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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 ArticleDOI
01 Jan 2015
TL;DR: In this article, the authors argue that the outcome in these cases may well depend not on the foreign relations issues alone, but on what issues lie on the other side of the balance, and that a litigant should think of a foreign relations case as a regular case of statutory interpretation, where arguments about text, structure, and history are critical.
Abstract: Which brings me to another point: it is important for practitioners to acknowledge that whether you can count to five may be more a product of the underlying issues at stake. Predicting the outcome in these cases may well depend not on the foreign relations issues alone, but on what issues lie on the other side of the balance. One case might balance executive power and foreign affairs against individual rights and civil liberties. Another might balance executive power and foreign affairs against state sovereignty. What is on the other side of the balance might lead to a different lineup and a different outcome dependent on the views of the individual Justices, rather than any broad doctrinal theory. In the end, my bottom line is that a litigant should think of a ‘‘foreign relations’’ case as a regular case of statutory interpretation, where arguments about text, structure, and history are critical. The foreign relations aspect of the case should not be ignored; the implications of a case for foreign affairs may still be influential and can, in some cases, tip the balance. But the Court is looking at these cases with more scrutiny than in the past, and so a litigant cannot successfully brief or argue a case simply by asking the Court to ‘‘trust’’ the political branches. Federalism issues, too, should not be ignored. A litigant should check all the boxes and not assume that any principle or doctrine is somehow inviolate. There is a lot of nuance in the case law and that will likely remain for some time to come.

1 citations

Journal Article
TL;DR: Schauer as mentioned in this paper argues that Schauer exaggerates the weakness of the norm of stare decisis in the Roberts Court's practices and that his call for a public debate on the merits of the rule can only weaken it.
Abstract: Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, notice, and predictability" in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it.

1 citations

Posted Content
TL;DR: This article reviewed U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers and found that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract.
Abstract: This comment reviews U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers. It finds that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. But since the Reagan years, a more conservative Court has undertaken to curtail governmental activity in general, and to limit federal, state, and local planning in particular. A number of 5-4 decisions expanded private property rights and contracted the scope of the federal “commerce power.” The comment considers whether today’s Roberts Court is composing a “requiem for regulation.”

1 citations

Posted Content
David S. Cohen1
TL;DR: In the context of the South Carolina Law Review's Symposium on the Roberts Court and Equal Protection, the authors analyzes Justice Kennedy's sex discrimination jurisprudence and draws conclusions about his thoughts on sex and gender.
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.

1 citations

Posted Content
TL;DR: In this article, the authors study the use of whole code comparisons by the modern US Supreme Court and suggest that the Court should limit its use to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice.
Abstract: Over the past three decades, since Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases — what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground. One prominent article on the topic, published twenty years ago, criticized the Court for treating statutes enacted at different times by different legislators as though they were enacted by one, never-changing Congress. Other scholars have touched on the topic in passing, but no one has systematically studied how judges employ this interpretive tool. This article provides the first empirical and doctrinal analysis of how the modern Supreme Court uses whole code comparisons, based on a study of the full universe of 532 statutory cases decided during the Roberts Court’s first twelve-and-a-half terms. The article first catalogues five different forms of whole code comparisons employed by the modern Court and notes that the different forms rest on different justifications, although the Court’s rhetoric has tended to ignore these distinctions. The article then notes several problems, beyond the unrealistic one-Congress assumption identified by other scholars, that plague the Court’s current approach to most forms of whole code comparisons. For example, most of the Court’s statutory comparisons involve statutes that have no explicit connection to each other, and nearly one-third of the cases compare statutes that regulate entirely unrelated subject areas. Moreover, many of the Court’s analogies involve generic statutory phrases — such as “because of” or “any” — whose meaning is likely to depend on context rather than some universal rule of logic or linguistics. The article argues that, in the end, the Court’s whole code comparisons amount to judicial drafting presumptions that assign fixed meanings to specific words, phrases, and structural drafting choices. The article critiques this judicial imposition of drafting conventions on Congress — noting that it is unpredictable, leads to enormous judicial discretion, reflects an unrealistic view of how Congress drafts, and falls far outside the judiciary’s institutional expertise. It concludes by recommending that the Court limit its use of whole code comparisons to situations in which congressional drafting practices, rule of law concerns, or judicial expertise justify the practice — e.g., where Congress itself has made clear that one statute borrowed from or incorporated the provisions of another, or where it is necessary to harmonize two related statutes with each other.

1 citations


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