The Roberts Court: The Struggle for the Constitution
Page 40
4. Marcia Coyle, “The Case at the Center of Citizens United,” National Law Journal, Aug. 3, 2009.
5. Author’s interview with Justice Antonin Scalia, July 2011.
6. Author’s interview with Norman Ornstein, American Enterprise Institute, September 2011.
7. Heather Gerken, Yale Law School, “Campaign Finance and the Doctrinal Death Match,” Balkinization, balkin.blogspot.com/2011/06/campaign-finance-and-doctrinal-death.html.
PART 4: HEALTH CARE
CHAPTER 13
1. Author’s interview with former Florida attorney general Bill McCollum, June 2012.
2. Jordan Fabian, “State Ags request Reid, Pelosi drop Nebraska Medicaid funds from health bill,” The Hill, Dec. 30, 2009.
3. David Rivkin and Lee A. Casey, “Mandatory Insurance Is Unconstitutional,” Wall Street Journal, Sept. 18, 2009.
4. Author’s interviews with David Rivkin and Lee Casey, May 2012.
5. “Tea Party Activists Make Last Stand Against Health Care Vote,” Foxnews.com, March 20, 2010.
6. Randy Barnett, Nathaniel Stewart, and Todd Gaziano, “Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional,” Heritage Foundation Legal Memorandum, No. 49, Dec. 9, 2009.
7. Letter from James Madison to J. C. Cabell, Feb. 13, 1829, The Constitutional Sources Project, www.consource.org/document/james-madison-to-j-c-cabell-1829-7-1-2/.
8. Jim Chen, “The Story of Wickard v. Filburn,” University of Louisville Law School Legal Studies Research Paper Series, No. 2008-40 (available at http://ssrn.com/abstract=1268162).
9. Marcia Coyle, “Supreme RX: The health care law’s pro-and-con spin doctors,” National Law Journal, Nov. 9, 2011.
10. Author’s interview with Robert Weiner, June 2012.
11. Although Justice Stevens concluded that the death penalty was unconstitutional in Baze v. Rees, he concurred in the decision upholding Kentucky’s lethal injection procedures out of respect for the Court’s precedents on the death penalty. He explained: “The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by The Chief Justice or Justice Ginsburg, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.”
12. Biskupic, Joan, “Justice Stevens Keeps Cards Close to Robe,” USA Today, March 12, 2010.
13. National Public Radio interview with Justice Ruth Bader Ginsburg, May 2, 2002.
CHAPTER 14
1. Senate Judiciary Committee Hearing on Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States, June 28–30 and July 1, 2010 (available at: http://purl.fdlp.gov/GPO/gpo12385).
2. Tony Mauro, “A Strong Supreme Court Term for Business,” National Law Journal, Aug. 1, 2012.
3. Lee Epstein, William M. Landes, and Richard A. Posner, “Is the Roberts Court Pro-Business?” at http://epstein.usc.edu/research/RobertsBusiness.pdf, Dec. 17, 2010.
4. Robin Conrad, “The Roberts Court and the Myth of a Pro-Business Bias,” Santa Clara L. Rev. 49, no. 4, Jan. 1, 2009.
5. Author’s interviews with Obama administration and Department of Justice lawyers, July–August 2012.
6. Author’s interview with Neal Katyal of Hogan Lovells, June 2012.
7. Thomas More Law Center v. Obama, 651 F.3d 529 (CA6 2011).
8. State of Florida v. U.S. Department of Health and Human Services, 648 F.3d 1235 (CA11 2011).
9. Liberty University v. Geithner, 671 F.3d 391 (CA4 2011); Commonwealth of Virginia v. Sebelius, 656 F.3d 253 (CA4 2011).
CHAPTER 15
1. Author’s interviews with Department of Justice attorneys, July–August 2012.
2. Tony Mauro, “Paul Clement’s Second Chair,” National Law Journal, April 2, 2012.
3. Marcia Coyle, “On Deck to Argue Against the Mandate: Carvin,” National Law Journal, March 14, 2012.
4. U.S. Department of Health and Human Services v. State of Florida, No. 11-398, Brief for Petitioners on the Minimum Coverage Provision (available at acalitigationblog.blogspot.com/).
5. U.S. Department of Health and Human Services v. State of Florida, No. 11-398, Brief for State Respondents on the Minimum Coverage Provision (available at acalitigationblog.blogspot.com/).
