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Roberts Court

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


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Journal Article
TL;DR: In this paper, the authors examine the first five years of the Roberts Court and conclude that the Court's two recent decisions on taxpayer standing to challenge alleged Establishment Clause violations demonstrate that Chief Justice Roberts knows how to engage in stealth overruling when he wants to, and how to make those moves consistent with a formal commitment to judicial humility.
Abstract: This Essay considers methods by which a Supreme Court Justice inclined to weaken precedent may do so without explicitly overruling cases. Adding to the literature examining "stealth overruling" and the dynamics of multi-judge courts, it examines instances from the first five years of the Roberts Court where Chief Justice Roberts acted in a way consistent with that of a judge who strategically situates himself among his colleagues so as to erode precedent while appearing to uphold it. The Essay does not speculate that the Roberts Court, or Chief Justice Roberts himself, is any more inclined than past Courts or Justices to overrule precedent, whether forthrightly or by engaging in strategic positioning that enables overruling by stealth. However, it does suggest that he has employed several methods of implicitly weakening precedents short of explicitly overruling them. These examples demonstrate that Chief Justice Roberts knows how to engage in stealth overruling when he wants to, and how to make those moves consistent with a formal commitment to judicial humility. After providing these examples, the Essay then illustrates the limitations of such a strategy by examining the Court's two recent decisions on taxpayer standing to challenge alleged Establishment Clause violations. The Essay concludes by offering some tentative observations about the intersection of stealth overruling and the dynamics of multi-judge courts and by suggesting areas for further study.

1 citations

Journal ArticleDOI
01 Jan 2014
TL;DR: In this paper, the authors track the development and consequences of the Implied Exemption doctrine and conclude that, given the chance, the Roberts Court will uphold it and evaluate its impact on agency behavior and offer modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.
Abstract: Forty years ago, in Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma, the Supreme Court reserved a critical question that the federal courts have endeavored to answer. In so doing, the lower courts forged the novel common law doctrine of “implied exemption,” which releases agencies from National Environmental Policy Act obligations when they undertake “non-discretionary” actions. This Article tracks the development and consequences of this largely unnoticed but influential doctrine and concludes that, given the chance, the Roberts Court will uphold it. It also evaluates the doctrine’s impact on agency behavior and offers modifications that would realign the incentives of agencies and courts as the doctrine matures and spreads to other statutes.

1 citations

01 Jan 2015
TL;DR: The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court's shadow docket, a range of orders and summary decisions that defy its normal procedural regularity.
Abstract: The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity. I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, * Neubauer Family Assistant Professor of Law, University of Chicago Law School. Thanks to Judith Miller for helpful conversations in the course of conceiving this piece, and to Josh Chafetz, Nathan Chapman, Justin Driver, Roy Englert, Jeff Fisher, Chad Flanders, Dina Mishra, Erin Murphy, Zach Price, Richard Re, and Mark Shawhan for subsequent comments on it. Further thanks to Nickolas Card for excellent research assistance and the Alumni Faculty Fund and SNR Denton Fund for research support. Finally, thanks as well to friends and readers at the Volokh Conspiracy, http://volokh.com, where some of my thoughts on these topics first appeared. New York University Journal of Law & Liberty [Vol. 9:1 2 and should make us skeptical of proposals to depersonalize the Court. Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court’s selections are fair. I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

