Roberts Court

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

Between Formalism and Conservatism: The Resurgent Legal Formalism of the Roberts Court

Abstract: Following long decades of disrepute, legal formalism is experiencing a renaissance in the opinions of our highest court. There should be no surprise that this formalistic re-surgence coincides with the most conservative Supreme Court in many decades: modern legal formalism is almost uniquely a conservative project. Yet the association between conservatism and formalism calls for an explanation: what accounts for the conservative predilection for legal formalism? This article will examine a series of possible answers to that question, and will argue that legal formalism shares a natural intellectual affinity with conservatism.

D.C. v. Heller and the Death of Consistent Constitutional Jurisprudence

Abstract: When ruling on the day's most politicized legal issues, the Supreme Court has abandoned consistent interpretive theory. This paper will examine the Roberts Court's tendency to resolve divisive issues on a policy, rather than legal, basis, and will show that this trend is exemplified by the Court’s landmark Heller opinions. Part I of this paper will discuss the traditional importance of theories of Constitutional interpretation. Part II will examine the Constitutional theory subscribed to and consistently applied by Justice Scalia, perhaps the Court's most outspoken proponent of a consistent and defined interpretive style. Part III of this paper will delve into Justice Scalia's Heller opinion and show that the interpretive model used by the Court is simply an inconsistent gloss used to obscure a political ruling. This paper will conclude by showing that the interpretive inconsistency that marks the Heller opinion is not isolated to the Heller case but rather has become the rule for this Court.

From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts

Abstract: INTRODUCTION 1731 I. THREE FEDERAL RULES 1732 A. Rule 56 1732 B. Rule 8 1733 C. Rule 23 1734 II. THREE COMMON CHARACTERISTICS 1735 A. Innovative Interpretation 1735 B. Practical Impact 1738 C. Social Congruence 1742 III. “THE WHOLE OF THINGS” 1747 A. Market Ideology 1749 B. Textualism, Originalism, and Traditionalism 1758 C. Judicial Ironies and “Living” Law 1762 CONCLUSION 1764

Cooperative Federalism, the New Formalism, and the Separation of Powers Revisited: Free Enterprise Fund and the Problem of Presidential Oversight of State-Government Officers Enforcing Federal Law

Abstract: Formalism has returned, displacing the flexible, functionalist separation-of-powers analysis that often characterized the Supreme Court’s separation-of-powers decisions during the Rehnquist Court. Free Enterprise Fund v. Public Co. Accounting Oversight Board provides powerful evidence of this emerging trend. Moreover, a reliable majority of the Justices have strongly embraced formalism in other important separation-of-powers decisions as well. A new formalism now appears to govern the Court’s contemporary separation-of-powers jurisprudence—with the defenders of more flexible, functional approaches to separation-of-powers questions relegated to writing dissents. The Roberts Court, however, has failed to elucidate fully the precise scope and meaning of its new formalist Copyright © 2012 by Ronald J. Krotoszynski, Jr. † John S. Stone Chair, Professor of Law, and Director of Faculty Research, University of Alabama School of Law. John Price, Alabama L’12, provided outstanding research assistance on this project. I also wish to acknowledge the assistance of research librarians Robert Marshall and Blake Beals of the Bounds Law Library at the University of Alabama School of Law. Professors Bill Andreen, Linda Jellum, Hal Krent, Ron Levin, Lyrissa Lidsky, James Puckett, Marty Redish, David Super, and Robin Fretwell Wilson all provided very useful comments on an earlier version of this Article; The New Formalism reflects the benefit of their input. The University of Alabama Law School Foundation provided generous financial support for my work on this project through a summer research grant. As always, any errors or omissions are my responsibility alone. KROTOSZYNSKI IN PRINTER PROOF (DO NOT DELETE) 4/11/2012 10:33 PM 1600 DUKE LAW JOURNAL [Vol. 61:1599 vision for separation-of-powers doctrine. Even so, if the Roberts Court’s decisions mean what they appear to say, serious constitutional questions exist about the constitutional validity of cooperativefederalism programs in which states have primary responsibility for the administration of important federal labor, environmental, and healthcare programs. Simply put, the new formalism renders such programs open to serious constitutional attack on separation-ofpowers grounds because the president arguably lacks sufficient direct oversight and control of the state-government officers who administer and enforce federal law on a day-to-day basis. But the Supreme Court need not follow the logic of its more recent separation-of-powers decisions to this ultimate conclusion; plausible arguments exist to support the claim that cooperative-federalism programs do not violate separation-of-powers doctrine even under a demanding formalist analysis. Until the full implications of the Roberts Court’s embrace of the new formalism are known, legal scholars, federal judges, and administrative-law practitioners should consider carefully whether cooperative-federalism programs can successfully be reconciled with the imperatives of the unitary executive and its requirement of direct presidential control and oversight of the administration of federal law.

The Meaning of Judicial Impartiality: An Examination of Supreme Court Confirmation Debates and Supreme Court Rulings on Racial Equality

Abstract: Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach. However, as important as the concept of judicial impartiality may be, it is worth pausing to examine what speakers generally mean when they mention the term. In this article, I argue that at its core, the invocation of “judicial impartiality” in political discourse speaks to an ideal of fairness: an impartial judge is a person who acts in a fair manner toward all parties in a case appearing before them. My focus in this article is on examining the concept of judicial impartiality in this familiar sense, with the hope of providing some insight into the underlying norms that structure our public discourse around judicial appointments, judicial rulings, and responses by elected officials to judicial rulings. This article seeks to advance three claims. First, I claim that the divergent Democratic and Republican views on judicial impartiality—as illustrated the context of the Supreme Court confirmation hearings and debates for Chief Justice John Roberts and Justice Sonia Sotomayor—are rooted in each party’s distinct electoral coalitions and ideological histories. Secondly, I claim that notwithstanding these divergences, both Democratic and Republican-appointed justices on the Supreme Court share a common institutional environment at present of judicial uncertainty. This shared institutional condition, I argue, alters how Democratic and Republican-appointed justices are able to implement their respective visions of judicial impartiality in actual adjudication. On this point, I discuss some of the Roberts Court’s recent rulings on race and equal protection to help anchor the examination of judicial impartiality in constitutional doctrine. Finally, in the final portion of the article, my argument takes a normative turn in making my third claim: accepting that some degree of partiality is inevitable in the judicial role, judicial impartiality is best understood as denoting a consistent, good-faith engagement with the claims and interests of those who lie outside the social groups that are aligned with a judicial actor. I conclude the article with a few words on what this conception of judicial impartiality might imply, or even demand, of Democratic and Republican-appointed judicial actors seeking to uphold the ideal of judicial impartiality in the present time.