argues that these states, historically responsible for obstructing the ability of African-Americans to vote, continue to engage in practices that result in voting irregularities and acts of discrimination in the electoral process. Today, this strategic disenfranchisement rears its head in the form of legislation making voting difficult or impossible for many minority voters, a criminal justice system that targets racial minorities, and a lack of representation for citizens of color in both federal and state offices. The Author argues that without a preclearance requirement, “second generation” barriers to voting — such as the passage of voter ID laws and the dilution of black voting power through gerrymandering — will be constructed. The Author cites statistics on hate crimes based on racial bias, the disproportionate imprisonment of minorities, and the limited representation of African Americans in politics to support the main argument that racial disenfranchisement has persisted into the present day. The Author concludes that while the Voting Rights Act has never addressed all of the strategies used to suppress the black vote, the Supreme Court should still consider them if it wants to consider fully the legacy of slavery and the persistence of racism.