1 citations

01 Apr 2016
TL;DR: For example, the authors analyzes the voting behavior of both Chief Justice Roberts and Justice Kennedy due to their "pivotal positions on the Court, controlling its decisions in most major constitutional cases" (Clayton and Christensen 2008; Clayton and McMillan 2012).
Abstract: IntroductionThe Roberts Court is an interesting era to study because the Court decided a number of important constitutional issues in the past few years and those decisions continue to influence our lives. One example is Chief Justice Robert's pivotal vote in the National Federation of Independent Business (NFIB) v. Sebelius ruling. As similar to Chief Justice John Marshall's strategic ruling in Marbury v. Madison (1803), Roberts shrewdly used his decision in NFIB v. Sebelius to "defuse a potential political storm" that preserved the prestige of the Court while expanding the legal philosophy of national supremacy (White 2012, 371). In 2012, Roberts surprised conservatives when he joined with Justice Kennedy and the liberal block of justices to rule that the federal government, not the states, controls the enforcement of the immigration laws, a decision that blocked most of Arizona's immigration law (Savage 2013, 1). The Chief Justice had worried publicly about the acute ideological divisions on the Court and the impact these have on its institutional legitimacy (Clayton and Christensen 2008). Jeffrey Rosen described the chief justice as a "fierce defender of the Court and its institutional legitimacy" (Farias 2016). Moreover, "the chief has made it clear how much he cares about preserving the court's legitimacy in these polarized times, and this term will be a real test of that vision" (Rosen 2007). If the Chief Justice adopts a moderate approach to deciding cases, is it to convince the public that the Supreme Court is above ideology in order to preserve institutional legitimacy?This article analyzes the voting behavior of both Chief Justice Roberts and Justice Kennedy due to their "pivotal positions on the Court, controlling its decisions in most major constitutional cases" (Clayton and Christensen 2008; Clayton and McMillan 2012). Following Roberts key vote in NFIB v. Sebelius, some legal analysts claimed that Roberts may be establishing his authority over the Court and displacing Kennedy as the "pivotal justice" (Tribe 2012; Winkler 2012). Each year becomes "tougher to label Roberts. As chief justice, he must balance his judicial philosophy against the court's and his own legacy" (Wolf 2015). With the untimely death of Justice Scalia, Roberts will have to decide what role he wants to play, whether he should moderate his views to remain in the majority, or be confined to "a conservative minority" on the Court (Stern 2016).When siding with the majority, the role of the Chief Justice permits him to assign the majority author. This gives Roberts significant control over the direction of the Court. During his career, Roberts has had more 5-4 splits than any other chief justice in Court history (Lapidos 2012).For the 2012-2013 term, Roberts voted 62% with the majority in thirteen out of twenty-one 5-4 decisions (HarvardLaw Review 2013). Moreover, during the 2013-2014 Court term, the Chief Justice joined the majority 73% of the time in eight of the eleven 5-4 decisions (Harvard Law Review 2014). However for the 2014-2015 Court term, Roberts joined the majority only 30% in ten 5-4 decisions (HarvardLaw Review 2015).Nevertheless, many Supreme Court observers call the contemporary Court the "Kennedy Court," because Justice Kennedy is often described as the median justice (Cole 2015). The pivotal vote on the current Supreme Court usually belongs to Kennedy, who in closely divided cases is in the majority leaning conservative. Conversely, Kennedy has voted liberal more than conservative in 5-4 cases during the current term (Parlapiano, Liptak, and Bowers 2015). During the 2014-2015 Court term, Justice Kennedy voted 70% of the time with the majority in the ten 5-4 cases. Moreover, Justice Kennedy was in the majority in 5-4 cases more than any other justice at 87% during the 2012-2013 Court term. There were 23 cases decided 5-4 during that term. Kennedy was in the majority in 20 of them. In the 5-4 decisions, Kennedy sided with the conservative bloc 43 percent of the time and the liberal wing 26 percent of the time (Red State: The Supreme Court in Review, 7/1/2013). …

1 citations

Posted Content
TL;DR: In this paper, an extended essay plays off the Supreme Court's recent decision in Hein v Freedom From Religion Foundation, Inc, 127 S Ct 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause.
Abstract: This extended essay plays off the Supreme Court's recent decision in Hein v Freedom From Religion Foundation, Inc, 127 S Ct 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach the establishment clause and the judiciary's role in policing government support for religion The essay also demonstrates how what the Court terms a "generalized grievance" for which justiciability is denied unless Flast permits taxpayer standing, necessarily involves a claim where a structural clause of the Constitution is said to be violated rather than a rights-based claim The above issues are all the more interesting because so far Hein is the only church-state case to come before the Supreme Court since the two newest justices, Chief Justice Roberts and Justice Alito, were appointed

1 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
20231
20229
20212
20209
20196
201812