From the NYT: Focus on Chief Justice as Supreme Court Hears Immigration Challenge

A look inside what might motivating the Chief Justice. Aside from deciding on cases - as all justices do - he has to consider the viability of the institution. This raises repeated questions about how he might decide various cases, including the one at hand.

- Click here for the article.

The case, to be argued on Monday at the Supreme Court, presents fundamental questions about executive power against the backdrop of a wrenching national debate over Mr. Obama’s plan to spare millions of immigrants from deportation. But Chief Justice Roberts’s record suggests that he may avoid taking a position on such a divisive and partisan issue, focusing instead on the more technical question of whether the states challenging the Obama administration’s immigration plan have suffered the sort of direct and concrete injury that gives them standing to sue.

That jurisprudential off-ramp would avoid a deadlock or a grand pronouncement from a short-handed court on a politically charged issue in a presidential election year. And that may prove attractive to a chief justice who has said he does not want the Supreme Court to be viewed as a forum where “partisan matters would be worked out.”

A narrow ruling would in some ways echo Chief Justice Roberts’s 2012 opinion sustaining the central feature of the health care law on grounds so carefully calibrated that no other justice joined all of his opinion. And it would be consistent with his stated preference for achieving consensus by defining the legal question at issue in a case as narrowly as possible.

The Chief Justice’s Biggest Decision: John Roberts can either moderate his views or let himself drift into irrelevance.

Dual credit 2305's might find this worth a look. Not only does it discuss Robert's decision making process as chief justice - but it looks ta one of the cases I assigned this semester.

- Click here for the article.

. . . last term, Roberts played a . . . savvy game in Williams-Yulee v. The Florida Bar, a judicial campaign speech case. Williams-Yulee involved a Florida rule that forbade judicial candidates from personally soliciting campaign contributions. We don’t yet have an inside account of how the justices first split on Williams-Yulee, but it’s pretty clear—from the final opinions and from oral arguments—that Roberts had a dual agenda. First, he wanted to uphold the measure, an extraordinarily sensible and slight rule designed to prevent judicial panhandling and preserve judicial impartiality. (Roberts can be almost winsomely obsessive about maintaining America’s trust in judges.) Second, he wanted to retain the stringent “strict scrutiny” standard for laws that restrict judicial candidates’ speech, allowing Florida’s rule to survive while reminding states that any suppression of such speech must be narrowly tailored.

The other four conservatives were eager to strike down the Florida rule; the four liberals wanted to uphold it, but almost certainly preferred a lower standard of scrutiny. Ultimately, Roberts split the baby: He sided with the liberals to uphold the measure, but agreed with the conservatives that judicial speech laws must be subject to strict scrutiny. The compromise drew two grumbling opinions from Justices Ruth Bader Ginsburg and Stephen Breyer about the unsuitability of strict scrutiny in the judicial campaign context. But both justices signed onto the bulk of Roberts’ majority opinion, allowing the chief to strike a deft balance between the two blocs.

From USA Today: Chief Justice John Roberts seeks to limit role of courts

Opportunities to bring lawsuits forward are being limited. Fewer people are felt to posses "standing" to sue.

- Click here for the article.

By siding with the Supreme Court's liberal wing on two major cases last week, Chief Justice John Roberts lent credence to conservatives' concerns that they can't count on his vote. But as he moves into his second decade as the nation's 17th chief justice, Roberts is proving to be strikingly consistent in one area that conservatives applaud. He wants to close the courthouse doors to challengers with tenuous legal grounds or claims, thereby limiting the role of the judicial branch he leads.

That desire has been on display regularly during the first half of the high court's 2015 term, both in rulings Roberts joined and in those he opposed. At nearly every opportunity, he voted to limit plaintiffs' access — demanding that they prove being harmed, back up their challenge with facts, and opt for arbitration over litigation.
The chief justice wrote the court's first decision of the term, ruling Dec. 1 that a California woman had no right to sue the Austrian national railroad in a U.S. court for severe injuries she suffered on a train platform in Innsbruck.

Two weeks later, he joined the court's 6-3 majority ruling that California customers cannot join a class action lawsuit against satellite TV provider DIRECTV because a federal law favoring arbitration over litigation trumps state law.