6. U.S. Department of Health and Human Services v. State of Florida, No. 11-398, Brief for Private Respondents on the Individual Mandate (available at acalitigationblog.blogspot.com/).
7. Joan Biskupic, “Calls for Recusal Intensify in Health Care Case,” USA Today, Nov. 20, 2011; Robert Barnes, “Health-care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” Washington Post, Nov. 27, 2011.
8. Jeff Shesol, “Should Justices Keep Their Opinions to Themselves?” New York Times, June 28, 2011.
9. Ryan Malphurs and L. Hailey Drescher, “ ‘That’s Enough Frivolity’: A Not So Funny Countdown of the Supreme Court’s Affordable Care Act Oral Arguments,” June 6, 2012. “We studied the justices’ interactions within oral arguments across the four cases, and disappointingly learned the justices took a less than fair approach when questioning parties” (available at SSRN: http://ssrn.com/abstract=2079136, or http://dx.doi.org/10.2139/ssrn.2079136).
10. American Tradition Partnership v. Bullock, No. 11-1179, per curiam, decided June 25, 2012; Breyer, Ginsburg, Sotomayor, and Kagan, dissenting.
11. Jan Crawford, “Roberts Switched Views to Uphold Health Care Law,” CBS News, July 1, 2012.
12. Fund, John, “The Flip That Will Flop?” National Review Online, July 2, 2012.
13. Marcia Coyle and Tony Mauro, “Justices Say Any Rifts Are Temporary,” National Law Journal, July 16, 2012.
14. Sarah Kiff, “Neal Katyal on Defending Obamacare,” Washington Post, March 28, 2012.
BIBLIOGRAPHY
BOOKS
Bailey, Michael A. and Forrest Maltzman. The Constrained Court. Princeton University Press, 2011.
Biskupic, Joan. American Original. Farrar, Straus & Giroux, 2009.
Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. Knopf, 2005.
———. Making Our Democracy Work. Knopf, 2010.
Burns, James MacGregor. Packing the Court. Penguin, 2009.
The Cato Institute. Cato Supreme Court Review 2009–10. 2010.
Greenburg, Jan Crawford. Supreme Conflict. Penguin, 2007.
Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. Oxford University Press, 2004.
Powe Jr., Lucas A. The Supreme Court and the American Elite. Harvard University Press, 2009.
Rehnquist, William H. The Supreme Court. Knopf, 2001.
Rosen, Jeffrey. The Supreme Court: The Personalities and Rivalries that Defined America. Holt, 2007.
Savage, David G. Turning Right: The Making of the Rehnquist Supreme Court. John Wiley, 1993.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton University Press, 1997.
Schwartz, Bernard. A History of the Supreme Court. Oxford University Press, 1993.
Stevens, John Paul. Five Chiefs. Little, Brown, 2011.
Toobin, Jeffrey. The Nine. Doubleday, 2007.
Tushnet, Mark. A Court Divided. Norton, 2005.
