Topic
Roberts Court
About: Roberts Court is a research topic. Over the lifetime, 397 publications have been published within this topic receiving 1468 citations.
Papers published on a yearly basis
Papers
More filters
••
TL;DR: In this article , the authors determined whether liberal ideological drift is prevalent in liberal justices and also perhaps the most surprising population: Conservative justices on the Supreme Court of the Modern Era (1946-present).
Abstract: Ideological drift is the phenomenon in which an actor shifts their original political stance to the left or right of the political spectrum. Previous literature suggests that a liberal-inclined ideological shift occurs in the Supreme Court. However, there has been an absence of research confirming the presence of liberal ideological drift. The focus of this paper determines whether liberal ideological drift is prevalent in liberal justices and also perhaps the most surprising population: Conservative justices on the Supreme Court of the Modern Era (1946- present). We postulated that if a justice serves at least 10 terms, then a decreased frequency of majority conservative votes will be made evident, thus proving a liberal ideological drift. Our empirical findings support our postulation: a majority of conservative justices of the Modern Era have fewer conservative majority votes with the passage of 10 terms or more, therefore indicating an ideological shift to the left. There exist important caveats to our results, these include justices undergoing the acclimation or “freshman” effect (a phenomenon in which a justice will vote in accordance with the appointing president’s ideology). Our findings may provide useful information for the litigant community, advocates and opponents of Supreme Court term limits, and the general public.Keywords: Supreme Court, Supreme Court Justice, Ideological Drift, Liberal Justice, Conservative Justice, Bloc, Majority Opinion, Acclimation Effect, Freshman Effect
•
••
01 Jan 2015
TL;DR: In this article, the authors apply Rawlsian principles to issues of normative race policy, and examine key opinions in this area by select members of the Roberts Court, as embodied in leading relevant Supreme Court case law.
Abstract: In chapter 2, we saw that applying Rawlsian principles to issues of normative race policy yields an unexpected result. As far to the political Left as Rawls may fairly be said to be, strong forms of affirmative action cannot be derived from his theory, although strong forms of legislative reparations can be so derived. Yet what if we turn from public policy to the constitutional law of race, as embodied in leading relevant Supreme Court case law? What might it yield if, in light of Rawlsian principles, we examine key opinions in this area by select members of the Roberts Court?
•
TL;DR: In this article, the authors focus on the methods used by the Court in receiving evidence and resolving disagreements about questions of fact in constitutional cases and identify and articulate the frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts.
Abstract: This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts in constitutional cases. The book also documents the largely unremarked ubiquity of these questions, the wide variety of circumstances in which they occur, and the depth of the theoretical issues they implicate. Professor Faigman accomplishes all this in crisp, lucid, and admirably concise prose. Nor could Professor Faigman’s book be more timely. Several of the Roberts Court’s most salient and controversial constitutional decisions have turned on questions of legislative fact. Constitutional Fictions treats an important topic with impressive insight. But it will not be the last word on the subject. When Constitutional Fictions finally comes round to normative and prescriptive analysis of the status quo, Faigman shies away from the broader implications of his critique. After reviewing Professor Faigman’s arguments, this review essay explores how alternative analyses might compel more sweeping changes than he suggests.
•
TL;DR: For instance, the authors argued that the Roberts Court is not so much inattentive to the exigencies of various regulatory frameworks as it is eager to reveal an affirmative deregulatory aim.
Abstract: For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.
In 2012, I traced how the Roberts Court paid scant attention to the integral role private enforcement plays in various regulatory frameworks in which given substantive laws operate. By reducing or eliminating mechanisms of private enforcement, I argued, entire swaths of substantive law would go woefully under-enforced. Since that time, the Roberts Court’s civil justice and procedural jurisprudence—jurisprudence that has brought about systematic retrenchment of substantive rights—reveals that the Roberts Court is not so much inattentive to the exigencies of various regulatory frameworks. Instead, the Roberts Court jurisprudence tends to reveal an affirmative deregulatory aim.
Far from merely calling balls and strikes, and in opinions involving questions as varied as ones about class-action rule interpretation, the permissibility of collective action waivers in arbitration agreements, the ability to opt out of collective bargaining dues on First Amendment grounds, standing, and others, the Roberts Court has achieved sweeping deregulation in the past decade. As has been traced in the literature, these deregulatory effects have been particularly pronounced in the area of consumer law. Moreover, the deregulatory effects for the underlying substantive regimes have often been achieved through somewhat indirect, procedural decision-making, but those effects have been almost as significant as if the Court had simply re-written the particular rights-bearing statutes.
During October Term 2017, the Court moved beyond consumer law and ramped up its efforts to effectuate deregulation of employment law. Whatever protections workers have enjoyed throughout our nation’s history have been secured in large part through private enforcement. And to be sure, on their faces, critical workplace protection laws like Title VII and the Fair Labor Standards Act (“FLSA”)—both of which rely almost exclusively on private litigation for their effectuation—remain completely intact. However, in three critical (but less-blockbuster-than-Masterpiece Cakeshop) cases—Janus v. American Federation of State, County, and Municipal Employees, Epic Systems v. Lewis, and Encino Motorcars—the Court in back-to-back 5-4 rulings stripped workers of mechanisms to pursue their rights against employers who commit wrongs in the workplace. Both history and present experience teach us that the Court’s recent opinions will help eliminate the regulatory apparatus for workplace injury, and private employers will enjoy increased ability to essentially rewrite their obligations under substantive law through procedural vehicles.
This essay proceeds as follows: Part A traces the Court’s employment law jurisprudence from October Term 2017. Part B discusses the regulatory consequences of these opinions and argues that the Court’s opinions this past term reflect political commitments that favor and disfavor certain types of claims and claimants.