Misreading the Roberts Court

Not a Free Speech Court

Reconsidering Substantive Canons

An empirical examination of decisions by the Roberts Court can illuminate the contemporary Supreme Court’s impact on criminal justice. The Court’s decisions and the voting patterns of its justices confirm the Roberts Court’s generally conservative reputation with respect to criminal justice. However, contrary to commentators’ assertions about a five-member conservative majority actively reshaping criminal justice law in a rights-restricting fashion, the deeply-divided Court actually produces a notable number of rights-protective liberal decisions. Indeed, when the Roberts Court is most deeply divided on criminal justice issues, it has produced more liberal decisions than conservative decisions, due largely to the voting patterns of Justice Anthony Kennedy whose moderate voting record places him at the Court’s center. Justices Antonin Scalia and Clarence Thomas have also made important contributions to liberal decisions in divided cases. Generalizations about the Roberts Court’s conservatism and judicial activism in criminal justice are overstated without recognition of the voting patterns that have contributed to the production of rights-maintaining and rights-expanding liberal decisions.

Constitutional scholars Christopher P. Banks and John C. Blakeman offer the most current and the first book-length study of the U.S. Supreme Court’s “new federalism” begun by the Rehnquist Court and now flourishing under Chief Justice John Roberts. Using descriptive and empirical methods in political science and legal scholarship, and informed by diverse approaches to judicial ideology, from historical to new institutionalist, they investigate how the U.S. Supreme Court rulings have shaped the political principle of federalism. While the Rehnquist Court reinvorgorated new federalism by protecting state sovereignty and set new constitutional limits on federal power, Banks and Blakeman show that in the Roberts Court new federalism continues to evolve in a docket increasingly attentive to statutory construction, preemption, and business litigation. In addition, they analyze areas of federalism not normally studied by scholars such as religious liberty and foreign affairs.

Statutory Interpretation In The Roberts Court’s First Era: An Empirical and Doctrinal Analysis

The rise of human resources departments parallels the increase in the myriad statutory and regulatory requirements that govern the workplace. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented by HR professionals who must carry out these directives on a daily basis. This article looks at the Roberts Court's labor and employment law cases through the lens of human resources. In adopting an approach that is solicitous towards HR departments and concerns, the Roberts Court reflects a willingness to empower these private institutional players. Even if labor and employment law scholars do not agree with the solicitousness, they should use the opportunity to develop a positive theory of HR, one that directs this workforce in a just and ethical manner.

The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures

At the ideological center of the Supreme Court sits Anthony M. Kennedy, whose pivotal role on the Rehnquist Court is only expected to grow in importance now that he is the lone 'swing Justice' on the Roberts Court. The Ties Goes to Freedom is the first book-length analysis of Kennedy, and it challenges the conventional wisdom that his jurisprudence is inconsistent and incoherent. Using the hot-button issues of privacy rights, race, and free speech, this book demonstrates how Kennedy forcefully articulates a libertarian constitutional vision. The Tie Goes to Freedom fills two significant voids—one examining the jurisprudence of the man at the ideological center of the Supreme Court, the other demonstrating the compatibility of an expansive judicial role with libertarian political theory. At the end of Kennedy’s tenure as the most important swing justice in recent Supreme Court history, Helen Knowles provides an updated edition of her highly regarded book on Justice Kennedy and his constitutional vision.

Preemption in the Rehnquist and Roberts Courts: An Empirical Analysis

Post-Racial Constitutionalism and the Roberts Court: Rhetorical Neutrality and the Perpetuation of Inequality provides the first comprehensive Critical Race Theory critique of the United States Supreme Court under Chief Justice John Roberts. Since being named to the Court in 2005, Chief Justice Roberts has maintained a position of neutrality in his opinions on race. By dissecting neutrality and how it functions as a unifying feature in all the Court's race jurisprudence, this book illustrates the consequences of this ostensible impartiality. By examining the Court's racial jurisprudence dating back to the Reconstruction, the book shows how the Court has actively rationalized systemic oppression through neutral rhetoric and the elevation of process-based decisional values, which are rooted in democratic myths of inclusivity and openness. Timely and trenchant, the book illustrates the permanence of racism and how neutrality must be rejected to achieve true empowerment and substantive equality.

The Effect of Ideology and Proportionality of the U.S. Courts of Appeals on the Likelihood of Supreme Court Reversal

What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic

Over the past half century, Republican leaders have had considerable success enlisting courts in their campaign to boost the party’s electoral prospects through the suppression of voting and the manipulation of election rules. Donald Trump has embraced this mission and escalated the assault on America’s electoral processes in new and dangerous ways. Has the Supreme Court supported or opposed this contemptible project? Its recent election law decisions offer a mixed verdict, though its performance mostly leans in an antidemocratic direction. The court’s decisions safeguarding democracy are fewer than those that undermine voting rights and elections, are typically handed down over the objections of Trump’s appointees, and often include doctrinal provisions that enable it to restrict democratic participation in the future. Whether the Supreme Court will abet or discourage the erosion of American democracy in the future is an open question.

The Vanishing Core of Judicial Independence

The legal treatise remains a cornerstone of the American legal system, despite periodic assertions of its decline. This article, "The Persistent Treatise," by Dana Neacsu and Paul Douglas Callister, explores the enduring relevance of treatises in the U.S. legal tradition through both quantitative and qualitative lenses. The study tracks the citation patterns of 77 treatises over six decades, analyzing their presence in state and federal court cases, legal briefs, and scholarly articles. Although overall citation numbers show a gradual decline, the data reveal a nuanced picture: certain treatises continue to be heavily relied upon, especially in higher courts, including the U.S. Supreme Court. Notably, recent decisions by the Roberts Court, including Dobbs v. Jackson Women’s Health Organization, have shown an increasing reliance on historical treatises, such as those by Bracton, Coke, and Blackstone, to support judicial reasoning. The article argues that while the use of treatises has evolved, their role as authoritative sources of legal knowledge persists, with implications for both legal practice and education. The findings underscore the importance of treatises in shaping legal outcomes and highlight the need for further research, particularly in the context of emerging technologies like generative AI, which may influence the future of legal research and the role of traditional legal texts.