Roberts Court

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

From Bad to Worse?: Some Early Speculation About the Roberts Court and the Constitutional Fate of the Poor

Abstract: Conventional wisdom - supported in large measure by blackletter law - suggests that discrimination on the basis of wealth or class largely escapes constitutional sanction. If the conventional wisdom is correct, then issues of class and equal protection represent one area in which advocates of a more robust individual rights jurisprudence have little to fear from the Roberts Court. In this Essay, prepared for a Symposium on "The Roberts Court and Equal Protection: Gender, Race, and Class," Professor Siegel offers a contrary view. He makes three related observations. First, existing caselaw is more complex than usually acknowledged, offering substantial interstitial protection against class discrimination. Second, the Rehnquist Court, though not a major innovator in this area, largely respected the doctrinal status quo. Finally, the first terms of the Roberts Court offer a number of reasons to question whether the Roberts Court will do the same.

Chief Justice Roberts and the Salience of Issues Before the Modern Supreme Court

Abstract: This thesis studies whether the Roberts Court has been hearing more important issues than the Warren, Burger or Rehnquist Courts I operationalize important issues as pre-decision salience and measure mentions of cases in the first section of two newspapers The research shows that the Roberts Court has been hearing more important issues than the other modern Courts I reason that the Roberts Court has been hearing more important issues because interest groups and individuals are turning to the Court to make policy Because the Court is becoming a more important policymaking institution, scrutiny of the Supreme Court will increase

Bostock: un caso de discriminación laboral

Abstract: Strictly speaking, Bostock is not a constitutional case. It is an employment law case: more precisely, one of discriminatory dismissal. Neil Gorsuch, who writes for the majority of the Roberts Courts, confines the issue to the interpretation of the Civil Rights Act (1964), without developing a real “constitutional argument”. From the perspective of legal reasoning, Bostock is an originalist decision. Both the majority opinion and the dissenting opinions of Samuel Alito and Brett Kavanaugh are attempts to reconstruct and apply the original meaning of the phrase “because of sex”. In this decision, several forms of originalism intertwin: there is clash between the textualist doctrine, on the one hand, and the doctrine of public meaning combined with intention-based arguments, on the other. But, in truth, the majority opinion's textualism seems to “hide” a dynamic and evolutionary interpretation that updates the original meaning of the Civil Rights Act to include sexual orientation in the protection against sex-based discriminations. When combined with other recent decisions, Bostock seems part of a broader strategy of the Roberts Court oriented towards the systematization of the federal law in the area of employment discrimination.

Fidelity to Our Living Constitution

Abstract: This essay explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living constitution: the commitments “hammered out” through the processes of popular sovereignty during the Civil Rights Revolution. I reconstruct Ackerman’s living constitutionalism as a moral reading in which faithful interpretation requires normative judgments about the best understanding of the constitutional commitments that have been built out over time.

The Interpretation of Constitutional History, or Charles Beard Becomes a Fortuneteller (with an Emphasis on Free Expression)

Abstract: In "An Economic Interpretation of the Constitution of the United States", Charles A. Beard argued that the framers advocated for and defended the Constitution because of their personal economic interest, that the pursuit of common good was not so much a motive as a veneer. The current historical consensus is that Beard's thrust is incorrect. In this essay, I largely agree with this assessment, but his economic approach can add an important element to the discussion of constitutional history. And though his economic depiction does not closely fit the framing of the Constitution, it uncannily fits the Roberts Court's current interpretation of our constitutional order.