Roberts Court Research Articles

Judicial self fashioning: Rhetorical performance in Supreme Court opinions

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 Post-Racial Deception of the Roberts Court

Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the anti-subordination principle of the Fourteenth Amendment and replaces it with a post-racial anti-differentiation principle: “Eliminating racial discrimination means eliminating all of it.” Expanding the circularity of Chief Justice Roberts’s post-racialism even further, Justice Thomas’s concurrence offers an ostensibly originalist reinterpretation of the Fourteenth Amendment that erases the race-conscious history of the Reconstruction Amendments and reframes it as the codification of the Declaration of Independence. Rejecting this post-racial deception, Justices Sotomayor and Jackson, in dissent, foreground the anti-subordination principle as the essential doctrinal core of the Fourteenth Amendment and offer a rebuke of the Court’s facile post-racialism with a comprehensive discussion of systemic racism, structural inequality, and the present-day effects of past discrimination. The Court’s post-racial constitutionalism is a post-racial deception which must be discredited and rejected if we are to ever achieve the multi-racial democracy promised by the Second Founding.

Precedent Evasion and Institutional Preservation: Stealth Reversals, the Roberts Court, and Constitutional Reclamation

Precedent Evasion and Institutional Preservation: Stealth Reversals, the Roberts Court, and Constitutional Reclamation

The Post-Racial Deception of the Roberts Court

The Post-Racial Deception of the Roberts Court

In Electoral Disputes, State Justices Are Less Reliable GOP Allies than the U.S. Supreme Court—That’s the “Problem” the Independent State Legislature Claim Hopes to Solve

Scholars have identified serious drawbacks to the independent state legislature (ISL) claim, which precludes state-court review of election laws, thus preventing state guarantees like “free and fair elections” from being enforced. Considering its flaws, we ask why ISL would be pursued so fervently and why the Supreme Court, in Moore v. Harper, adopted a version of it. Examining data that compare election-law outcomes in federal and state supreme courts, we found that state supreme court justices, even if Republican, are not reliable supporters of the GOP electoral agenda. The Roberts court, by contrast, has voted in the GOP-supported direction in most election-law cases it has decided. This, we argue, is why ISL is promoted so vigorously: it takes electoral disputes—such as who can vote, what the rules for counting are, and such—out of the hands of state courts and places them squarely into the hands of the Supreme Court, a reliable partisan ally.

Is the US Supreme Court a reliable backstop for an overreaching US president? Maybe, but is an overreaching (partisan) court worse?

AbstractThe Roberts Court has been called the most “___” Court in history, with many different adjectives being offered. Surprisingly, our study of voting data from Supreme Court terms 1937–2021 shows that the Roberts Court is the most “anti‐president” Court in that period: It has ruled against the president at a greater rate than any other Court. Should we take this to mean that the Court will be there to protect democracy if an overreaching president tries to trample constitutional limits? Not necessarily. Additional analysis and a deep dive into the cases and reasoning reveal a more complicated picture, of a Court exhibiting historic levels of partisan and loyalty bias as well as a strong penchant for judicial supremacy.

Reconstruction's Lessons

In the current moment in the legal struggle for racial equality in the United States, the nation seems at risk of repeating its history. The Roberts Court has failed to fulfill its charge under the Reconstruction amendments to vigorously promote and enforce civil rights protections, and the other branches of government have proved ineffectual or unwilling to step into the breach. The racist far right is rising and the national electorate appears unable to organize in favor of racial justice priorities. In recognition of these partial analogies between conditions then and now, this Article mines the history of Reconstruction and its aftermath for lessons pertinent to the racial justice struggle today. It asks what lessons racial justice activists and legal scholars might glean from that history to help them grow their tally of gains and shrink their tally of losses despite today’s less than ideal legal and political conditions. What the history of Reconstruction teaches is that legal prescription and doctrinal manipulation alone will not bring about greater racial equality; having learned that lesson from Reconstruction’s history, today’s racial justice activists and scholars should direct their efforts towards exploring what new approaches might be effective despite today’s less than optimal legal and political conditions.

