Roberts Court Research Articles (Page 1)

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is infamous for the obvious: ending affirmative action. Yes, its wrapping of the diversity rationale for race-conscious admissions in a bow before discarding it is monumental in and of itself. But to accomplish this disposal, the opinion took an approach to suspect classification and strict scrutiny that has gone unprobed. In SFFA, the Roberts Court took advantage of American jurisprudence’s sinuous development of race’s legal conceptualization and strict scrutiny’s formulaic nature to distort suspect classification. Prong by prong, the opinion widened the gap in access to suspect classification for white and non-white people, offering the former group an increased path to “suspicion” and leaving the latter group with a constricted path to “suspicion.” In effect, the opinion has manufactured a dual system of classification that blocks non-white people’s access to the Fourteenth Amendment’s Equal Protection Clause in the affirmative action context. SFFA’s barricading of equality by way of diluting suspect classification is a destination of Fourteenth Amendment jurisprudence’s increasing insistence on a one-size-fits-all approach in race-related challenges. Truly, it is the Supreme Court’s myopic demand for parity that has allowed a “Whites Only” sign to be placed on the door to equal protection. Accordingly, the dismembering of compelling interests and narrow tailoring in SFFA are technical fractures that create a need for a new approach to class-based protection outside of the Fourteenth Amendment. This Note will analyze these fractures to reveal the Court’s strategy, present suspect classification’s bifurcation in practice, and present a solution to SFFA’s establishment of a racialized Fourteenth Amendment access gap.

Administrative law is emerging as a major focus of the Roberts Court’s efforts to reshape American society. And the primary vehicle for the Court’s transformation of administrative law is the clear statement rule, which provides that federal agencies must point to clear language in their enabling statutes when they address issues that trigger the clear statement rules. In administrative law, those issues include federalism, major questions, and property rights. The demise of the Chevron doctrine is unlikely to disturb this trend, because the normative clear statement rules examined in this article go beyond nondeference to agency statutory interpretation to limit Congress’ power to enact statutes containing broad language empowering agencies to adapt to changing circumstances. This article explores the virtues and disadvantages of aggressive judicial deployment of clear statement rules and concludes that the considerable disadvantages outweigh the modest virtues. The clear statement rules have no textual basis in the Constitution or statute. They are instead built on norms that are putatively located somewhere in the Constitution, but in fact are mirages that appear concrete from a distance, yet disintegrate on close inspection. They are therefore easily manipulable to achieve policy outcomes preferred by the judges applying them. At the same time, they unjustifiably limit Congress’ power to use broad language in statutes to allow implementing agencies to adapt to changing conditions, technological advances, and attempts by regulated entities to circumvent implementing regulations. Furthermore, the high bar for clarity that the Supreme Court has established and the vanishingly small likelihood that Congress will react to a judicial remand with legislation specifically empowering the agency to take the judicially rejected action ensures that clear statement rules are in reality weapons in a broader assault on the administrative state. As such, they are undermining the legitimacy of judicial review. The article briefly probes possible responses to the judicial aggrandizement represented by clear statement rules in administrative law. Among other things, Congress could amend the Administrative Procedure Act to prescribe a standard for judicial review of agency statutory interpretation that precludes judicial use of clear statement rules. Because it is highly unlikely that proponents of protective federal regulation will persuade Congress to act in an era of extreme political polarization, however, the article concludes that the best way for the Court to restore the legitimacy of judicial review is to approach the task of statutory interpretation with greater humility and less enthusiasm for advancing a libertarian agenda.

ABSTRACTThis essay surveys the doctrinal transformations to the meaning and scope of the Religion Clauses of the First Amendment as they have been interpreted by the Roberts Court, from its first sitting in 2005 to this article's publication in 2025. Grounded in the proposition that scholarship seeking to document and analyze any shifts in the Court’s religious liberty jurisprudence must take into account the judicial politics that has shaped the Court’s current membership and ideological commitments, it begins by examining how various scholars of law, religion, and politics have sought to contextualize the Roberts Court's judicial behavior in relation to the emergence of the conservative legal movement in American law and politics. Following this, separate sections identify major scholarly conversations taking place regarding the Court’s treatment of the Establishment Clause and the Free Exercise Clause respectively.

