When It Comes to Business, the Right and Left Sides of the Court Agree
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Constitutional Avoidance and the Roberts Court Neal Devins William & Mary Law School, [email protected]
College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2007 Constitutional Avoidance and the Roberts Court Neal Devins William & Mary Law School, [email protected] Repository Citation Devins, Neal, "Constitutional Avoidance and the Roberts Court" (2007). Faculty Publications. 346. https://scholarship.law.wm.edu/facpubs/346 Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs CONSTITUTIONAL A VOIDANCE AND THE ROBERTS COURT Neal Devins • This essay will extend Phil Frickey's argument about the Warren Court's constitutional avoidance to the Roberts Court. My concern is whether the conditions which supported constitutional avoidance by the Warren Court support constitutional avoidance by today's Court. For reasons I will soon detail, the Roberts Court faces a far different Congress than the Warren Court and, as such, need not make extensive use of constitutional avoidance. In Getting from Joe to Gene (McCarthy), Phil Frickey argues that the Warren Court avoided serious conflict with Congress in the late 1950s by exercising subconstitutional avoidance. 1 In other words, the Court sought to avoid congressional backlash by refraining from declaring statutes unconstitutional. Instead, the Court sought to invalidate statutes or congressional actions based on technicalities. If Congress disagreed with the results reached by the Court, lawmakers could have taken legislative action to remedy the problem. This practice allowed the Court to maintain an opening through which it could backtrack and decide similar cases differently without reversing a constitutional decision. In understanding the relevance of Frickey's argument to today's Court, it is useful to compare Court-Congress relations during the Warren Court of the late 1950s to those during the final years of the Rehnquist Court. -
Clerk and Justice: the Ties That Bind John Paul Stevens and Wiley B
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by OpenCommons at University of Connecticut University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2008 Clerk and Justice: The Ties That Bind John Paul Stevens and Wiley B. Rutledge Laura Krugman Ray Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Ray, Laura Krugman, "Clerk and Justice: The Ties That Bind John Paul Stevens and Wiley B. Rutledge" (2008). Connecticut Law Review. 5. https://opencommons.uconn.edu/law_review/5 CONNECTICUT LAW REVIEW VOLUME 41 NOVEMBER 2008 NUMBER 1 Article Clerk and Justice: The Ties That Bind John Paul Stevens and Wiley B. Rutledge LAURA KRUGMAN RAY Justice John Paul Stevens, now starting his thirty-third full term on the Supreme Court, served as law clerk to Justice Wiley B. Rutledge during the Court’s 1947 Term. That experience has informed both elements of Stevens’s jurisprudence and aspects of his approach to his institutional role. Like Rutledge, Stevens has written powerful opinions on issues of individual rights, the Establishment Clause, and the reach of executive power in wartime. Stevens has also, like Rutledge, been a frequent author of dissents and concurrences, choosing to express his divergences from the majority rather than to vote in silence. Within his chambers, Stevens has in many ways adopted his own clerkship experience in preference to current models. Unlike the practices of most of his colleagues, Stevens hires fewer clerks, writes his own first drafts, and shares certiorari decisionmaking with his clerks. -
The Honorable William H. Rehnquist 1924–2005