Giving the Fourth Amendment Meaning: Creating an Adversarial Warrant Proceeding to Protect From Unreasonable Searches and Seizures

For at least the past 40 years, police and prosecutors have had free reign in conducting illegal searches and seizures nominally barred by the Fourth Amendment. The breadth of exceptions to the warrant requirement, the lax interpretation of probable cause, and especially the “good faith” doctrine announced in U.S. v. Leon have led to severe violations of privacy rights, trauma to those wrongly searched or seized, and a court system overburdened by police misconduct cases. Most scholars analyzing the issue agree that the rights guaranteed by the Fourth Amendment—to be free from unreasonable search and seizure—have been severely eroded or even eviscerated by the Supreme Court. Some suggest that in order to revitalize the Fourth Amendment, the United States should make it easier to secure civil damages after Fourth Amendment rights have been violated. Others have argued that the United States must guarantee stronger ex ante protections to uphold fundamental privacy rights before they are violated. This Note argues that, while warrant requirements do need to be more stringent to safeguard Fourth Amendment rights, warrant requirements cannot on their own sufficiently protect such a sacred right. This Note proposes the adoption of adversarial warrant proceedings, designed to ensure police and prosecutors meet their probable cause burden and to ensure that any lies or sloppy investigative work are rooted out from a warrant application before a warrant is granted. False searches and arrests can be deeply traumatizing and have excruciating and long-term impacts. For the Fourth Amendment to have any meaningful affect, the People must have an advocate—a Warrants Counsel— fighting for their right to be free from unreasonable searches before that right is violated. The Roberts Court’s destruction of the Fourth Amendment leaves little reason to expect protection from unreasonable search and seizure through litigation. Instead, Congress must create the Warrants Counsel program legislatively. Congress should look to the major success of the Federal Defenders program as a blueprint for zealous advocacy and protection of rights. A Warrants Counsel, like a public defender, would be a government paid attorney, present to argue against probable cause before a magistrate whenever police or prosecutors seek a warrant. Like the Sixth Amendment before the public defender system, the Fourth Amendment desperately needs some structure to give its language meaning; the Warrants Counsel system would counterbalance over-powered police and prosecutors in favor of the People.

Judicious invention: flexible application of judicial doctrine in the Roberts Court’s voting rights jurisprudence

ABSTRACT The Roberts Court has issued several important voting rights decisions in the past decade that have enabled voting restrictions at the state and local level. This essay examines two of them, Shelby County v. Holder (2013) and Husted v. A. Philip Randolph Institute (2018). By juxtaposing the reasoning patterns of the majority opinions in Shelby County and Husted, I explore how the majorities in both cases utilized the flexibility of judicial doctrines as sites of invention. Chief Justice Roberts’ opinion in Shelby County combined arguments from circumstance with appeals to stare decisis, whereas Justice Alito’s opinion in Husted relied on a textualist argument. Comparing these approaches illustrates how jurists can flexibly apply judicial philosophies as inventional tools to achieve a desired result in high profile cases. This essay reveals how an understanding of the Supreme Court’s argument invention practices can complement attitudinal and strategic theories of judicial decision-making.

Dobbs and Religious Liberty

In Dobbs v Jackson Women’s Health Organization, the Roberts Court shattered the compromise between prochoice and antichoice worldviews that Casey articulated, both reaffirming Roe as a precedent and altering Roe to empower the antichoice side. I will explain the compromise, connect it to the strengthening of the antichoice side, raise the question of why the compromise wasn’t sufficient for the antichoice side, and sketch out how a First Amendment defense of abortion could lead to regaining a fundamental right to abortion and to strengthening religious pluralism.

The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait

The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past. We also explore other possible explanations.