Fear and the First Amendment: Controversial Cases of the Roberts Court <i>by Kevin A. Johnson and Craig R. Smith</i>

In 303 Creative LLC v. Elenis, a fiercely divided Supreme Court opined that commercial vendors enjoy First Amendment protections to decline to serve customers, even where such a choice is prohibited by state public accommodations regimes. In identifying a clash between personal liberty and state instruction, the decision could radically reshape the public accommodations statutory regime, which prevents discrimination against customers from minority and vulnerable groups. Standard constitutional interpretation cannot explain 303 Creative, and existing doctrinal and scholarly frameworks will struggle to integrate the decision into the already convoluted narrative of public accommodation law. This Article is the first to identify the unifying theme of public accommodation law from the post-Reconstruction era to 303 Creative: whether commercial activity is a domain of private liberty that protects against state intrusion or, conversely, a shared social practice that is legitimately shaped by collective political decisions. When the Supreme Court characterizes commercial activity as a domain of private liberty, as it did in 303 Creative, the Court’s enforcement of personal rights curtails the scope and effect of public accommodations legislation. When the Court characterizes such activity as a shared public project, as it did during the Civil Rights era, the Court authorizes the legislature to robustly enforce the public accommodations regime and advance anti-discrimination. The judicial classification of commercial society has wider-reaching consequences for constitutional interpretation. The most controversial decisions of the Roberts Court—such as the deregulation of campaign finance and the limitation of governmental regulatory authority over employers—are grounded in the theory that commercial activity is a domain of private liberty that deserves rights-based protections. This conclusion and the competing view that the government has broad authority to curate commercial and economic affairs both seek moral legitimation from the principle of political autonomy. To effectively advance this principle of autonomy, the Supreme Court should classify commercial activity based on actors’ contextual social power.

Securities Regulation and Administrative Law in the Roberts Court

Securities Regulation and Administrative Deference in the Roberts Court

Spending Programs and the New Roberts Court &lt;br&gt;

States resist federal encroachments on their sovereignty. This recalcitrance has been buoyed by the renewed federalism jurisprudence of the Rehnquist and Roberts Courts. Research into state sovereignty typically arranges recalcitrance actions by the policy issue under discussion. This article takes a novel approach and instead evaluates state recalcitrance according to common strategies employed by political actors across the political spectrum. State recalcitrance strategies are categorized into four menu options: (1) Ignore It Exists, (2) Sanctuary Jurisdictions, (3) Pick a Fight, and (4) Political Posturing. The article recognizes these strategies are not mutually exclusive and concludes that the proposed menu of recalcitrance strategies provides states with overlapping justifications for resisting federal policies they disagree with.

Judicial Review of the Legislative Power in the Roberts Court

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion in its 2021 term and to threaten other rights since. The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

Every True Story Ends in Death: How the Roberts Court Killed Originalism

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion in its 2021 term and to threaten other rights since. The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

Heresies, Heretics, and Hermeneutics: The Battle of Textualism Against Pragmatism-And Itself-On the Roberts Court.

ABSTRACT In response to the radical agenda of the Roberts Court, Justice Sonia Sotomayor circulated a rhetoric of demosprudence during the 2021 Supreme Court term to raise alarm about the direction of the Court and to plea for democratic resistance. Demosprudence is an approach to the law that emphasizes the role of democratic participation and urges everyday people to claim agency in shaping the meaning of the law. As she appeared on late night talk shows, spoke at universities, visited legal societies, and gave interviews, Justice Sotomayor’s public address encouraged a wide public audience to resist the conservative supermajority and seize their role as lawmakers, too. This essay expands the genre of demosprudence as judicial practice and demonstrates how a rhetoric of demosprudence can circulate beyond the form of the dissenting opinion through public address. I argue that Justice Sotomayor’s demosprudence challenged an entrenched tradition of off-the-bench judicial rhetoric by confronting the anti-democratic myth of judicial supremacy and clearing inroads for the public to claim more agency in their Constitutional democracy. This essay also lends insight into Justice Sotomayor’s rhetorical legacy and points to demosprudence as a cornerstone of her judicial voice.

