The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.