Roberts Court

Roberts Court in the United States

Introduction to Roberts Court

The Roberts Court refers to the Supreme Court of the United States since 2005, under the leadership of Chief Justice John G. Roberts. For eight years, the Roberts Court has been at the center of a constitutional maelstrom. According to The Nation, “since John Roberts was appointed chief justice, the Supreme Court has favored the powerful at the expense of everyone else”.

Supreme Court of the United States: History Bush Appointments and the Advent of the Roberts Court

On July 1, 2005, Associate Justice O’Connor announced her retirement, effective upon the confirmation of a successor. Her resignation created the first opening on the Court in 11 years and provided President Bush his first opportunity to name a Supreme Court justice. Bush named federal appeals court judge John G. Roberts, Jr., to replace O’Connor. However, Chief Justice Rehnquist died prior to the confirmation hearings for Roberts, and Bush decided to renominate Roberts for chief justice. In September 2005 the U.S. Senate voted 78-22 to confirm Roberts, making him the 17th chief justice of the Court. In January 2006 the Senate voted 58-42 to confirm Samuel A. Alito, Jr., to replace O’Connor.

The Court returned to the issue of presidential power in the war on terror in June 2006 when it ruled 5 to 3 in Hamdan v. Rumsfeld that special military tribunals or commissions established by President Bush to try the Guantánamo detainees violated a federal statute, the Uniform Code of Military Justice, and the Geneva Conventions. Roberts did not take part in the decision because he had issued a previous ruling in the case, which upheld the Bush administration, while serving as an appeals court judge. The Court rejected the appeals court decision that the Geneva Conventions did not apply because the defendant in the case, Salim Ahmed Hamdan, a suspected al-Qaeda terrorist, was not a party to the Geneva Conventions. Instead the Court, in a majority opinion written by Justice John Paul Stevens, found that Common Article 3 of the Geneva Conventions provided protections for Hamdan, including the right to “judicial guarantees” that the military commissions denied, such as the right to be present at his trial and to be “privy to the evidence against him.” The dissenting justices-Alito, Scalia, and Thomas-argued that the Detainee Treatment Act, passed by Congress in December 2005, prevented the Court from hearing the case, an issue that the majority addressed and dismissed. Thomas further argued that the majority decision “openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs.” But Justice Stephen G. Breyer in a concurring opinion for the majority noted that the Court’s ruling was consistent with earlier decisions that Congress had not issued the president “a blank check” in the war on terror.

In April 2007 the Court issued a landmark environmental ruling and its first ruling relating to the issue of global warming. In Massachusetts et al. v. Environmental Protection Agency et al., the Court rejected the Bush administration’s argument that the Environmental Protection Agency (EPA) had no business regulating greenhouse gas emissions from automobiles and trucks. According to the EPA, greenhouse gases were not pollutants as defined by the Clean Air Act. In a 5 to 4 decision, the Court found just the opposite: that such gases were pollutants under the law and that the EPA had a responsibility to regulate them unless it could show a scientific basis for refuting their contribution to global warming. The majority opinion was written by Stevens, who was joined by Bader Ginsburg, Breyer, Anthony Kennedy, and David Souter. Chief Justice Roberts wrote the dissent and was joined by Alito, Scalia, and Thomas who argued against the decision on narrow legal grounds. Roberts wrote that the state of Massachusetts and other plaintiffs (a broad coalition of states, cities, and environmental groups) lacked standing in the case. Since the plaintiffs lacked standing, Roberts declared, the courts had no business intervening. Stevens countered the legal argument regarding standing by noting that the original plaintiff, the state of Massachusetts, clearly met the three criteria required, including the requirement to show the risk of injury-in this case, rising sea levels that threaten its coast.

In a number of decisions following the confirmations of Alito and Roberts to the Court, Justice Kennedy appeared to emerge as the Court’s swing vote, a role previously played by Justice O’Connor. Kennedy proved to be pivotal in deciding a number of cases, aligning himself either with the Court’s conservative bloc-made up of Alito, Roberts, Scalia, and Thomas-or its liberal or moderate wing, made up of Bader Ginsburg, Breyer, Stevens, and Souter.