. . . In a report on Roberts' first decade as chief justice, the liberal Constitutional Accountability Center found him uniformly stingy on standing and generous on forced arbitration. "He has repeatedly emphasized that the role of the courts should be limited, that they’re not there to solve policy debates," says Elizabeth Wydra, the group's president.

Roberts' preferences and his court's precedents are starting to filter down to lower federal courts. In the year ending Sept. 30, the number of cases filed at federal appellate, district and bankruptcy cases all declined, following a trend begun several years ago. The Supreme Court has seen a 13% drop over five years. To liberals, the trend is ominous. Brian Wolfman, co-director of the Supreme Court litigation clinic at Stanford Law School and former director of Public Citizen Litigation Group, says the trend from class action lawsuits toward arbitration penalizes consumers and workers who cannot afford to sue on their own.

"The consumer is effectively shut out from the civil justice system, and the employer or the corporation is effectively creating its own law," Wolfman says.

Also worth a look: Chief Justice John Roberts' Supreme Court at 10, defying labels.

Regarding the concept of "standing"

I asked 2305 students to think about the concept of standing since there might be - might be - a question about it on the test. Simply put, it's what allows you to sue someone - and what allows the courts to hear your case. You have been directly impacted by a law or executive action.

- Here's the relevant Wikipedia entry on the subject.

Legal observers have noticed that the current Supreme Court - the Roberts Court - has been tightening up the concept of standing, making it more difficult for people to prove harm and thereby taking cases to the court.

- Here's the latest along those lines.

It's written with an ideological agenda, the author argues that conservative justices have been trying to make it more difficult for people too use the courts to address grievances. So in addition to filling you in on the concept of standing, this also touches on ideology.

Here's a test of his argument:

Like many conservative judges, Roberts has sought to make it more difficult for people to get the standing to sue in federal court. In 2007, for example, Roberts joined anopinion that held that taxpayers did not have the standing to challenge expenditures by the executive branch that go to religious institutions.

Conservative justices on the supreme court have also narrowed standing in environmental cases. In a 1992 opinion written by Justice Scalia, the court deniedstanding to citizens bringing a lawsuit based on the Endangered Species Act. Vigilant citizens were denied the ability to compel enforcement of the statute in the face of executive inaction.

Paul Ryan and John Roberts

The latest on the new Speaker and the not so new Chief Justice.

Here's a bit on the folks he's surrounded himself and his efforts to set an agenda for House Republicans for next year.

- Meet Paul Ryan’s Kitchen Cabinet.
- Paul Ryan, the GOP's Idea Man, Calls for Bold New Ideas.
- Ryan Throws Down Republican Gauntlet in Outlining House Agenda for ’16.
- Paul Ryan Pitches ‘Confidence’ to a Timid GOP.

And few items related to Roberts - notably the unique responsibilities a chief justice has regarding the Supreme Court as an institution.

- Chief Justice John Roberts on taking on a Democratic President (FDR).
- Chief justice favors some when assigning court’s major decisions.
- Chief Justice Likely Helped Set Stage For Nationwide Marriage Equality Decision.
- Ten Years Of The Roberts Court.

Is there a religious right to grow a beard?

According to every Justice on the Supreme Court - yes.

- Click here for the decision.

At least one 2305 student will be looking at the case of Holt v. Hobbs. Hobbs is a Muslim prisoner who claimed that his religious beliefs required him to grow a beard. Hobbs is the director of the Arkansas Department of Correction who sought to prevent this on the grounds that a beard could be used to conceal weapons and other contraband as well as try to disguise his identity.

The court disagreed with Hobbs.

There are a variety of points that can be made about this case, it will be the job of each student to develop a good one. I'll provide some hints about what directions are worth pursuing, but I want you all to take the first step. In my opinion the best resource you have is the page devoted to the case on ScotusBlog - click here for Holt v. Hobbs - though you might find a few other places to go.

One thing you may wish to begin with - and I'll do this for all the cases students propose to write about - are the specific questions presented to the court. In this case there were several:

I. Whether the Arkansas Department of Corrections’ no beard grooming policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA).

