Roberts Court

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

Slipping the Bonds of Federalism

Abstract: This paper uses Bond v. United States to explore the central dilemma in federalism doctrine. If you believe that law is a craft, you are likely to believe two things about federalism doctrine. The first is that the federal government is a government of limited powers. The second is that the Court has never figured out how to limit federal power without violating the rules of craft that prompted it to enforce those limits in the first place. As a result, judges are put to a tragic choice in federalism cases: do nothing to limit federal power or do something silly. If we retrace the Supreme Court’s path, however, we can imagine a new, better course. That’s because the Rehnquist and Roberts Courts have offered us two kinds of federalism decisions. Some start with the states. They mark where Congress’s power ends by identifying where state power begins, using sovereignty as a touchstone. Others — including most of the decisions of the Roberts Court — start with Congress and attempt to delineate the bounds of its power without reference to the states.While it is conventional to note that federalism cases come in these two flavors, the mistake we make is to treat both lines of doctrine as if they are equally flawed. They are not. The cases that rely on state sovereignty to limit federal power are misguided, but we should give the devil its due. These decisions have managed to generate doctrine that is more manageable, more comprehensible, and therefore more likely to endure. The cases that define federal power in isolation have been a failure on almost any measure. While federalism opinions that begin with the states have chosen the right starting point but headed in the wrong direction because they’ve followed the trail marked by the sovereigntists. The Court is correct to define federal power in relational terms, but it’s missed how that relationship actually works. The states and the federal government regulate shoulder-to-shoulder in the same, tight policymaking space. In doing so, they have forged vibrant, interactive relationships that involve both cooperation and conflict. They are not — as both the Court’s sovereignty account and the academy’s preferred autonomy account would have us think — engaged in the governance equivalent of parallel play. If the Court is going to generate doctrine that is not only enduring but worth preserving, the case law must reflect these realities.

Facial and As-Applied Challenges Under the Roberts Court

Abstract: One recurring theme of the early Roberts Court's jurisprudence to date is its resistance to facial constitutional challenges and preference for as-applied litigation. On a number of occasions the Court has rejected facial constitutional challenges while reserving the possibility that narrower as-applied claims might succeed. Unfortunately, the Roberts Court has not matched its consistency in preferring as-applied constitutional adjudication with clarity about what this preference means in practice. The Court itself has noted that it remains divided over the appropriate test to govern when facial challenges are available. Equally or more important, the Court has made little effort to describe the contours of as-applied litigation and has justified its preference for as-applied claims on diverse grounds that yield different implications for the types of as-applied claims litigants can bring. This essay for a symposium on the future of public rights litigation assesses the practical import of the Roberts Court's facial/as-applied jurisprudence on constitutional rights litigation. I argue that the Roberts Court's resistance to facial challenges is largely in keeping with longer-term trends in the Supreme Court's jurisprudence-with respect both to the Court's understanding of what constitutes an as-applied challenge, the scope of the Court's remedial authority to carve away a measure's unconstitutional dimensions, and strategic use of the facial versus as-applied distinction. In particular, despite some language to the contrary, the Court dos not appear to be excluding pre-enforcement as-applied challenges or require that specific applications of a measure be challenged one at a time, requirements that would mark a notable deviation from existing precedent and raise substantial impediments to asserting constitutional rights in federal court. What does set the Roberts Court apart is its understanding of the substantive scope of particular constitutional rights. Not surprisingly, that substantive understanding plays a major role in determining the Court's rejection (and acceptance) of facial challenges in different contexts. As a result, to the extent these decisions signal greater obstacles to assertion of certain constitutional rights in the federal courts, those obstacles likely result as much, if not more, from retraction in the substantive scope of those rights as from general jurisdictional rules regarding the appropriate form of constitutional adjudication.