For many observers of the Court, Kennedy’s new role raised questions about whether the Court would continue to uphold one of its most controversial decisions, the 1973 Roe v. Wade ruling that legalized abortion in the United States for the first time. Those questions were partially answered in April 2007 when the Supreme Court upheld the federal Partial Birth Abortion Ban Act of 2003, which outlaws a medical procedure known as intact dilation and extraction. Previously, in a 2000 decision, Stenberg v. Carhart, the Court had struck down a similar law passed by the Nebraska legislature. Kennedy opposed the Court’s ruling in Stenberg v. Carhart, which was written by O’Connor, but in 2007 he suddenly found himself in the majority.

In Gonzales v. Planned Parenthood and Gonzales v. Carhart, the Court upheld for the first time since Roe a ban on an abortion procedure. In his majority opinion Kennedy argued that the decision actually followed precedent because the Court’s ruling in 2000 focused on the vagueness of the Nebraska law and its failure to address exceptions for safeguarding a woman’s health. These issues were addressed, Kennedy argued, in the congressional legislation of 2003 because its definition of partial birth abortion was more exact and it allowed for the procedure to be performed in the event of a threat to a pregnant woman’s life. Nevertheless, a stinging dissent by Bader Ginsburg argued that the majority opinion was openly “hostile” to the right to an abortion and disregarded previous precedent. Bader Ginsburg argued that there was a significant difference between an exemption for a woman’s health and an exemption to protect her life. Supporters of the right to an abortion warned that the Court’s ruling opened the way for a reversal of Roe v. Wade.” (1)

Roberts Court Decisions

This is a list, by date, of substantial decisions decided by the United States Supreme Court during the tenure of Chief Justice John Roberts:

Years 2005-2006

  • Hamdan v. Rumsfeld: The court rejected the Bush administration’s plan to try Guantanamo detainees by military commissions. Vote: (5 to 3) Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissenters: Scalia, Thomas, Alito. Roberts recused because he had heard the case as a circuit court judge.
  • Kansas v. March: The court upheld a Kansas law that said the death penalty is imposed when the jury decides mitigating and aggravating evidence is of equal value. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Gonzales v. Oregon: Before Alito joined the court, it ruled former attorney general John Ashcroft exceeded his authority in threatening to discipline doctors who followed Oregon’s assisted suicide law. Vote: (6 to 3) Majority: Stevens, O’Connor; Kennedy, Souter, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Thomas.
  • Rapanos v. U.S: The court failed to find five votes but the outcome allowed federal government to continue to enforce part of the Clean Water Act. Vote: (4 to 1 to 4) Kennedy in the middle between Roberts, Scalia, Thomas and Alito on one side, and Stevens, Souter, Ginsburg and Breyer on the other.
  • Rumsfeld v. Forum for Academic and Institutional Rights: The court upheld a law that withheld federal funds from universities that do not allow military recruiters the same access as other employers. Vote: (8 to 0) Alito did not take part.

Years 2006-2007

  • Parents Involved in Community Schools v. Seattle, Meredith v. Jefferson County Board of Education: The court ruled school assignment plans in Seattle and Louisville unconstitutional because they made decisions based on an individual’s race. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Gonzales v. Carhart: The court upheld the federal Partial-Birth Abortion Ban Act, approving for the first time a prohibition of a specific abortion procedure. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Ledbetter v. Goodyear Tire: Ruled that a female manager had waited too long to file her complaint that the company had paid her less than male co-workers. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Federal Election Commission v. Wisconsin Right to Life: The court loosened the restrictions on campaign advertising by unions and corporations, weakening the 2002 McCain-Feingold campaign finance law. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Massachusetts v. EPA: The court sided with environmentalists and rebuked the Environmental Protection Agency for declining to regulate greenhouse gasses. Vote: (5 to 4) Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Thomas, Alito.
  • Morse v. Frederick: The court ruled against a high school student who unfurled a “Bong Hits 4 Jesus” banner at a school event, and said school officials may punish speech that appears to advocate illegal drug use. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