ARTICLES
“Civil Rights: The Heller Case,” 4 NYU J.L. & Liberty 293 (Minutes from a Convention of the Federalist Society, 11-20-08)
Balkin, Jack M., and Sanford Levinson. “Understanding the Constitutional Revolution,” 87 Va. L. Rev. 1045 (2001)
Barnett, Randy E. “Scalia’s Infidelity: A Criti
que of Faint-Hearted Originalism,” 75 U. Cin. L. Rev. 7 (2006)
———, Don B. Kates, “Under Fire: The New Consensus on the Second Amendment,” 45 Emory L.J. 1139 (1995)
Biskupic, Joan. “The Alito/O’Connor Switch,” 35 Pepp. L. Rev. 5 (2008)
Charles, Patrick J. “The Right of Self-Preservation and Resistance: A True Legal and Historical Understanding of the Anglo-American Right to Arms,” Cardozo Law Review De Novo, Vol. 18, 2010
Chen, Jim. “The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce,” Constitutional Law Stories (Michael C. Dorf ed., 2d ed., Foundation Press, 2009)
Conrad, Robin S. “The Roberts Court and the Myth of a Pro-Business Bias,” 49 Santa Clara L. Rev. 997 (2009)
Cornell, Saul “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” 69 Ohio St. L. J. 625 (2008)
Epstein, Lee, William M. Landes, Richard A. Posner. “Is the Roberts Court Pro-Business?” Dec. 17, 2010, at: http://epstein.usc.edu/research/RobertsBusiness.pdf
Gerken, Heather K. “Justice Kennedy and the Domains of Equal Protection,” 121 Harv. L. Rev. 104 (2007)
Goldstein, Joel K. “Not Hearing History: A Critique of Chief Justice Roberts’s Reinterpretation of Brown,” 69 Ohio St. L.J. 791 (2008)
Hasen, Richard L. “Citizens United and the Illusion of Coherence,” 109 Mich. L. Rev. 581 (2011)
———. “No Exit? The Roberts Court and the Future of Election Law,” 57 S. C. L. Rev. 669 (2006)
Howell, Larry. “Once Upon a Time in the West: Citizens United, Caperton, and the War of the Copper Kings,” 73 Mont. L. Rev. 25 (2012)
Moses, Margaret L. “Beyond Judicial Activism: When the Supreme Court is No Longer a Court,” 14 U. Pa. J. Const. L. 161 (2011)
Ryan, James E. “The Supreme Court and Voluntary Integration,” 121 Harv. L. Rev. 131 (2007)
Siegel, Neil S. “Umpires at Bat: On Integration and Legitimation,” 24 Constitutional Commentary 701 (2008)
Siegel, Reva B. “Dead Or Alive: Originalism As Popular Constitutionalism in Heller,” 122 Harv. L. Rev. 191 (2008)
———. “Heller & Originalism’s Dead Hand—In Theory and Practice,” 56 U.C.L.A. L. Rev. 1399 (2009)
Wilkinson III, J. Harvie. “Of Guns, Abortions, and the Unraveling Rule of Law,” 95 Va. L. Rev. 253 (2009)
KEY ROBERTS COURT DECISIONS
The following decisions raised the most controversial and significant issues during the first seven terms of the Roberts Court.
Ayotte v. Planned Parenthood of Northern New England (2006): 9–0 decision by Justice Sandra Day O’Connor. A New Hampshire law requiring parental notification when minors seek abortions was ruled unconstitutional because it lacked an exception for the health of the mother, but the entire law did not have to be struck down; lower courts may be able to find a narrower remedy.
League of United Latin American Citizens (LULAC) v. Perry (2006): 5–4 decision by Justice Anthony Kennedy. The Texas Legislature’s redistricting plan did not violate the Constitution, but part of the plan that diluted Latinos’ votes violated the Voting Rights Act of 1965. Majority: Kennedy, Stevens, Souter, Ginsburg, Breyer; Dissent: Roberts, Scalia, Thomas, Alito.
Hudson v. Michigan (2006): 5–4 decision by Justice Antonin Scalia. The Fourth Amendment does not require the exclusion of evidence when police violate the “knock and announce” rule before executing a search warrant. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Garcetti v. Ceballos (2006): 5–4 decision by Justice Anthony Kennedy. Public employees have no First Amendment protection for statements made in the course of their official duties. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Kansas v. Marsh (2006): 5–4 decision by Justice Clarence Thomas. Kansas law that imposes the death penalty when mitigating and aggravating circumstances are equally balanced does not violate the Eighth Amendment. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Hamdan v. Rumsfeld (2006): 5–3 decision by Justice John Paul Stevens. Military commissions established by the George W. Bush administration violate the Uniform Code of Military Justice and the Geneva Conventions. Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer; Dissent: Scalia, Thomas, Alito. (Roberts recused).
Parents Involved in Community Schools v. Seattle School District; Meredith v. Jefferson County Board of Education (2007): 5–4 decision by Chief Justice John Roberts Jr. The use of race in the assignment of students to public schools violates the 14th Amendment. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Gonzales v. Carhart (2007): 5–4 decision by Justice Anthony Kennedy. The federal Partial-Birth Abortion Ban Act of 2003 is not unconstitutional because it lacks an exception to protect the health of the woman. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Massachusetts v. Environmental Protection Agency (2007): 5–4 decision by Justice John Paul Stevens. The Environmental Protection Agency has authority under the federal Clean Air Act to regulate carbon dioxide and other greenhouse gases. Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer; Dissent: Roberts, Scalia, Thomas, Alito.