II. Whether a ½ inch beard would satisfy the security goals sought by the policy.

III. Whether the no beard grooming policy violates Petitioner’s First Amendment right to practice Islam as he believes it is supposed to be practiced by the wearing of the beard.

IV. That the United States Court of Appeals for the Eighth Circuit has decided that the no beard grooming policy does not violate the RLUIPA, but this Court should decide the matter since it has not done so and should rule whether grooming policies of any Department of Correction that do not allow for a religious exception exemption are constitutional.

V. That the United States Court of Appeals for the Eighth Circuit’s decision in this case conflicts with other circuit’s rulings on the matter.

VI. That the ADC grooming policy of no beards is not the least restrictive means of achieving the desired objective of staunching the flow of contraband and identifying prisoners in the event of an escape.

I'd suggest thinking about these questions. You might also want to get familiar with the law in question, the Religious Land Use and Institutionalized Persons Act.

You should also get familiar with the concept of strict scrutiny. It's the level of proof that the government has to clear in order to justify a restriction on a basic civil liberty such as the exercise of religion.

The current Supreme Court - the Roberts Court - has focused quite a bit on religious freedom. You might want to catch up a bit on that. Here are some reasonable sources.

- How Serious Is the Supreme Court About Religious Freedom?
- The Roberts Court and the Separation of Church and State.
- Landmark court cases.

More to come.
 


   

From Politico: How the Supreme Court Changed America This Year

I'll post separate items on the Supreme Court decisions released in the past few days, but here's an article that looks at the totality of the impact the court has had on a variety of factors in American government.

- Click here for the article.

Heres' the intro:

The justices have retired their robes for the summer (and the interns, their running shoes), after handing down decisions on issues ranging from Obamacare to affirmative action, campaign finance to school prayer. This term lacked a blockbuster decision like the court’s overturn of the Defense of Marriage Act last year or its upholding of the Affordable Care Act the year before that, so amid the back-and-forth about what the court’s 144 opinions this term really mean, we decided to pose a simpler, bigger-picture question to some of the best legal thinkers around the country: How has the Supreme Court changed America this term?

Some argued that the Roberts Court pushed the country farther to the right, while others noted the relatively low number of 5–4 decisions and high number of unanimous ones—perhaps a sign of diminished partisanship this year. Still others homed in on particular legal issues, citing the court’s commitment to freedom of speech and religion and to the right to privacy, or particular cases with the broadest political or social impact—McCutcheon, Hobby Lobby and Riley v. California seemed to top the list. Then again, there were those who thought the 2013-2014 term was a bit of a shrug. “For the most part, the Supreme Court didn’t rock the boat,” writes one. But for most, it was another year of big decisions—and big consequences for Americans.

From the National Journal: The End of Campaign Finance Reform? Wednesday's Supreme Court ruling is limited, but could lead to further rollbacks in regulations.

More fallout from McCutcheon:

- Click here for the article.

Despite the hype, the impact of the Supreme Court's decision striking down aggregate donation limits Wednesday is limited. The ruling doesn't mean that people can give unlimited amounts of money to candidates; it means a small pool of well-heeled donors can simply dole out donations to more candidates and party committees.

But campaign finance reform advocates are getting increasingly nervous over the longer-term impact of the Court's McCutcheon v. FEC decision, bolstered by other recent rulings on the subject. Experts see the possibility of a future battle over a more consequential subject: the decades-old cap on the amount an individual donor can give to a campaign.

Wednesday's 5-4 decision raised the possibility that the next step for those opposed to campaign finance regulations will be to contest the legality of individual donation limits, a bedrock principle of the current system. That such a move is even being discussed now is indicative of how much the courts have rewritten the laws governing money in politics.

From ScotusBlog: Opinion analysis: Freeing more political money

A look at the courts decision in McCutcheon.

- Click here for the post.

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors. By a five-to-four vote, the Court struck down the two-year ceilings that Congress has imposed on donations to presidential and congressional candidates, parties and some — but not all — political action groups.

The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be. Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted.

The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties. The new ruling leaves that option open if a donor does not want to directly support a candidate or a party committee and stay within the per-donation caps.

