Roberts Court

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

Be a Liar or You're Fired! First Amendment Protection for Public Employees Who Object to Their Employer's Criminal Demands

Abstract: There is something profoundly disturbing, almost schizophrenic, about our approach to human rights. We have fought wars, millions of us have served in the military, and several hundred thousand Americans have died, defending our country and protecting our freedom of speech and other rights. Yet we have created a legal system that leaves those rights in the wastebasket when we go to work.-Lewis Maltby1I. What Happened to the Perks of Government Work? Public Employee Free Speech in the Roberts Court EraPublic perception of the Roberts Court has been defined, to a significant degree, by its First Amendment jurisprudence.2 Defending free speech has been hailed as one of the Court's "signature projects."3 However, as some commentators have noted, once one looks beyond the high-profile cases, the Roberts Court has been decidedly less pro- speech.4 Recent Supreme Court rulings have not looked kindly upon free speech claims raised by students,5 humanitarian organizations,6 and, most pertinent for this Note, public employees.7 The apparent disparity between the treatment of corporate and financial interests, on the one hand, and the interests of labor, students, and humanitarian organizations, on the other, prompted one scholar to declare that "|!|he Roberts [C|ourt strongly protects speech that it likes, while allowing regulation of speech it disfavors."8Garcetti v. Ceballos, in particular, has drawn intense criticism.9 In Garcetti, the Court held that the First Amendment does not protect the speech of public employees made "pursuant to their official duties."10 In so doing, the Court clarified, and departed from, prior precedent governing public employee speech.11 The scholarly reaction to Garcetti has been almost uniformly negative.12 Some fear the Court's holding will limit academic freedom in public universities and deter whistleblowers from highlighting government failure; others object to the unpredictability of Garcetti's inexact, case-by-case standard that categorizes employee activities as falling inside or outside the realm of "official duties."13This Note addresses a significant, more recent problem: the federal circuits have split over whether a public employee may be fired for testifying truthfully in court or for refusing to falsify affidavits.14 After the Court's inexorable command that all speech made pursuant to official duties garners no First Amendment protection, some lower courts have simply applied a straightforward "official duties" test.15 By contrast, other lower courts distinguish giving subpoenaed testimony and filing affidavits from a public employee's official duties because these activities have a citizen analogue.16 However, courts have not delineated the exact parameters of this "citizen-like activities" exception, nor have they identified a rationale solidly rooted in First Amendment jurisprudence that squares such an exception with Garcetti.This Note intends to provide a coherent and practical solution to the problem of public employers threatening to fire employees for refusing to engage in speech that they find ethically objectionable. This Note does not intend to rehash the soundness of Garcetti's central holding. The dissenting opinions in Garcetti and subsequent legal scholarship have rendered the perceived deficiencies of that decision clear.17 For better or worse, the doctrine of stare decisis and the current membership of the Court make wholesale reversal of Garcetti unlikely. As such, this Note accepts Garcetti's holding as it stands, while seeking to define its contours and round its rough edges of inequity. The difficulty is to discern how one can both embrace Garcetti and conclude that sound First Amendment principles bar the manifest injustice inflicted on a public employee who is fired for refusing to lie in order to cover up government abuse.In Part II, this Note provides an overview of the Court's pre- Garcetti decisions that establish the normative principles underlying its free speech jurisprudence regarding public employees. …

Confirmatory Legislative History

Abstract: The Supreme Court and lower courts often rely on legislative history to confirm or reinforce what they already have concluded is the plain meaning of statutory text. The Roberts Court has done so on numerous occasions since 2006: six of these majorities, including four cases decided during the 2009 Term, have drawn sharp rebukes from Justice Scalia.This Essay maintains that persistent judicial reliance on confirmatory history reflects important shortcomings in the textualist approach. When courts move beyond the presumptively clear meaning of statutory language, they recognize - even if implicitly - that assertions of clarity can too often serve as either a mirage or a refuge. Clarity may be a mirage because apparently precise words or phrases often give rise to conflicting "plain meanings," and also because apparently assured readers of those words or phrases are conditioned to perceive clarity based on their own specialized training, background, and level of self-confidence. Assertions of clarity may serve as a refuge in that they obviate the need for judges to provide more complete explanations for their decisions. This aspiration for completeness, although not embraced by Justice Scalia, is important to many other judges as they seek to explain adjudicative resolutions before the diverse audiences to whom they are responsive and responsible.