(Trim Line) (Trim Line) THE HONORABLE WILLIAM H. REHNQUIST 1924–2005 [ 1 ] VerDate jan 13 2004 15:12 Mar 26, 2008 Jkt 023500 PO 00000 Frm 00001 Fmt 6687 Sfmt 6687 C:\DOCS\PRINTED\23500.TXT CRS1 PsN: SKAYNE VerDate jan 13 2004 15:12 Mar 26, 2008 Jkt 023500 PO 00000 Frm 00002 Fmt 6687 Sfmt 6687 C:\DOCS\PRINTED\23500.TXT CRS1 PsN: SKAYNE (Trim Line) (Trim Line) WILLIAM H. REHNQUIST CHIEF JUSTICE OF THE UNITED STATES MEMORIAL TRIBUTES IN THE CONGRESS OF THE UNITED STATES VerDate jan 13 2004 15:12 Mar 26, 2008 Jkt 023500 PO 00000 Frm 00003 Fmt 6687 Sfmt 6687 C:\DOCS\PRINTED\23500.TXT CRS1 PsN: SKAYNE scourt1.eps (Trim Line) (Trim Line) Photograph by Dane Penland, Smithsonian Institution Courtesy the Supreme Court of the United States William H. Rehnquist VerDate jan 13 2004 15:12 Mar 26, 2008 Jkt 023500 PO 00000 Frm 00004 Fmt 6687 Sfmt 6688 C:\DOCS\PRINTED\23500.TXT CRS1 PsN: SKAYNE 23500.001 (Trim Line) (Trim Line) S. DOC. 109–7 WILLIAM H. REHNQUIST CHIEF JUSTICE OF THE UNITED STATES MEMORIAL TRIBUTES IN THE CONGRESS OF THE UNITED STATES U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2006 VerDate jan 13 2004 15:12 Mar 26, 2008 Jkt 023500 PO 00000 Frm 00005 Fmt 6687 Sfmt 6687 C:\DOCS\PRINTED\23500.TXT CRS1 PsN: SKAYNE scourt1.eps (Trim Line) (Trim Line) Compiled under the direction of the Joint Committee on Printing Trent Lott, Chairman VerDate jan 13 2004 15:12 Mar 26, 2008 Jkt 023500 PO 00000 Frm 00006 Fmt 6687 Sfmt 6687 C:\DOCS\PRINTED\23500.TXT CRS1 PsN: SKAYNE (Trim Line) (Trim Line) Order for Printing Mr. -
First Amendment Tests from the Burger Court: Will They Be Flipped?
FIRST AMENDMENT TESTS FROM THE BURGER COURT: WILL THEY BE FLIPPED? David L. Hudson, Jr. † and Emily H. Harvey †† I. INTRODUCTION ........................................................................ 52 II. THE LEMON TEST ..................................................................... 53 III. THE MILLER TEST .................................................................... 58 IV. THE CENTRAL HUDSON TEST ..................................................... 63 V. CONCLUSION ........................................................................... 66 I. INTRODUCTION When scholars speak of the Burger Court, they often mention the curtailing of individual rights in the criminal justice arena, 1 federalism decisions, 2 its “rootless activism,” 3 a failure in equal † David L. Hudson, Jr., is a Justice Robert H. Jackson Legal Fellow with the Foundation for Individual Rights in Education (FIRE) and the Newseum Institute First Amendment Fellow. He teaches at the Nashville School of Law and Vanderbilt Law School. He would like to thank his co-author Emily Harvey, the student editors of the Mitchell Hamline Law Review , and Azhar Majeed of FIRE. †† Emily H. Harvey is the senior judicial law clerk for the Hon. Frank G. Clement, Jr., of the Tennessee Court of Appeals. 1. See Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective , 31 TULSA L.J. 1, 14, 44 (1995); Steven D. Clymer, Note, Warrantless Vehicle Searches and the Fourth Amendment: The Burger Court Attacks the Exclusionary Rule , 68 CORNELL L. REV . 105, 129, 141, 144–45 (1982). 2. See David Scott Louk, Note, Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court , 125 YALE L.J. 682, 686–87, 694, 710, 724–25 (2016); Lea Brilmayer & Ronald D. Lee, State Sovereignty and the Two Faces of Federalism: A Comparative Study of Federal Jurisdiction and the Conflict of Laws , 60 NOTRE DAME L. -
Book Review by M
BOOK REVIEW By M. KELLY TILLERY Accuracy, Reality and Nuance A Thorough Evaluation of the Relationship Between the Roberts Court and the Constitution Uncertain Justice Marcia Coyle’s “The Roberts Court: The – The Roberts Court and Struggle for The Constitution” (Simon The Constitution & Schuster, 2013, 464 p.) and Tribe’s Written by Laurence Tribe and fellow Harvard Law School Professor Joshua Matz Mark Tushnet’s “In The Balance: Law 401 pages and Politics on The Roberts Court” $ 32, Henry Holt and Co., 2014 (W.W. Norton & Co., 2013, 352 p.), but this one does the most, the best, in the arvard Law Professor and fewest pages. U.S. Supreme Court scholar While this court has had more than its H Laurence Tribe and co- fair share of 5-4 decisions with Justice author Joshua Matz masterfully distill Kennedy the deciding vote between the the debacle that is the Roberts Court’s right of Roberts, Scalia, Thomas and first decade into only a few hundred Alito and the left of Breyer, Ginsburg, pages of quite readable, informative and Kagan and Sotomayor, neither entertaining prose. ideological ‘block’ is entirely monolithic Those who attended Tribe’s recent PBI or predictable. Nor is the pivot, Justice CLE presentation in Philadelphia, for Kennedy. Thus, “Uncertain Justice.” which this book served as the handout, Even the most jaded liberal critic of will find the professor’s remarks lifted this court will be surprised to find that almost verbatim therefrom, but also although it is, by tradition, called the a further cornucopia of political and “Roberts Court,” the chief justice is constitutional philosophy, thoughtful a la William Howard Taft. -
