Roberts Court

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

State Sovereign Immunity and the Roberts Court

Abstract: Despite the centrality of the Eleventh Amendment and state sovereign immunity to the federalism jurisprudence of the Rehnquist Court, that topic has remained mostly in the shadows of the Roberts Court's first five Terms. Other than an entirely uncontroversial 2006 decision holding that counties were not protected by the Eleventh Amendment, and the Chief Justice’s own dissent in a 2010 original jurisdiction dispute where the majority sidestepped the issue, the five years since Justice Alito ascended to the bench have seen remarkably little opportunity for reconsideration of the Rehnquist Court’s approach to state sovereign immunity, even as other federalism-laden topics – e.g., the Commerce Clause, Section Five, and the scope of post-conviction habeas corpus – have routinely come before the Justices.As I explain in this essay for the Charleston Law Review’s Supreme Court Preview, that trend is likely to change during the coming Term, with two cases already on the docket that at least indirectly implicate the scope and implications of the Rehnquist Court’s approach to state sovereign immunity. In the first case, Virginia Office for Protection and Advocacy v. Reinhard, the Fourth Circuit held, for the first time, that state-created agencies may not invoke the doctrine of Ex parte Young as a means of avoiding the Eleventh Amendment in suits for injunctive relief against state officers. In the Fourth Circuit’s view, “federal court adjudication of an ‘intramural contest’ between a state agency and state officials encroaches more severely on the dignity and sovereignty of the states than an Ex parte Young action brought by a private plaintiff."In the second case, Sossamon v. Texas, the Fifth Circuit waded into a circuit split as to whether states knowingly waive their sovereign immunity when they accept federal funds under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), given that § 4(a) of the Act creates a cause of action for “appropriate relief” against “a government” for violations of the Act. The Fifth Circuit reasoned that “RLUIPA is clear enough to create a right for damages on the cause-of-action analysis, but not clear enough to do so in a manner that abrogates state sovereign immunity from suits for monetary relief.”Whatever might be said about the merits of either decision, it seems clear that both present questions as to the appropriate scope of state sovereign immunity on a scale heretofore unseen in the jurisprudence of the Roberts Court. And although this preview essay does not attempt to predict what will happen in either Stewart or Sossamon, it does aim to situate these two cases in their broader context – to explain both why they are such important bellwethers for the Roberts Court, and to suggest what, if anything, we might learn from their resolution. Ultimately, how the Court handles these two cases may provide crucial insight into whether the current Justices will embrace the approach of their predecessors and thereby follow the same ideological chasm that pervaded the Rehnquist Court’s state sovereign immunity jurisprudence, or whether something might change.

Metaphor and Health Care: On the Power to Make Metaphor Into Law

Abstract: Metaphor and Health Care: On The Power to Make Metaphor Into Law by George Lakoff & Elisabeth Wehling Perhaps as early as today, the conservative-dominated Roberts Court will choose a metaphor that will affect millions of people and perhaps change the history of our country very much for the worse. Back in 1978, linguists Michael Reddy and me (George Lakoff), working independently, demonstrated that metaphor is fundamentally a matter of thought, and that metaphorical language is secondary. Conceptual metaphors shape our understanding and can determine how we reason. Consequently, metaphor is central to law, as Citizens United showed by expanding the common legal metaphor Corporations Are Persons, with vast political consequences. This week's likely judgment was prefigured in the 2008 Republican presidential race when Rudolph Giuliani likened health care to a flat screen TV. If you want a flat screen TV, buy one; and if you don't have the money, go earn it. If you can't, too bad, you don't deserve it. The same with health care, he argued, imposing the metaphor that Health Care Is A Product. This was a sign that conservative strategists were looking for a way to impose this metaphor. Barack Obama helped them. He bought into that metaphor when he chose the Interstate Commerce clause as the constitutional basis of his health care act. He had an alternative -- Medicare for All -- since Congress has the duty to provide for the general welfare. But Obama accepted the Health Care as Product metaphor because he wanted to regulate the insurance industry, and Congress has the power to regulate interstate commerce. In doing so he fell into a conservative trap. The Interstate Commerce clause rests on the metaphor that Health Care Is A Product. That led to Supreme Court justices arguing that the individual mandate is forcing people to buy a product, and that, they hinted, is unconstitutional -- at least 5-4 unconstitutional. The argument is that if the government can force you to buy one product, it can force you to buy any product -- even broccoli. There is another metaphor trying to get onstage -- that the individual mandate levies a health care tax on all citizens, with exemptions for those with health care. The

Justice Kennedy's Gendered World

Abstract: As part of the South Carolina Law Review's symposium on the Roberts Court and Equal Protection, this essay looks at Justice Kennedy's sex discrimination jurisprudence. With the new Court, it's natural to be concerned with how the two new Justices might vote in upcoming sex discrimination cases. However, in this essay, I assume what has been the case so far from Chief Justice Roberts and Justice Alito - that they are reliable votes joining Justices Scalia and Thomas on the Court's more conservative wing. The Justice most people should focus on now is Justice Kennedy, the new median Justice now that Justice O'Connor has retired. This essay seeks to analyze Justice Kennedy's sex discrimination jurisprudence and draw conclusions about his thoughts on sex and gender. First, it reviews the cases involving sex discrimination that Justice Kennedy has participated in while on the Court and shows that he has been a fairly consistent vote against sex discrimination claims. Second, it analyzes Justice Kennedy's votes and opinions in sex discrimination cases and attempt to summarize his views. Finally, the essay evaluates Justice Kennedy's conceptions of gender in his opinions and votes. The essay concludes that Justice Kennedy's new role as median Justice is troubling for sex equality jurisprudence generally and constitutional sex discrimination cases specifically, as Justice Kennedy has shown a tendency, in the many cases arising in the parent/child context, to adhere to traditional and paternalistic gender roles.

Why Does the Supreme Court Uphold So Many Laws

Abstract: Scholars spend a lot of time considering the legitimacy and implications of the Supreme Court striking down federal laws by use of judicial review. Similarly, there is a large literature focusing on the Court’s power and obligation to manage the federal judiciary through its certiorari powers over its own docket and its ability to reverse lower courts. However, there is almost no work that examines the interplay of the Court’s judicial review powers and its managerial authority. Scholars have overlooked this intersection because they implicitly understand the power of judicial review and the federal hierarchy as institutions based on vetoes. On this account, the Court takes a judicial review case to veto either Congress or a lower court. This suggests that the Court should never take a case in which it affirms a lower court and upholds a federal statute. This account is (almost) entirely wrong. Using a new and comprehensive dataset, we show that throughout its history, the Court has affirmed the lower court and upheld the statute in the plurality of its judicial review decisions. The box that current theories predict should be empty is actually the fullest. This is the first article to provide an empirical look at the Supreme Court’s judicial review practices in relation to its discretionary power over its docket. It considers various possible explanations for these uphold-affirm cases like circuit splits or mandatory review and finds them wanting. The empirical results lead us to develop a theory of positive judicial review. While many scholars have pondered what the Court gains from striking down laws, we are the first that considers the normative implications of and what the Court may gain from upholding statutes. We use these empirical and theoretical efforts to examine the Roberts Court and show that it is an historical outlier. Under Roberts, the Court has dramatically reduced its judicial review docket, and it has stopped taking uphold-affirm cases entirely. We examine what may have caused the Roberts Court to be the first Court in history that conforms to theoretical expectations and use these insights to predict how the Court may behave in the future.