Justices on the United States Supreme Court use rhetorical strategies to maintain institutional legitimacy. In the court opinion, a strategy called the monologic voice presents a flattering depiction of the Court. The monologic voice occurs through two tones, the individualistic and collective , which respectively maintain the Justices’ legitimacy through critique and the Court’s legitimacy through unification. We train large language models to identify these rhetorical features in 15,291 modern Supreme Court opinions, issued between 1946 and 2022. While the fraction of collective and individualistic tones has been relatively consistent between 1946 and 2022, the Rehnquist Court used the collective tone at a higher rate than any other Court. In recent terms, 2021 and 2022, we find suggestions of another rhetorical shift, as all Associate Justices of the Roberts Court, excluding Chief Justice Roberts, used the individualistic tone at a historically high rate.

The Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard realizes conceptions about race and the post–Civil War amendments present in the Roberts court’s jurisprudence for several years including, notably, deep skepticism about the continuing need for civil rights remedies and a reading of colorblindness as the core purpose of the Fourteenth Amendment. Conservative litigation groups and the Trump administration are now using the SFFA decision to challenge race-conscious affirmative action programs and fundamental racial justice and civil rights laws and policies. While the Supreme Court has so far declined to adopt the farthest-reaching colorblindness arguments and has even expanded the reach of civil rights statutes in certain contexts, the next few years will likely be consequential for racial justice and antidiscrimination law. The court will almost certainly take up cases challenging the constitutionality of long-standing civil rights laws and recent racially reparative efforts.

The Roberts court has long been characterized as a “probusiness” court, given the ostensible orientation of the court’s Republican-appointed majority and assumptions that President Trump’s appointments have magnified that orientation. But there are reasons to question this characterization. Quantitative analyses often fail to account for the relative importance of individual decisions, the broader legal context in which the court’s decisions are made, or the ways in which decisions can alter or depart from preexisting legal baselines. I show that President Trump’s appointments to the court have fairly consistently voted to restrain the power of administrative agencies, but they have not consistently supported outcomes that are beneficial to business. In cases involving state laws that may fragment or burden national markets, the Roberts court may actually be less sympathetic to business interests than it was prior to Trump’s appointments.

The Roberts court’s immigration jurisprudence has reinforced the discretionary powers of the government and sharply limited constitutional constraints on the exercise of those powers. As a result, the protection of immigrants’ rights increasingly has become a matter of executive grace. Discretion plays a crucial role in the execution of immigration law, and through its use, the executive can promote humanitarian objectives. But even when protective discretionary acts receive the imprimatur of courts, they do not provide lasting security because they are only as good as the policy preferences of the president in power. Indeed, discretion can also perpetuate overly aggressive enforcement in pursuit of those preferences. The checks the Roberts court has imposed on the operation of the enforcement system tend to reflect a skepticism of government, rather than a meaningful regard for the rights and interests of immigrants, leaving Congress as the only meaningful source of stability for the system and for immigrants themselves.

The current Supreme Court’s jurisprudence on issues of executive power differs markedly depending on the precise type of executive power in question. Although generally taking an expansive view of presidential power, it often seeks to narrow the authority of executive branch administrative agencies, especially those engaged in regulation. This contrast creates an appearance of inconsistency: At the same time that the court is expanding presidential power, it is pulling back on administrative action and thereby denying the presidency one of its most important sources of authority. But the court’s approach is more coherent if it is understood as aimed at implementation of a conservative legal and political agenda. Moreover, by both expanding presidential powers and limiting administrative authority, the court’s decisions aggrandize judicial power at the expense of the political branches.