Justice Sandra Day O'connor: the World's Most Powerful Jurist?
JUSTICE SANDRA DAY O'CONNOR: THE WORLD'S MOST POWERFUL JURIST? DIANE LOWENTHAL AND BARBARA PALMER* I. INTRODUCTION Justice Sandra Day O'Connor has been called a "major force on [the] Supreme Court,"' the "real" Chief Justice, 2 and "America's most powerful jurist."' 3 Others have referred to her as "the most 5 powerful woman in America" 4 and even of "the world.", Even compared to women like Eleanor Roosevelt and Hillary Clinton, there is no one "who has had a more profound effect on society than any other American woman... If someone else had been appointed to her position on the court, our nation might now be living under different rules for abortion, affirmative action, race, religion in school and civil rights. We might well have a different president." 6 Former Acting Solicitor General Walter Dellinger noted, "What is most striking is the assurance with which this formerly obscure state court judge effectively decides many hugely important questions for a country of 275 million people.",7 As one journalist put it, "We are all living in * Diane Lowenthal, Ph.D. in Social and Decision Sciences, Carnegie Mellon University and Barbara Palmer, Ph.D. in Political Science, University of Minnesota, are assistant professors in American University's Washington Semester Program. The authors would like to thank their undergraduate research assistants, Amy Bauman, Nick Chapman-Hushek, and Amanda White. This paper was presented at October 28, 2004 Town Hall The Sway of the Swing Vote: Justice Sandra Day O'Connor and Her Influence on Issues of Race, Religion, Gender and Class sponsored by the University of Maryland Law Journal of Race, Religion, Gender and Class and the Women, Leadership and Equality Program. -
Property and the Roberts Court
Property and the Roberts Court John G. Sprankling I. INTRODUCTION How do property owners fare before the Roberts Court? Quite well. Owners prevail in 86% of civil property-related disputes with government entities.1 But this statistic does not tell the whole story. This Article demonstrates that under the leadership of Chief Justice Roberts the Court has expanded the constitutional and statutory protections afforded to owners to a greater extent than any prior Court. It analyzes the key trends in the Court’s jurisprudence that will shape its decisions on property issues in future decades. Almost 100 years ago, Justice Holmes remarked that government regulation of property which went “too far” would be unconstitutional; yet the precise line between permissible and impermissible action has never been drawn.2 The issue has generated debate through much of American history, particularly in recent decades as the influence of conservative ideology on the Supreme Court has expanded. The Burger and Rehnquist Courts were broadly viewed as more sympathetic to private property than the Warren Court had been. However, the most controversial anti-owner decision of the modern era, Kelo v. City of New London,3 was decided in the final year of the Rehnquist Court. In Kelo, the Court held that the city was empowered to condemn owner-occupied homes and transfer them to private developers as part of an economic redevelopment project4―a ruling that ignited a firestorm of protest across the nation. In his confirmation hearings to serve as Chief Justice, John Roberts pledged to act as an “umpire” on the Court, a person with “no agenda” Distinguished Professor of Law, University of the Pacific, McGeorge School of Law. -