Even so, the practical result of the new ruling is almost sure to be that wealthy individuals favoring specific candidates or party positions will be able to spread their money around among more candidates and political groups.

A business friendly Supreme Court

The NYT flags a study published in the Minnesota Law Review that argues the current Supreme Court is the most business friendly court since WW2:

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Feedback on Shelby v Holder

Court observers tell us that the oral arguments fell along ideological lines. Conservative justices suggested they are ready to strike down the pre-clearance requirement and liberals are ready to uphold it. Predictably, they argue it will come down to where the most centrist Justice - Kennedy - will vote.

- National Journal: High Court's Conservatives Cast Doubt on Key Voting Rights Act Provision.


- National Journal: The Supreme Court Seems Ready to Send Voting Rights Issue to Congress.

- The Hill: Supreme Court justices hint at striking Voting Rights Act provision.

- NYT: Voting Rights Law Draws Skepticism From Justices.

- For SCOTUSBlog's commentary, click here.

Here's the Robert's Court

I have a similar photograph in the power points somewhere, but in case you haven't come across it yet - here's the current Supreme Court. It's called the Robert's Court because John Roberts is the Chief Justice (duh), the 17th in US history. A good way to walk through history is to look at each era of the Supreme Court (click here for another look at it).

If you are really ambitious you can look at how the composition of the court has changed under each Chief Justice, and at the list of the clerks that worked under each justice. That might be overkill though.

More to the point, here are a few items on the Roberts Court that might be worth discussing in class. Chief Justices have a special responsibility to look after the institutional viability and well being of the court, and each has their own way to do so. John Roberts has been Chief Justice for about 8 years now, so court observers have been able to start making educated guesses about his impact on the court and what motivates him.

- The NYT editorialized that under Roberts the court's conservatives no longer adhere to judicial restraint, but instead actively seek to imposed their views of proper public policy on the law. This means the under Roberts, conservatism on the court has been transformed. It no longer holds itself outside of politics, but is instead actively involved in it.

- The New Republic argues that Robert's decision in the Affordable Care Act decision was meant to place the court above politics. His primary intent was to ensure that the court would not lose legitimacy - and as a result the only real strength the court has - by being perceived as being just another partisan institution.

- A Huffington Post piece states that despite Robert's vote to uphold the ACA, the Robert's court has made landmark, activist decisions decisions overturning multiple precedences including cases involving gun control, campaign contributions, affirmative action and environmental protection. Many of these were accomplished with 5-4 votes, which suggest that Roberts sees little need to build consensus for these moves. The court's public support has waned as a result, which might be bad for its future strength.

- The Supreme Court may be growing increasingly contemptuous of Congress and the executive branch. Here's back and forth on that point.

- Party polarization is not just for Congress. The NYT reported that "more conservative justices are much more likely than were their predecessors to hire clerks who worked for judges appointed by Republicans. And the more liberal justices are more likely than in the past to hire from judges appointed by Democrats."

- The clerks are apparently a secretive bunch who do not talk much at all about what happens in the courts. And when they leave the Supreme Court, clerks command top dollar on the market.

7 - Written Assignment GOVT 2305 #7 and Summer 2 GOVT 2302 Assignment #2

Since the Supreme Court's decision on Obamacare - and Chief Justice Roberts surprise vote upholding it - a lot of speculation has focused on why Roberts voted as he did. Apart from any opinions he may have had on the case itself, some have argued that he was driven at least in part by a desire to ensure that the Supreme Courts' integrity not be compromised by what could be seen as a political decision.

This may or may not be the case, but it points out that part of what the Chief Justice is attuned to is the court's reputation, which in a sense is its major source of power. More than other members of the court, Roberts is tasked with preserving the strength of the court. That may help explain his decision, or not. Regardless, it points out the unique role of the chief justice on the court, which is what I want you to consider in this week's assignment.

What are commentators saying about John Roberts in the wake of the decision on the Affordable Care Act? What may have motivated his reasoning? What does it say about his goals for the court and his strategy for obtaining it?

Here are a few places to start your thinking on this matter:
- The Real Reason John Roberts Upheld ObamaCare?