Years 2007-2008

  • District of Columbia v. Heller: The court ruled for the first time that the Second Amendent provides an individual right of gun ownership, unrelated to militia service. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Boumediene v. Bush: The court ruled Guantanamo detainees have a right to seek their release in federal court. Vote: (5 to 4) Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Thomas, Alito.
  • Kennedy v. Louisiana: The court said the death penalty is reserved for murder and crimes against the state, and cannot be imposed on someone who rapes a child. Vote: (5 to 4) Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Thomas, Alito.
  • Baze v. Rees: The court ruled Kentucky’s method of lethal injection, similar to that used in most states, does not violate prohibition against cruel and unusual punishment. Vote: (7 to 2) Majority: Roberts, Stevens, Scalia, Kennedy, Thomas, Breyer, Alito. Dissenters: Souter, Ginsburg.
  • Crawford v. Marion County Election Board: The court ruled Indiana’s requirement that voters show a photo id does not violate the Constitution. Vote: (6 to 3) Majority: Roberts, Stevens, Scalia, Kennedy, Thomas, Alito. Dissenters: Souter, Ginsburg, Breyer.

Years 2008-2009

  • Ricci v. DeStefano: The court restricted how far employers may go in considering race in hiring and promotion, and that the city of New Haven was wrong to throw out the results of a test on which minorities performed poorly. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • District Attorney’s Office for Third Judicial District v. Osborne: The court said prisoners do not have a constitutional right to DNA testing. Vote: (5 to 4) Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.
  • Caperton v. A.T. Massey Coal: The court said excessive campaign contributions can create an unconstitutional threat to a fair trial. Vote: (5 to 4) Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Thomas, Alito.
  • Wyeth v. Levine: The court said drugmakers could not rely on federal regulation to protect them from suits brought under state consumer laws. Vote: (6 to 3) Majority: Stevens, Kennedy, Souter, Thomas, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Alito.
  • Altria Group Inc. v. Good: The court said federal laws regarding cigarette labeling do not prohibit suits against tobacco companies under state anti-fraud laws. Vote: (5 to 4) Majority: Stevens, Kennedy, Souter, Ginsburg, Breyer. Dissenters: Roberts, Scalia, Thomas, Alito

Years 2009-2010

  • McDonald v. Chicago: The court said the Second Amendment protections on gun ownership apply to gun control laws passed by state and local governments. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Ginsburg, Breyer, Sotomayor
  • Skilling v. United States: The court limited a federal law making it a crime to deprive one’s employer of the “intangible right to honest services” to bribes and kickbacks. The dissenters would have struck the law entirely. Vote: (6 to 3) Majority: Roberts, Stevens, Ginsburg, Breyer, Alito, Sotomayor. Dissenters: Scalia, Kennedy, Thomas.
  • Holder v. Humanitarian Law Project: The court said the First Amendment does not protect humanitarian groups who advise foreign terrorist organizations, even about legal activities or peaceful settlement of disputes. Vote: (6 to 3) Majority: Roberts, Stevens, Scalia, Kennedy, Thomas, Alito. Dissenters: Ginsburg, Breyer, Sotomayor.
  • Graham v. Florida: The court ruled juveniles could not be sentened to life in prison without the possibility of parole for any crime short of homicide. Vote: (5 to 4) Majority: Stevens, Kennedy, Ginsburg, Breyer, Sotomayor. Dissenters: Roberts, Scalia, Thomas, Alito.
  • Citizens United v. Federal Election Commission: The court agreed corporations and union could make unlimited independent expenditures in campaigns, saying restrictions violated free speech. Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, Alito. Dissenters: Stevens, Ginsburg, Breyer, Sotomayor.
  • United States v. Stevens: The court said a federal law intended to forbid the sale of depictions of violence against animals was too broad and violated fee speech. Vote: (8 to 1) Majority: Roberts, Stevens, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor. Dissenter: Alito.

Sixth Term

One pitted the First Amendment rights claimed by a group of Christian fundamentalist protestors against the privacy claims of the family at a soldier’s funeral. In a second case, the justices ruled on California’s authority to shield minors from extremely violent video games. The high court also made life more difficult for lawyers who are in the business of filing class actions.

But perhaps the most striking thing about the term was how often the Supreme Court reversed the Ninth Circuit. In fact, of the 26 Ninth Circuit decisions that the high court reviewed this past term, 19 were either reversed or vacated – and many of those rebuffs were sharply worded. When it comes to criminal rights cases, the conservative judges on the Supreme Court don’t like the way the Ninth Circuit has second-guessed the state courts.