Citizens United as Neoliberal Jurisprudence: The Resurgence of Economic Theory

Abstract: On January 21st of 2010, the Roberts Court freed corporations to spend unlimited general treasury funds on political advertisements, including those that mention candidates by name and those that are run in the weeks before an election. Shown by recent polls to be one of the most unpopular cases in U.S. history, Citizens United v. FEC promises to set the tone for the Roberts Court’s treatment of money-in-politics cases. This article shows that Citizens’ holding and reasoning flow directly from neoclassical economic theory, which assumes a perfect (political) market and resists government intervention aimed at correcting power imbalances and anti-competitive behavior. This laissez-faire stance is not new to the Court, but it had been in decline during Chief Justice Rehnquist’s long tenure. Citizens resuscitates a line of neoclassical jurisprudence that traces back to the mid 1970s, in particular to Buckley v. Valeo and First National Bank of Boston v. Bellotti. After summarizing the neoclassical assumptions of Citizens, this Article provides a thorough explanation and critique of these past cases which, in essence, imported economic theory to determine the meaning of democracy. Justice Stevens’ dissenting opinion in Citizens, and alternatives to neoclassical ideology more generally, are discussed in conclusion. In sum, this Article offers two basic contributions to the literature, the first descriptive and the second normative: It explains the neoclassical underpinnings of the line of cases that culminate in Citizens, thus offering a new way to understand the dominant ideology on the Roberts Court; and it provides an argument, rooted in institutional economic theory and separatist philosophy, that the market sphere should not govern the political sphere.

Are Even Unanimous Decisions in the United States Supreme Court Ideological

Abstract: -The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological-legalistic judicial institution. The Supreme Court is widely regarded, and not only by political scientists, as a highly political Court, an impression often reinforced by the ferocious dissents of one or more Justices in many cases. This makes the Court's unanimous decisions an important subject for study-for how is unanimity achieved in a political court?-and it is a subject that has been neglected.1 This Essay seeks to advance understanding of the phenomenon of Supreme Court unanimity. Despite the title of the Symposium, this is not an essay about Justice Stevens as such, but it is not irrelevant to his service on the Court. He was noted for frequent dissents.2 Of the Justices who served in the 2005 through 2009 Terms3 (the years of the Roberts Court before Justice Stevens retired), he had the highest dissent rate-30.3% of the 320 cases in which he participated (Justice Souter was second, at 27.2%-69/254).4 Yet he voted more often to join a unanimous decision than he voted to dissent-39.1% of the votes he cast were in unanimous decisions (125/320). Whether this should be thought paradoxical is one of the questions we try to answer in this Essay. The Supreme Court Database (also known as the Spaeth Database) contains data on cases decided since the 1946 Term (the last Term we study is the 2009 Term). We define unanimous decisions as ones in which no Justice dissented, even if there were also one or more concurring opinions. Concurring opinions are actually more common in unanimous decisions than in non-unanimous ones-41% of the unanimous decisions in The Supreme Court Database include concurring opinions, compared to 38% for non-unanimous decisions-although the reason may be arithmetical: in a 5- 4 decision, the maximum number of concurring opinions is four; in a 9-0 decision it is eight. An alternative definition of a unanimous decision- which would be more realistic in recognizing that concurring opinions often indicate disagreement with, rather than merely supplementation or extension of, the majority opinion-would be a decision in which all the Justices joined the majority opinion, whether or not any of them also wrote a concurring opinion. We have not broken down the data sufficiently to enable us to analyze unanimous decisions so defined. Except in the 1969 Term, in which there were only eight Justices, we exclude unanimous cases in which one or more Justice was absent; the reason is that we cannot be certain that if a ninth Justice had sat, the case would still have been decided unanimously. Under our definition, about 30% of the Court's orally argued decisions from 1946-2009 were decided unanimously. Figure 1 shows that the percentage has been trending upward: from 21% in 1946-1952 (the Vinson Court) to 34% since 2005 (the Roberts Court). The graph shows that part of the upward trend is the result of an increasing fraction of unanimous decisions reversing the Ninth Circuit.5 Over the entire period, about 73% of Ninth Circuit decisions that the Supreme Court reviewed were reversed unanimously, compared to 63% for the other circuits. If we exclude them, the upward trend falls from 1.35% to 1.07% per year.6 Even if the decisions reversing the Ninth Circuit are included, there is no significant positive trend over the last twenty-five years (since Rehnquist's first Term as Chief Justice). The percentage peaked in 1997 at 51.1% (40.2% if excluding Ninth Circuit reversals) and has since declined to 37%. …