Ledbetter v. Goodyear Tire & Rubber Co. (2007): 5–4 decision by Justice Samuel Alito Jr. Workers bringing Title VII pay discrimination claims must file a complaint with the Equal Employment Opportunity Commission within 180 days of the discriminatory pay-setting decision or be time-barred, even if they were unaware of the discrimination at that time or the effects continued to the present. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Hein v. Freedom from Religion Foundation (2007): 5–4 decision by Justice Samuel Alito Jr. Citizens do not have standing as taxpayers to bring establishment clause challenges to Executive Branch religious-related programs if they are funded by general appropriations instead of by specific congressional grants. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Federal Election Commission v. Wisconsin Right to Life (2007): 5–4 decision by Chief Justice John Roberts Jr. The Bipartisan Campaign Reform Act’s ban on the use of corporate treasury funds for political advertisements in the sixty days before an election is unconstitutional as applied to ads that do not explicitly endorse or oppose a candidate. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Morse v. Frederick (2007): 5–4 decision by Chief Justice John Roberts Jr. School officials do not violate the First Amendment when they prohibit pro-drug messages, such as a student sign saying Bong Hits for Jesus at a school-supervised event. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Bell Atlantic Corp. v. Twombly (2007): 7–2 decision by Justice David Souter. An antitrust lawsuit alleging a violation of Section 1 of the Sherman Act must allege facts that plausibly suggest an illegal conspiracy. Majority: Roberts, Scalia, Kennedy, Souter, Thomas, Breyer, Alito; Dissent: Stevens, Ginsburg.
Bowles v. Russell (2007): 5–4 decision by Justice Clarence Thomas. A judge’s error on the time for the filing of an appeal by a criminal defendant does not excuse the late filing of the appeal. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Boumediene v. Bush (2008): 5–4 decision by Justice Anthony Kennedy. The Military Commissions Act of 2006 violates the Suspension Clause of the Constitution. Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissent: Roberts, Scalia, Thomas, Alito.
Kennedy v. Louisiana (2008): 5–4 decision by Justice Anthony Kennedy. The Eighth Amendment bars states from imposing the death penalty for the rape of a child where the crime does not result in death. Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer; Dissent: Roberts, Scalia, Thomas, Alito.
Davis
v. Federal Election Commission (2008): 5–4 decision by Justice Samuel Alito Jr. The “millionaire’s amendment” to the 2002 Bipartisan Campaign Finance Act, which raised the contribution limit for candidates running against self-financed candidates, violates the First Amendment. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
District of Columbia v. Heller (2008): 5–4 decision by Justice Antonin Scalia. The Second Amendment guarantees an individual right to possess a gun in the home for self-defense. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Melendez-Diaz v. Massachusetts (2009): 5–4 decision by Justice Antonin Scalia. A criminal defendant has a Sixth Amendment right to confront the lab analyst who prepared a laboratory report intended for use at trial. Majority: Stevens, Scalia, Souter, Thomas, Ginsburg; Dissent: Roberts, Kennedy, Breyer, Alito.
Ashcroft v. Iqbal (2009): 5–4 decision by Justice Anthony Kennedy. An Arab Muslim man arrested after the September 11 terrorist attacks and later released did not plead sufficient facts in his lawsuit charging high-ranking government officials with discrimination. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Caperton v. A.T. Massey Coal Co. (2009): 5–4 decision by Justice Anthony Kennedy. Due process requires a judge to recuse himself from a case in which one of the parties contributed $3 million to the judge’s election campaign. Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer; Dissent: Roberts, Scalia, Thomas, Alito.
Ricci v. DeStefano (2009): 5–4 decision by Justice Anthony Kennedy. Employers must have a “strong basis in evidence” to believe they will be sued for disparate impact discrimination before engaging in intentional discrimination to avoid such a lawsuit. Majority: Roberts, Scalia, Kennedy, Thomas, Alito; Dissent: Stevens, Souter, Ginsburg, Breyer.
Northwest Austin Municipal Utility District No. 1 v. Holder (2009): 8–1 decision by Chief Justice John Roberts Jr. The Voting Rights Act permits all political subdivisions of a “covered” jurisdiction to seek “bail out” from the requirement that they get preclearance of any changes in their voting practices. Majority: Roberts, Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer, Alito; Dissent: Thomas.