The Supreme Court and Its Shrinking Docket: the Ghost of William Howard Taft
University of Minnesota Law School Scholarship Repository Minnesota Law Review 2006 The uprS eme Court and Its Shrinking Docket: The Ghost of William Howard Taft Kenneth W. Starr Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Starr, Kenneth W., "The uS preme Court and Its Shrinking Docket: The Ghost of William Howard Taft" (2006). Minnesota Law Review. 32. https://scholarship.law.umn.edu/mlr/32 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. STARR_3FMT 05/17/2006 09:15:32 AM Essay The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft Kenneth W. Starr† William Howard Taft genially served as the tenth Chief Justice of the United States.1 His career was of breathtaking variety. Younger even than current Solicitor General Paul Clement, the buoyant Solicitor General Taft delivered “speech” after “speech” in the Supreme Court in the late nineteenth cen- tury. Little did he suspect, one might safely surmise, that one day—after an intervening tour of duty as President of the United States—he would occupy the center chair itself and lis- ten to his successors (many times removed) delivering their “speeches” to the Court in the old English style. In those hal- cyon, or at least less hurried, days, lawyers were allowed abun- dant time to present their case, educate the Justices, and per- haps even persuade the Court by the force of oral advocacy.2 Those were also the days when the Court was duty-bound to decide the lion’s share of the cases that came before it.3 The † Dean, Pepperdine University School of Law. -
The Rehnquist Court and Beyond: Revolution, Counter-Revolution, Or Mere Chastening of Constitutional Aspirations?
THE REHNQUIST COURT AND BEYOND: REVOLUTION, COUNTER-REVOLUTION, OR MERE CHASTENING OF CONSTITUTIONAL ASPIRATIONS? THE PROCESSES OF CONSTITUTIONAL CHANGE: FROM PARTISAN ENTRENCHMENT TO THE NATIONAL SURVEILLANCE STATE Jack M. Balkin & Sanford Levinson* I. INTRODUCTION: PARTISAN ENTRENCHMENT Five years ago, we offered a theory of how constitutional change and constitutional revolutions occurred, which we called the theory of “partisan entrenchment.”1 Much has happened in the subsequent half-decade, and we are grateful for this opportunity to offer an update of our thoughts, together with some amendments to our initial formulation. By far the most important amendment is to draw out in more detail how the development of constitutional doctrine by courts occurs within the broader framework of changes in constitutional regimes, which include changes in institutions, legislation, and administrative regulation. The forces of democratic politics drive these regime changes, and the major actors are not courts but the political branches. Although courts may initially resist these changes, in the long run, they cooperate with them, shape their contours, and legitimate them through the development of constitutional doctrine. In the second half of this essay, we describe an emerging regime of institutions and practices that we call the “National Surveillance State,” which, we think, represents the major constitutional development of our era. The National Surveillance State responds to the particular needs of warfare, foreign policy, and domestic law enforcement in the twenty-first century. That such a state is emerging has become clear in the wake of 9/11 and debates about the War on Terror. However, it is not limited to the * Knight Professor of Constitutional Law and the First Amendment, Yale Law School. -
Master Pages