The Frontier of Affirmative Action: Employment Preferences and Diversity in the Private Workplace

Abstract: The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backwardlooking to forward-looking. The Remedial Rationale – justifying preferences based on past wrongs – is fading into history and the Diversity Spotlight Rationale – justifying preferences to attain diversity solely for the sake of diversity – is emerging as the new frontier. In the private workplace arena, prominent businesses now claim an interest in fostering diversity within their ranks to better compete, market and think in an ever-globalizing economy. Diversity Spotlight Rationale-based arguments such as these butt heads with the express language and anti-discriminatory thrust of Title VII but might be in line with decades-old Supreme Court opinions. This article analyzes the history and precedent surrounding race-based preferences in the public sector, public employment and private employment arenas. It then delves into the foundation of the Diversity Spotlight Rationale and proposes three key components that any preference plan promulgated under the DSR must contain to have a chance before the current Supreme Court. Finally, this paper predicts that the Roberts Court – even with the confirmation of Sonia Sotomayer – will side with a strict statutory interpretation of Title VII and strike down a voluntary, forwardlooking, diversity-based workplace affirmative action plan. This prediction is based on Justice Kennedy’s general anti-affirmative action stance, a conservative-learning Court and the written positions staked out by Justices Thomas, Scalia, Alito, Roberts and Kennedy. THE FRONTIER OF AFFIRMATIVE ACTION: EMPLOYMENT PREFERENCES & DIVERSITY IN THE PRIVATE

Global Climate Change: The Roberts Court and Environmental Justice

Abstract: The first full term of the Roberts Court was momentous. The two newest justices--the chief justice and Justice Alito--pledged "judicial modesty" in their Senate confirmation hearings, but they disregarded settled law on politically charged issues: abortion, affirmative action, campaign finance reform, punitive damages for tobacco companies, and separation of church and state. Justice Kennedy replaced Justice O'Connor as the swing vote, hewing the Court further to the political right, while Roberts and Alito voted together in 92 percent of nonunanimous decisions. The Roberts Court has become highly activist--not shy about circumventing precedent, invalidating policy decisions by the elected branches of government, and ignoring principles of federalism. The Supreme Court is moving quickly to a doctrine of "constitutionalism in reverse," protecting the interests of the privileged over the powerless. In the midst of all this, there was a major victory that may be the most important environmental case ever decided by the Supreme Court. In Massachusetts v. EPA, Justice Kennedy joined with the liberal wing of the Court in a five to four decision, with Roberts writing the dissent. (1) The Court held that the Environmental Protection Agency has the authority to regulate heat-trapping gases emitted by automobiles. Justice Stevens, writing for the Court, said the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a reasoned, scientific basis for its refusal. This marked the first time that the Supreme Court has opined about global warming. The Case In 1999, environmental groups petitioned the EPA to regulate greenhouse gases, including carbon dioxide, under the Clean Air Act. Their petition was supported by respected scientific opinion that a significant increase in the atmospheric concentration of greenhouse gases is causing an alarming rise in global temperatures. The Clean Air Act requires the agency to regulate "the emission of any air pollutant from ... new motor vehicles ... which causes or contributes to, air pollution ... reasonably anticipated to endanger public health or welfare." (2) In 2003, the EPA denied the rule-making petition, reasoning (contrary to the opinions of its former general counsels) that it lacks the power to address global climate change and that, even if it had the authority, it would be unwise to do so due to conflicting administration priorities and scientific uncertainty. The Supreme Court has repeatedly used the issue of "standing" (the legal right to initiate a law suit) to block private individuals from challenging government actions, especially in environmental cases. Justice Scalia has led this effort, and the chief justice appears to fully support Scalia's endeavor. But in this case, the Court found that Massachusetts has a special position as a sovereign state whose population is at "actual and imminent" risk of harm from global warming: a precipitate rise in sea levels, irreversible damage to natural ecosystems, increased spread of disease, and more ferocious weather events. (3) The EPA's unwillingness to regulate motor vehicle emissions should be seen within the backdrop of the administration's steadfast refusal to act on global climate change: withdrawing support for the Kyoto Protocol, undercutting an EPA report blaming human activity for climate change, and altering scientific reports to minimize the threat of global warming. Most recently, at the G-8 Summit, President Bush adamantly opposed hard targets for reduction of greenhouse gases. The EPA believes Congress did not intend for the agency to regulate in the sphere of global climate change. It argued before the Supreme Court that carbon dioxide is not an "air pollutant" despite the Clean Air Act's capacious definition that includes any physical or chemical substance emitted into the ambient air. …

The Supreme Court 2009 Term Overview and 2010 Term Preview

Abstract: On Monday, June 28, 2010, the Supreme Court completed its fifth year with John Roberts as Chief Justice, its first year with Justice Sonia Sotomayor on the bench, and its thirty-fifth and final Term with Justice John Paul Stevens. In that Term, the Supreme Court decided seventy-three cases after briefing and oral argument, just a few less than the seventy-six cases decided the year before in the 2008 Term. In this Article, these cases are reviewed and analyzed by the authors.As discussed in this Article by Professor Schwartz, in some of the Court's important decisions during this Term, there existed more humaneness than seen in past recent Terms. For example, a sentence of life-imprisonment for juveniles convicted of non-homicide offenses was overturned. Other examples include the concern the Court expressed about criminal defendants knowing about deportation consequences, and the more realistic view of the limitation period for discrimination cases. Another case exemplifying the Court's humaneness was Florida v. Holland, where the defendant's lawyer in a death penalty case made a mistake regarding the limitations period for filing a habeas petition. In past Terms, even before the Roberts Court, the Court has said that it is just too bad; that is, the lawyer's sins are visited upon the client. There seemed to be more of a concern in some of the cases last Term for the plight of the individual.