Standing at the Crossroads: The Roberts Court in Historical Perspective

Abstract: After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O'Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O'Connor was generally viewed as occupying the Court's centrist, or median, position, Alito has instead continued to embrace the same conservative judicial philosophy that characterized his fifteen-year career on the United States Court of Appeals for the Third Circuit. It now appears that the Roberts Court is one justice shy of what conservatives had long hoped for, namely a core conservative majority that would ensure predictable rulings in key areas of constitutional law, including most notably abortion, equal protection, and criminal procedure. This Article will explain that while this conventional wisdom is generally sound, it is also incomplete in a critical respect. The increasingly prominent conservative center of gravity in the Supreme Court coincides with an overwhelmingly conservative set of federal circuit courts of appeals. This uncommon judicial occurrence becomes all the more significant when we factor in one more consideration. The Supreme Court has proved most willing to alter its standing doctrines, which govern access to the federal judiciary and ultimately to the Court itself, when this combination coincides with a set of standing rules that threaten to undermines the Court's ability, working in alignment with the lower federal judiciary, to further its emerging doctrinal mandate. This even rarer combination has happened only one prior time in the post New Deal period, and that was during the Warren Court.This Article's thesis is ironic: With respect to standing doctrine, which affects the timing of doctrinal transformation, the Roberts Court is most likely to resemble the Warren Court, the very Court whose historical legacy it seeks to counteract. Further core conservative appointments to the Roberts Court will place stress upon strict standing doctrines developed in the Burger and Rehnquist Courts, as the Supreme Court, working in alignment with the conservative lower federal judiciary, seeks to move substantive constitutional doctrine in its preferred ideological direction. Over time, an increasingly conservative Roberts Court will seek to relax the strictest features of standing doctrine to facilitate its broader doctrinal agenda.To support this thesis, this Article develops and presents two new sets of data. Adapting the Martin-Quinn scoring system, the first data set tracks the ideological center of gravity and the stability of dominant coalition structures on the Supreme Court itself from 1937 through 2005. The second data set is the product of original research drawn from the Federal Judges Biographical Database, compiled by the Federal Judicial Center. These data track the ideological balance of the federal circuit courts, for each year from 1933 through 2006 based upon the party of appointing President. This Article transforms these two sets of data into a readily comparable form and presents them together in a chronological table covering the Supreme Court and circuit courts from 1933 through 2006. This Article relies upon these data to explain the conditions under which the Supreme Court has historically developed and transformed its principal doctrinal gatekeeper, namely standing, in an effort to control developing constitutional doctrine in concert with the lower federal courts. The Article then places the Roberts Court in a broader theoretical and empirical perspective that tracks the Court's internal coalition structures and accounts for the historical relationship between ideological dominance on the Supreme Court and the majority of the federal circuit courts. The analysis helps not only in assessing the significance of the Roberts and Alito appointments, but also of potential future appointments in affecting doctrinal change.The Supreme Court's standing rules have long been viewed as a conservative set of doctrines. The Court's most recent, and controversial, standing pronouncement, Massachusetts v. Environmental Protection Agency ('EPA'), which over the dissents of the four core conservatives, afforded standing to the Commonwealth of Massachusetts to challenge the EPA's denial of rulemaking respecting the regulation of greenhouse gas emissions under the Clean Air Act, is consistent with casting standing in such ideological terms. A longer historical view, however, belies the claim that strict standing inevitably serves conservative interests. Since the doctrine's inception in the New Deal, the Supreme Court has willingly modified standing to fit its changing circumstances and in doing so, has also changed the doctrine's ideological cast. This Article provides theoretical and empirical support for the thesis that as the Roberts Court moves further in a conservative direction, it will be poised once more to modify the strict form of standing that characterized that doctrine in the Burger and Rehnquist Courts as a means working with the aligned conservative lower federal judiciary to move doctrine in its preferred ideological direction.