Probusiness in the Roberts Court

UC Irvine law school Dean Erwin Chemerinsky said that the Roberts Court slants probusiness, and he cites a number of decisions that do in fact make it somewhat more difficult to sue corporations, especially the makers of generic drugs. But the U.S. Chamber of Commerce is hardly running the place. Upwards of 50 percent of what can be called business cases were unanimous, and even when the Court was closely divided, the usual conservatives weren’t invariably writing for the majority. These cases are mostly statutory in nature and thus fully vulnerable to congressional reversal, as Justice Ginsburg invited by reading her dissents aloud. Hypersensitive Court watchers got all atwitter over Justice Alito’s responding eye rolls, but any objective observer would find their criticism to be as hyperbolic as labeling the term a blockbuster.

A blockbuster term it was not, yet the fidelity of the Court to the rule of law was consistent and praiseworthy. The Roberts Court answered legal complaint by adhering closely to its judicial vocation. When other nations try to persuade an anxious world that the way to advance democracy is by military intervention, it is a notable and wise achievement for the high bench to reaffirm how law already decided invites “we, the people” to discern the full scope of human equality.

Sixth Term of the Roberts Court

By Barry P. McDonald. He is a professor of constitutional law at Pepperdine University School of Law, served as a law clerk to the late Chief Justice William H. Rehnquist.

In the sixth term of the Roberts Court the conservative bloc of justices, with the help of the slightly more moderate Justice Anthony Kennedy, consolidated its control over ideologically charged cases. In her second year Justice Sonia Sotomayor quickly found her voice, while Justice Elena Kagan exuded confidence in her first.

Division Persists

Two trends seem to be emerging on the Roberts Court: a high degree of unity on its many cases involving narrow questions of statutory interpretation (more than half of its 84 decisions last term), with increasing polarization on broader statutory or constitutional issues. In the latter type of case the Court continued to divide sharply along ideological lines, and the four-justice conservative bloc secured a majority with Kennedy’s aid more frequently than it has in the past (roughly three times more often than he allied with the liberals).

The conservative bloc gained substantial ground in the areas of freedom of religion and freedom of speech. In Arizona Christian School Tuition Organization v. Winn (131 S. Ct. at 1462 (2011)), it substantially narrowed the basis on which a taxpayer can complain about government spending for religious purposes. In a ruling sure to puzzle many accountants, the majority said that spending of tax revenues by the government itself to promote religion can be challenged in court. By contrast, if the government gives a tax credit that the recipients then direct to religious activities, no challenge is possible. Writing her first major dissent for the liberal bloc, the Court’s newest (and youngest) member complained that the majority “offers a roadmap … to any government that wishes to insulate its financing of religious activity from legal challenge.” (131 S. Ct. 1436 (Kagan, J., dissenting).)

The conservative bloc also maintained its stubborn resistance to reforms designed to counter the influence of private money in government. It struck down an Arizona law that provided political candidates who accepted public financing with funds to match the money spent by well-heeled candidates and partisan advocacy groups (Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011)). The majority saw the glass as half empty versus half full-the law would decrease campaign debate because wealthier candidates would muzzle themselves out of fear matching funds would go to their opponents for an answer. Again writing for the dissenters, Kagan said such a view would hold sway only “in a world gone topsy-turvy.” (131 S. Ct. at 2833 (Kagan, J., dissenting).)

The conservatives also gained the upper hand in two major decisions likely to dampen the plaintiff bar’s enthusiasm for suing major corporations. In one, the majority held that hundreds of thousands of sex discrimination claims asserted by Wal-Mart’s female employees had too little in common to permit a class action against the company (Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011)), and in the other it ruled that federal arbitration law prevents states from voiding consumer contract provisions that prohibit class proceedings-effectively preventing consumers from using their collective power to arbitrate complaints against large corporations (AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)).

All this is not to say the liberal bloc came away from the 2010 term empty-handed. Justice Kennedy allied with Kagan, Sotomayor, and Justices Stephen Breyer and Ruth Bader Ginsburg in two major decisions. In an important case from California, the liberals affirmed the ruling of a lower court ordering the release of state prisoners in the event that deficient medical care created by prison overcrowding is not rectified (Brown v. Plata, 131 S. Ct. 1910 (2011)). The ruling incited conservative Justice Antonin Scalia to accuse the majority of upholding “perhaps the most radical injunction … in our nation’s history.” (131 S. Ct. at 1950 (Scalia, J., dissenting).) Moreover, in J.D.B. v. North Carolina (131 S. Ct. 2394 (2011)), the liberals held that in some situations minors being questioned by police may be entitled to Miranda warnings against self-incrimination when an adult would not be.

