Supreme Court

Welcome to the New Roberts Court

How different will the newly constituted Court be from what has come before?

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Today the Supreme Court will hear oral argument for the first time since the confirmation of Justice Amy Coney Barrett. In some respects, this may represent the start of the new Roberts Court, as distinguished from the early Roberts Court—what many called the "Kennedy Court" because of Justice Kennedy's pivotal and decisive role in the Court's jurisprudence during that period.

The Kennedy Court ended when Justice Anthony Kennedy was replaced by Justice Brett Kavanaugh. Yet even then the Court was closely divided, regularly producing 5-4 splits in which the justices did not align purely along ideological lines. Although the Chief Jsutice was seen as the median justice after Kennedy's departure, every conservative justice joined the courts liberals to produce a majority at least once during the brief period between the confirmations of Justice Kavanaugh and Justice Barrett. Now it will take two conservative justices to produce a majority with the Court's liberal wing. This will almost certainly result in a shift to the Right, but how much and in what manner are yet to be determined.

As a wise sage once said, "It's tough to make predictions, especially about the future." We can, however, say something about the past, and use recent experience as a benchmark against which to evaluate what comes ahead. With this in mind, I think it's useful to clarify the record of the Roberts Court to date, so that we may accurately identify how the New Roberts Court's behavior departs from recent trends, if it does.

While some commentators have described the Roberts Court as ultra-conservative, radical, or reactionary, it has, in fact, been a stare decisis court, and arguably the most restrained in decades. Up until now, the Court under Chief Justice Roberts has been more deferential to Congress and more respectful of precedent than any other post-WWII court.

As I detailed in this post from 2018, the Roberts Court overturns prior Court precedents at a significantly lower rate than did the Warren, Burger, and Rehnquist Courts, a pattern that continued up through this past term. There are important caveats to be made, including that not all precedents are created equal, and overtunring some is more important than overturning others. Still, the overall rate over a significant period of time is notable. If the Court begins to upend precedents at a significant rate, this will be a departure from how the Court has behaved since 2005.

Similarly, the Roberts Court has invalidated federal statutes, in whole or in part, at a lower rate than did the Warren, Burger, and Rehnquist Courts. Here the best reference is my co-blogger Keith Whittington's award-winning book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present. Here is what he finds:

Cases per annum invalidating federal statutes:

  • Warren Court 2.57
  • Burger Court 3.17
  • Rehnquist Court 3.63
  • Roberts Court 2.08

(See Table 7-1 at p. 238)

Maybe this is too many federal statutes to invalidate. Maybe it is too few. Maybe it depends on which laws are up for review. The point here is that—contrary to the claims of some commentators—the Roberts Court has given Congress a wider berth than has its predecessors and has been more reluctant to hold federal statutes unconstitutional than have prior courts. As with precedents, if the Court begins to invalidate federal laws at a more rapid rate, this will be a departure from what we have seen from the Roberts Court thus far.

It is important to underscore that the account I provide here is purely descriptive. This is what the Roberts Court has and has not done. There are some who think the Court should be systematically deferential and oriented  toward maintaining the status quo, but most have preferences about the underlying substance of the relevant decisions. Whether the Court was correct to declare a given statute unconstitutional or overturn a given precedent depends upon the particulars of the given case—and is a question upon which I suspect many readers and I would disagree (as will readers among themselves). So, too, with the decisions the Court will make in the years ahead.

What will the New Roberts Court bring? We will have to see. I suspect the newly constituted Court will conform to some expectations and confound others. It will almost certainly be more "conservative," but what that means in particular cases or subject areas may well surprise. Much as the early Roberts Court was more restrained and status quo oriented than many might have suspected, the New Roberts Court may well turn out differently than many expect.

NEXT: How do you pronounce the "v." in a case name: like the letter "V" or like "versus"?

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  1. The real number to compare should be the ratio (# statutes overruled)/(# statutes total).

    I don’t have the numbers for that denominator, but I strongly suspect that not only would the Roberts Court come in badly dead last on that measure, but also the Burger and Rehnquist courts would not come out nearly so well.

