Roberts Court

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

Constitutional Avoidance and Anti‐Avoidance by the Roberts Court

Abstract: At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of “constitutional avoidance.” That doctrine (also known as the “avoidance canon”) encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court - without objection from single Justice - embraced a manifestly implausible statutory interpretation to avoid the constitutional question. A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the Court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.What explains the divergent approaches in the two cases, and what does the divergence tell us about the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court’s actions, ranging from the most charitable to least charitable reading of the Court’s motives. First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court’s movement of the law in its preferred policy direction. While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court. Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.

The World According to, and after, McCutcheon v. FEC, and Why It Matters

Abstract: The editors of the Valparaiso Law Review had the good sense to hold their symposium conference “Money in Politics: The Good, the Bad, and the Ugly” the week the Supreme Court issued its decision in McCutcheon v FEC At the symposium, one of the authors of this article, Liz Kennedy, presented a talk entitled, “The Supreme Court, the Constitution, and the Crisis of Confidence in American Democracy,” which explained how the Roberts Court has misunderstood the democratic interests at stake in its recent campaign finance cases The Roberts Court has applied a blinded, highly abstract First Amendment doctrine, which ignores the distortion of democratic responsiveness caused by big money in politics We see this play out in anti-majoritarian policy outcomes that demonstrate the lack of meaningful representation experienced by the non-wealthy This type of endemic political inequality constitutes a corruption of democracy because a democratic system of government is one in which elected officials are responsive to the views of each citizen considered as political equals Accordingly, to the extent that the First Amendment is understood to be in service to democracy, it cannot be read as permitting a small, wealthy minority to accrue political power deriving from their wealth — that, after all, is the definition of a plutocracyThis article expands upon Ms Kennedy's presentation, further describing the jurisprudential and policy mistakes made by the controlling plurality in McCutcheon, including its inconsistency with important precedent Specifically, Part II describes McCutcheon’s plurality holding and its direct practical effects on campaign fundraising Part III explains why the expected influx of additional money into politics will exacerbate democratic harms that already damage our republic Part IV considers McCutcheon’s place in the Court’s prior jurisprudence in this area Part V discusses the path towards the democracy we deserve Finally, Part VI concludes by reiterating the movement towards a pro-democracy understanding of the Constitution

Rights, Remedies and Facial Challenges

Abstract: This brief comment extends upon a key point raised by Caitlin Borgmann’s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann’s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts’ manipulation of procedural rules regarding as-applied and facial challenges to cloak its overruling of substantive precedent. This comment also suggests that, given an environment of hostility towards facial challenges, civil rights litigants might better succeed in preserving constitutional rights by seeking narrower injunctive remedies against unconstitutional regulations rather than seeking total invalidation of such regulations.

Four Principles for Digital Expression (You Won't Believe #3!)

Abstract: At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law - the Communications Decency Act - that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the powerful. The “special justifications or regulation of the broadcast media” had no application to the “vast democratic forums of the Internet.” Twenty years later, the Roberts Court had an opportunity to explain how the First Amendment should operate in the mature Internet of 2017. Despite the interval of time, the Roberts Court of 2017 took a remarkably similar approach to the Rehnquist Court of 1997. In Packingham v. North Carolina, Justice Kennedy announced the start of the “Cyber Age.” The Internet was the virtual public square, much like streets and parks. Because the “Internet” was still in its infancy, its impact on expression was not fully understood. The expressive potential of the “Internet” would be imperiled in the absence of a hands-off approach. Justice Kennedy noted that someday, the Internet might be used for anti-social ends. Until then, extreme caution was in order so the Internet’s democratic potential could be realized. Contrary to the Court’s thinking, the Internet is no longer in its infancy. It has matured at a breathtaking pace. Virtually all aspects of our public and private lives - politics, child-rearing, work, health, shopping, and sex - involve the Internet. If online discourse ever accorded with the Court’s vision, it does not now. Rather than just the virtual town square, the “Internet” is bound up in everything and everywhere-whether the workplace, library, coffee shop, gym, park, public street, town square, or bedroom. This article debunks the Court’s magical thinking about the Internet. The Internet’s expressive opportunities are not available to all on equal terms, thanks to the wide availability of personal data. Online platforms highlight favored content while burying disfavored ones. Search engines produce different, and less advantageous, results to people of color and women than to men. Cyber mobs shove people offline with doxxing, swatting, and other privacy-invasive forms of abuse. Online platforms fuel polarization and filter bubbles, ensuring an electorate without access to a full range of ideas and information. Fake news spreads like wildfire on social media platforms that are often people’s main source of information. We need clear principles to guide and secure meaningful digital free expression. This article charts a path to provide just that. Part I exposes crucial myths surrounding the digital speech and privacy in our networked age. Part II offers a conception of free speech based on a distrust of power, both public and private. Even if doctrinal analysis does not account for private barriers to free expression, the project of free expression should. Part III lays out four essential preconditions for a theory and a system of free expression in the digital age. These preconditions are substantive and procedural. They require legal intervention and extra-legal efforts. They draw some inspiration from due process guarantees and some from commitments to equality. Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley.

Reviving the Right to Vote

Abstract: Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail. Many election law scholars worry about these lawsuits, claiming that they needlessly "racialize" fundamentally political disputes, distort important legal doctrines designed for other purposes, and provide an inadequate remedy for a fundamentally distinct electoral problem. This Essay argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well have salutary effects. The focus is on the Supreme Court's recent decision in LULAC v. Perry, the most recent example of the sort of judicial decision about which election law scholars fret. Unable to articulate any constitutional problem with a blatant partisan gerrymander in Texas, the Supreme Court found traction under the Voting Rights Act and held that a portion of that gerrymander diluted minority voting strength in the southwest portion of the State. A close reading of that holding as well as the Court's refusal to provide relief on a related claim brought by African-American voters in Fort Worth reveals that the race-based injuries presented in LULAC were hardly an ancillary distraction obscuring the core dispute, but instead, a predictable consequence of the gerrymander itself. As important, the surprising manner in which the Court resolved the VRA claims suggests a nascent conception of political harm experienced by all voters when system is rigged to block competition. In other words, LULAC suggests that Justice Kennedy may find within the Voting Rights Act itself the standard he has been seeking for managing claims of partisan gerrymandering.