The Roberts Court 2021–2022: Dobbs and the Continuing Intersection of Law and Medicine

The Roberts Court 2021–2022: Dobbs and the Continuing Intersection of Law and Medicine

The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping

The Roberts Court, State Courts, and State Constitutions: Judicial Role Shopping

Selective Judicial Activism in the Roberts Court

Selective Judicial Activism in the Roberts Court

Shedding Light on the Roberts Court Shadow Docket

Shedding Light on the Roberts Court Shadow Docket

The Triumph of Politics: The Republican Party's Takeover of the US Supreme Court

In this article, Gerald N Rosenberg revisits his 2014 argument that the US Supreme Court is a political institution. Its decisions in affirmative action cases in education are best understood through the political preferences of the justices. Eight years later, the author finds that the Court's opinions have only strengthened this argument. The article analyses affirmative action cases in education between 2014 and mid-2022 and illustrates the power of politics in explaining some of the most important and controversial decisions of the Roberts Court. These include decisions on voting rights (Shelby County v Holder), gun rights (District of Columbia v Heller) and abortion rights (Roe v Wade). The article re-emphasises the need to read these decisions through the political and cultural system within which the Court operates, rather than relying solely on law and precedent.

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

Modernism and the Meaning of Corporate Persons by Lisa Siraganian

<i>Modernism and the Meaning of Corporate Persons</i> by Lisa Siraganian

The Roberts Court and Lost ESI

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September, 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (esi). These changes address the duties of preserving some esi for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on esi, with some predating any version of Rule 37(e). To date, Congress has remained quiet on lost esi in federal civil actions. This article reviews the history behind, and all the current, FRCP provisions on esi, particularly the Rule 37(e) changes. It also reviews the proposed esi changes to Rule 37 in 2013 that were not adopted. These reviews will focus on how the FRCP has addressed and now addresses lost discoverable esi. These reviews are accompanied by an examination of state civil procedure laws on presuit and postsuit esi losses. State laws are examined as they suggest potential FRCP reforms. A brief survey of state spoliation claims, whether in tort, contract, or otherwise, follows because these claims can be pursued in federal courts for either presuit or postsuit esi losses impacting pending civil actions. All this will then serves as the basis for exploring significant issues on lost esi in federal civil actions. Such issues include the uncertainties arising from the FRCP distinctions between esi and nonesi, as well as between varying forms of esi; the challenges in pursuing state spoliation claims in related federal civil actions; and, the problems arising when discoverable esi is lost by nonparties. The explorations will lead to some tentative thoughts on FRCP reforms involving lost esi that would prompt greater justice, efficiency and economy, per the FRCP 1 mandate. Possible new approaches include FRCP amendments broadening the opportunities for presuit esi discovery and creating new avenues for presuit protective orders on behalf of those possessing or controlling relevant esi, perhaps modeled a bit on the recent Arizona Civil Procedure Rule 45.2.

Legal Vigilantes and the Institutionalization of Anti-Democratic Politics

In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers have a new tool: rights-suppressing laws (RSLs). RSLs deputize and subsidize private individuals, empowering them to use civil litigation to deter and punish their neighbors, teachers, colleagues, and local health providers from carrying out highly personal and often constitutionally protected activities. RSLs enacted to date enable (and encourage) random individuals to sue abortion clinicians, and they permit (and, again, encourage) townspeople to sue school administrators and coaches who recognize the equal dignity and worth of their transgender students. Bills empowering students to sue teachers who incorporate antiracist lessons are right now working their way through several state legislatures. Spurred by unsuccessful efforts to obtain judicial review of S.B. 8, Texas’s “heartbeat” abortion law, commentators argue that RSLs allow state legislatures to immunize unconstitutional legislation from judicial review and thus work hand-in-hand with the Roberts Court’s efforts to rollback constitutional guarantees to health access, intimate association, and free and equal citizenship. But this is not the half of it; RSLs fundamentally invert the meaning of legal rights. They do so in order to benefit already powerful groups (at the expense of the marginalized); to prop up the grievance-industrial complex that drives right-wing media and single-issue outrage groups; and, to create and validate a form of white-collar vigilantism that aligns with the overt forms of political violence we’re witnessing in shopping malls, state houses, and school board meetings alike. In effect, RSLs underwrite the cruelest and most corrosive aspects of Trumpist politics, forming an important part of the larger MAGA-inflected attack on democracy in the United States.