    FWIW

    1. Agreed that it should be a ratio, but you’ve got the wrong denominator, which should be (# of cases heard). The supreme court’s case load has gone down drastically starting in about 1980. This article’s a bit old but it’s got a handy chart:

      https://fivethirtyeight.com/features/the-supreme-courts-caseload-is-on-track-to-be-the-lightest-in-70-years/#:~:text=The%20long%2C%20downward%20trend%20in,looks%20in%20danger%20of%20falling.

      Also, it bears noting that the Roberts Court has sat alongside congresses that are considerably more conservative than those that accompanied its predecessors.

      1. but you’ve got the wrong denominator, which should be (# of cases heard)

        It should be number of cases where overturning a federal statute is a possible outcome. A fair number of cases involve state law or, especially recently, executive actions.

        1. A fair point. I think we’re just highlighting the silliness of trying to quantify what must be a qualitative analysis.

          To call the Roberts court the “stare decisis court” after, e.g., Heller, Citizens United, Shelby County, Janus, and the spate of elections cases in the last week (and those maybe still to come) is disingenuous.

          1. Don’t sell Roberts short on the election cases. Until last week he had never voted for a Democratic Party friendly election-related case. Looks like the Republican Senate has rocked Roberts back on his heels, and forced him to try to save the Court’s legitimacy, even if means voting against Republicans.

      2. This assumes that the number of cases heard goes down in proportion to the number of unConstitutional statutes passed by Congress (+ the number of unConstitutional regulations from the bureaucracy?).

        It is my considered opinion that the number of unConstitutional statutes has gone UP over time, not down.

  2. The point here is that—contrary to the claims of some commentators—the Roberts Court has given Congress a wider berth than has its predecessors and has been more reluctant to hold federal statutes unconstitutional than have prior courts.

    This may or may not be true, but the cited figures are not close to being evidence for the claim. How many opportunities did the various Courts have to overturn federal statutes? Is the difference in the “batting average” significant? etc.

    1. The various courts have complete discretion as to the number of opportunities they have to overturn federal statutes, so that’s not a meaningful factor.

  3. FantasyEOTUS entries (election predictions, with gift cards for prizes) are due today at noon eastern, and predictions must be posted here.

    1. test

  4. every conservative justice joined the courts liberals to produce a majority at least once during the brief period between the confirmations of Justice Kavanaugh and Justice Barrett

    Wait, when did Thomas do that? I recall Alito did it in Gundy, Roberts, Kavanaugh, and Gorsuch all have, but I dont recall Thomas doing it.

  5. I don’t think the Court is really going to operate that much differently. Maybe we will get a few less “kick the can down the road” half-assed decisions, but I really don’t think that this is going to be a legal/cultural revolution.

    My guess, is that assuming the proper cases make it up to the court, we will see:
    1. Some type of 2nd Amendment right to carry a firearm outside of your house. Actual mileage will vary depending on if the Court ever puts teeth behind that right.
    2. An end to race based affirmative action. It is a long time coming and Robert’s “death by 1000 cuts” hasn’t resulted in the end he would like it to see.
    3. Maybe, just maybe, a strong repudiation of Roe v. Wade returning the question (or most of it) to the states.

  6. Part of me is snickering in anticipcation of Roberts’ oh-so-careful pandering to not upsetting the apple cart all coming to naught if he ends up on the losing liberal side more often.

    1. If Roberts votes with the Ds, he will do it to lose on purpose, for show. He is rightly concerned (terrified?) that Republicans have made court packing look like a moderate thing to do. Too many 6-3 votes on controversial cases just make that look worse.

      What you will not likely see is Roberts handing the Ds any 5-4 majorities. If any other R goes over and votes with the Ds, Roberts will take that opportunity to rebuild his credibility and vote with the Rs. Republicans will lose few if any decisions on account of Roberts. He is a reliable pro-corporate partisan. Just a bit wiser than the others about where things stand, and how to maximize the political benefits the Court can deliver long-term to the Rs.

      1. ACB is NOT court packing. Hillary lost in 2016. Silence is not violence. Affirmative action is discrimination.

        You only look silly trying to redefine words.

        1. I think Stephen Lathrop is trying to say is that what the Republicans have done is so bad that it makes court packing seem like an appropriately moderate and proportional response.

  7. I recall a few years ago reporting on the record number of unanimous decisions.

    Has that continued? I haven’t seen anything lately.

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