Big Business

In addition to the class action cases, the Court decided a slew of other important disputes affecting business interests (this in itself may speak to the disparate ability of highly paid corporate counsel to get the Court to grant cert). Among key business victories was a ruling that the Clean Air Act displaces federal common law nuisance claims against power companies for greenhouse gas emissions (American Electric Power Co. Inc. v. Connecticut, 131 S. Ct. 2527 (2011)), and the dismissal of a securities fraud claim against a mutual fund company because it did not technically own the fund in question (Janus Capital Group Inc. v. First Derivative Traders, 131 S. Ct. 2296 (2011)). But not every case came up roses. A key business defeat was the Court’s holding that federal immigration law does not preempt an Arizona statute regulating the hiring of illegal aliens (Chamber of Commerce of U.S. v. Whiting, 131 S. Ct. 1968 (2011)).

Extreme Freedom of Speech?

Despite the framers’ very public purpose of protecting the political dissent and debate necessary for healthy self-governance, the Roberts Court seems determined to continue the modern trend of viewing the First Amendment as an individual shield (corporations included, thank you very much) against any sort of common-sense regulation of their expressive activities. Besides saying that the amendment protects deep-pocketed political candidates against the horror of having matching funds provided to their less-well-heeled opponents (see above), the Court valiantly stood up for the rights of video game companies to sell extreme gore to minors without their parents’ consent (Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729 (2011)); of protesters to exploit soldiers’ private funerals to attract media attention (Snyder v. Phelps, 131 S. Ct. 1207 (2011)); and of pharmacies to sell data on doctors’ prescribing practices to drug makers to entice the physicians to prescribe their drugs (Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011)).

Civil Rights or Wrongs?

Those who believe in strong civil rights enforcement will not be pleased with the Court’s ruling in Ashcroft v. Al-Kidd (131 S. Ct. 2074 (2011)), in which the conservative majority unnecessarily held as irrelevant government officials’ pretextual use of a witness-detainment law to imprison suspected terrorists – as long as those held could reasonably be regarded as witnesses (unnecessary because the Court went on to hold that former Attorney General John Ashcroft enjoyed immunity for such acts in any event). Given these rulings, one may well ask: What happened to the judicial minimalism espoused by Chief Justice John Roberts? Even less endearing is the conservative bloc’s ruling that the New Orleans district attorney’s office was not liable for intentionally withholding evidence that contributed to the murder conviction of an innocent man who spent 14 years on death row (Connick v. Thompson, 131 S. Ct. 1350 (2011)).

The Ninth Circuit

If the Court’s 2010 term is any indication, the improvement in the Ninth Circuit’s reversal rate for 2009 appears to have been an aberration. The rate resumed its recent trend of being higher than that for most other courts of appeals. Many of this term’s reversals were in the area of criminal justice, where the Supremes expressed pointed frustration at the Ninth Circuit’s failure to defer to California court rulings rejecting criminal rights claims.

In one notable opinion Justice Kennedy, himself a Californian who also serves as the Ninth Circuit’s supervising justice, chided that court for displaying “judicial disregard for … sound and established principles” in ordering the release of a prisoner from state custody based on an alleged violation of his constitutional rights (Harrington v. Richter, 131 S. Ct. 770, 780 (2011)). And in an unusually frank display of frustration, in a similar case the Court reversed, tartly asserting that the Ninth Circuit’s “decision is as inexplicable as it is unexplained.” (Felkner v. Jackson, 131 S. Ct. 1305, 1307 (2011).) This does not sound like the basis for a rapprochement between these courts – something the previous term hinted might be in the offing.


Notes and References

See Also

  • Boumediene V. Bush
  • John Roberts
  • Chief Justice Rehnquist, Scalia
  • Coleman V. Court Of Appeals Of Maryland
  • Davis V. Federal Election Commission
  • Federal Election Commission V. Wisconsin Right To Life
  • Justices Appointment
  • Citizens United V. FEC
  • United States V. National Treasury Employees Union



, ,