Master Pages 15 • Be Careful With My Court Legitimacy, Public Opinion, and the Chief Justices SHAWN C. FETTIG AND SARA C. BENESH On June 28, 2012, the Supreme Court announced its decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services et al., upholding the Affordable Care Act by a vote of 5-4. Chief Justice John Roberts read his majority opinion. Almost immediately, political scientists and pundits alike began dissecting the opinion and the reason for Chief Justice Roberts’s vote. Public approval of the Court, as noted by the media, was at its lowest levels ever as the Court prepared to hear the case.1 Many argued that the Court’s legitimacy weighed heavily on Roberts as he considered the case, with CBS News reporting that Roberts, as chief justice, “is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.”2 “To be sure,” wrote New York Times reporter Adam Liptak, “the chief justice considers himself the custodian of the Supreme Court’s prestige, authority, and le- gitimacy, and he is often its voice in major cases.”3 He reprised the role in King v. Burwell, the 6- 3 decision announced almost exactly one year later upholding the subsidies associated with the health care exchanges.4 There, Rosen argued, the chief used the case’s reason to confer legitimacy. Judicial restraint, Rosen suggests, drove the chief’s decision, for “In a polarized age, it is important for the Supreme Court to maintain its institutional legiti- macy by deferring to the political branches.”5 We know that the Court is influenced by public opinion and the Court’s decisions are often in line with it.6 We also know that judicial legitimacy is fairly widespread and relatively stable,7 and that it is drawn from diffuse 374 Ward.indd 374 2/12/2016 2:30:33 PM Master Pages Be Careful With My Court • 375 support, a “reservoir of good will,”8 that is resilient and resistant to signifi- cant fluctuation. -
The Rehnquist Court and Criminal Procedure Stephen F
Notre Dame Law School NDLScholarship Journal Articles Publications 2002 The Rehnquist Court and Criminal Procedure Stephen F. Smith Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Stephen F. Smith, The Rehnquist Court and Criminal Procedure, 73 U. Colo. L. Rev. 1337 (2002). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/448 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. THE REHNQUIST COURT AND CRIMINAL PROCEDURE STEPHEN F. SMITH* INTRODUCTION This Conference, like a growing body of academic literature, discusses the phenomenon of conservative judicial activism. Has the Rehnquist Court been "activist"-whatever that means-in its approach to constitutional adjudication? With recent rumors that Chief Justice Rehnquist will soon announce his retirement, this is a particularly topical subject. Indeed, even now, one sees the first chiselings of the Court's epitaph, with Professor Erwin Chemerinsky, for example, declaring that the Rehnquist Court has been nothing short of a "disaster" due to its rampant conservative activism.1 The question of whether, and to what extent, the Rehnquist Court is "activist" or practices the "restraint" that judicial conservatives traditionally preach will likely figure prominently in the ultimate assessment of the Court's jurisprudence. Much of this Conference addresses this question within the context of the revival of federalism-based limits on Congress over the last decade. -
Of an Equally Divided Supreme Court
The Journal of Appellate Practice and Process Volume 7 Issue 1 Article 6 2005 Recusals and the "Problem" of an Equally Divided Supreme Court Ryan Black Lee Epstein Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess Part of the Judges Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Ryan Black and Lee Epstein, Recusals and the "Problem" of an Equally Divided Supreme Court, 7 J. APP. PRAC. & PROCESS 75 (2005). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol7/iss1/6 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. RECUSALS AND THE "PROBLEM" OF AN EQUALLY DIVIDED SUPREME COURT Ryan Black and Lee Epstein* INTRODUCTION For over five decades now we political scientists have been systematically studying the United States Supreme Court. We have examined how the justices attain their seats 1 what factors explain the Court's decision to grant certiorari, what impact oral arguments have, 3 whether the Chief Justice self-assigns particularly important cases, 4 why the justices vote the way they do,5 what rationales they invoke to justify their decisions,6 and in what ways those decisions affect social, legal, and economic policy. 7 In short, it seems as though no feature of the Court has * Ryan Black ([email protected]) is a Ph.D. student in Political Science at Washington University in St.