- WSJ: A Vast New Taxing Power.
- Newt Gingrich: John Roberts' Obamacare Ruling 'Probably Healthy For The Country'
- ScotusBlog: Law Before Politics.

As always - find your own sources as well. Make it good - thanks.

John Roberts: Burkean Conservative

Andrew Sullivan argues that the chief justice's ACA decision reveals that he's the only conservative on the court dedicated to the preservation of strong institutions - which was once the defining principle of conservatism. The rest seems committed to using the court to promote conservative political positions - which tend to shift. This strain is associated with Edmund Burke, whose Reflections on the Revolution in France was once required reading.

Here's a primer on Burke's brand of thought:

Burke is the father of modern conservatism, and still its wisest oracle. Tradition-minded but (contrary to stereotype) far from reactionary, he believed in balancing individual rights with social order. The best way to do that, for Burke, was by respecting long-standing customs and institutions while advancing toward liberty and equality. Society’s traditions, after all, embody an evolved collective wisdom that even (or especially) the smartest of individuals cannot hope to understand comprehensively, much less reinvent successfully.
Sullivan wonders of the other conservatives on the court share this vision of a strong judiciary independent of political parties. Here's a similar point.

The ACA decision

Here are A few links related to yesterday's decision:

The breaking story from the NYT: Supreme Court Lets Health Law Largely Stand, in Victory for Obama.

The text of the decision here: NFIB v. Sebelius.

An interactive look at the decision.

Andrew Sullivan's compilation of reactions here.

We read through the syllabus in class yesterday, but expect more soon. Analysis is pervasive. I'll link to some of the better comments. 01s and 02s will be hitting this hard next week (especially 02s since we start looking at the judiciary next week). 05s and 06s can expect written assignments on this later this weekend.

Why might John Roberts vote to uphold the individual Mandate?

Ironically because it might be the conservative thing to do. This commentator points out that Chief Justice Roberts tends to yield to history and precedence when deciding cases and there is little precedence for making a decision which drastically changes the court's interpretation of the commerce clause and throws out what has been accomplished with expanded Congressional power under the commerce clause.

A historically minded judge -- such as Roberts -- will be well served to recall the difficulties that Federal courts encountered during the 60 years preceding Wickard in distinguishing between Federal statutes that legitimately affected "commerce between the several states" and those that allegedly did not -- cases involving things such as antitrust laws, the Pure Food and Drug Act, restrictions on child labor and alcohol distribution and the creation of the NLRB. That is another reason for why the Roberts Court will, in my opinion, decide that legal challenges to the individual mandate are too much of a departure from legal precedent and too fast of an assault on the citadel of Federal powers. Such a decision would be profoundly conservative -- in the best sense of the word.

Corporations are not Persons After All

From the NYT:

In a lively decision that relied as much on dictionaries, grammar and usage as it did on legal analysis, the Supreme Court on Tuesday ruled unanimously that corporations have no personal privacy rights for purposes of the Freedom of Information Act.

AT&T, the plaintiff in the case, had sought to block the release of documents it had provided to the government. It argued that the documents should be withheld under an exemption to the law that applied to records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

- Full info from ScotusBlog: Federal Communications Commission v. AT&T, Inc.
- Slate thinks John Roberts might be our funniest justice yet.

The Roberts Court Tilts to the Right

This is hardly news, but this NYT article provides empirical support for the nature of the conservative
direction the Supreme Court has taken since Roberts and Alito joined it.

Topics for 7/6/10

Yesterday we watched the first part of the Kagan confirmation hearings -- Leahy's opening remarks. Today we will watch Session's remarks and as much of what follows as we can handle.

I also want to read through this article on the Robert Court's coming of age (the NYT editorializes that it was "aggressive"). It contains a graphic that outlines the major cases of this terms and how the justices voted on them.

In Texas news, the Texas Supreme Court clears the way for the Green Party to be on the November ballot.

Animal Cruelty Videos . . .

. . . are protected by the First Amendment.

Read the decision: The U.S. v Stevens.

More links:
- SCOTUSblog commentary.
- Revised legislation will be introduced soon.