Chief Justice John Roberts

  • March 27, 2012
    Guest Post

    By Adam Winkler, professor of law, UCLA School of Law. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.


    The two days of oral argument into President Obama's health care reform law have been notable for their lack of surprises.

    On the first day, the Court considered whether the Anti-Injunction Act barred the lawsuits challenging the individual mandate. Although this was always considered the sleeper issue of the case, there are few stronger trends in the Supreme Court these days than judicial assertiveness. A Court that could decide a disputed presidential election in Bush v. Gore; unleash Citizens United; and repeatedly wade into presidential war powers should have little hesitancy reaching out to decide the fate of the Affordable Care Act. So when the Justices breezily ignored the plain language of the AIA, it was predictable. The Court wants to decide all of the major issues in American politics, including this.

    On day two, the Court looked at the individual mandate. One thing that always seemed beyond the pale to me was the idea that, when it came to the mandate, the votes of Justice Scalia and Chief Justice Roberts were in play. Just because Scalia voted to uphold the federal drug laws in Gonzalez v. Raich should never have fooled anyone into thinking he'd vote to uphold the mandate, and his aggressive questioning of the government on the mandate indicated he's likely to vote to strike it down. The same can be said for Roberts, who for seven years now has been confounding the expectations of those who believed he'd really push for unanimous, narrow rulings that avoided constitutional questions, as he promised in his confirmation hearings. His voting record is strongly conservative and his desire to protect the institutional legitimacy of the Court is remarkable mainly for its lack of manifestation.

  • January 11, 2012

    by Jeremy Leaming

    Daniel Mach, director of ACLU’s Program on Freedom of Religion and Belief, wrote for ACSblog last summer about religious organizations' ability to shield themselves from anti-discrimination laws, citing their First Amendment right to the free exercise of religion. He asked whether religious institutions have a “categorical free pass to discriminate against certain people, regardless of the reason.”

    Today, in what The New York Times’ Adam Liptak suggested may be the U.S. Supreme Court’s “most significant religious liberty decision in two decades,” sided with a Michigan church’s effort to avoid defending itself against an employment discrimination charge lodged by a teacher it had fired after she took sick leave, and for informing the church she planned to persue an employment discrimination claim against the church.

    In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a unanimous Court led by Chief Justice John G. Roberts Jr. found, in this instance, that a so-called “ministerial exception,” provided the Redford, Mich. church protection from Cheryl Perich’s employment discrimination claim. (When Perich took sick leave to treat a disability, the church eventually hired a replacement teacher. After Perich presented church officials with a letter from her physician that she was cleared to start work again, church officials urged her to resign and except payment of a portion of her health insurance premiums. When she refused to do so, church officials informed her they were considering letting her go, and she responded by warning them she planned to lodge an employment discrimination complaint.)

    Since the passage of the Civil Rights of 1964 and other employment discrimination laws, Roberts explained that the federal appeals courts “have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.”

  • January 10, 2012

    by Jeremy Leaming

    During yesterday’s oral argument before the U.S. Supreme Court over legal challenges to recently redrawn electoral maps, the justices, according to Adam Liptak, appeared “frustrated” as they grappled with how to resolve the matter, which could have a major impact on which party controls the House of Representatives.

    “The justices,” Liptak, The New York Times Supreme Court correspondent, wrote, “in essence must choose between two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.”

    Prompted by the 2010 census – which reported that Texas gained more than 4 million new residents, most of them Latinos – the Republican-controlled Texas Legislature created new electoral maps that public interest groups criticized as failing to reflect minority population growth. Texas, because of its history of discrimination against minority voters, is one of the states that must get “preclearance,” pursuant to Section 5 of the Voting Rights Act, from the Department of Justice or a federal court before any electoral changes can take effect. While Texas officials sought preclearance from a federal court in Washington, a federal court in San Antonio created its own electoral maps as a substitute, which state officials challenged. That three-judge court in San Antonio found that the Legislature’s redistricting sharply reduced the number of minority voting opportunities.

    During oral argument, Justice Sonia Sotomayor suggested the Texas Legislature’s maps could not be used in the state’s primaries, because the maps had not been approved pursuant to Section 5 of the Voting Rights Act.

    “I don’t see how we can give deference to an enacted new map,” she said, “if Section 5 says don’t give it effect until it’s been precleared.”

  • January 6, 2012

    With the Senate still out on recess, no action has been taken by the body to confirm the 37 pending federal bench nominees. In December, Sen. Mitch McConnell (R-Ky.) blocked more than 50 pending nominations, including 21 who are ripe for an immediate Senate vote.

    Sen. Robert Menendez (D-N.J.) is reportedly holding up the nomination of Magistrate Judge Patty Shwartz to the U.S. Court of Appeals for the Third Circuit by failing to return his blue slip, a senatorial courtesy device for home-state senators, according to The Star-Ledger. In a statement after the news broke, the senator said, “In my opinion, Judge Shwartz did not adequately demonstrate the breadth of knowledge of constitutional law and pivotal Supreme Court decisions such as Citizens United that we should expect from a United States Circuit Court judge.”

    The Daily Report reports that Atlanta litigator Jill A. Pryor is being considered for a seat on the U.S. Court of Appeals for the Eleventh Circuit; a local country superior court judge informed the newspaper that a representative of the committee that rates White House judicial nominees had called him regarding Pryor. The seat remains vacant since Judge Stanley F. Birch Jr. retired last August.

    Chief Justice John Roberts issued his year-end report without mention of the judicial vacancy crisis plaguing the bench. In his response, Sen. Patrick Leahy (D-Vt.), lamented:

    I remain concerned about the impact sustained judicial vacancies are having on our courts around the country. This is arguably the greatest threat to the trial and appellate courts of the federal judiciary. For the last three years, dozens of judicial nominations have been delayed in the Senate. In fact, nearly 20 judicial nominations pending and stalled before the Senate should be confirmed when the body resumes session in January. This would lower the current number of vacancies by nearly 25 percent. The Senate has a constitutional responsibility to provide its advice and consent in the confirmation of federal judges. Only then can the federal judiciary fulfill its own constitutional role.

  • August 19, 2011

    by Nicole Flatow

    Although many prominent legal leaders, editorial boards and commentators have long lamented the high number of judicial vacancies plaguing our courts, it is not easy for those removed from the process to understand how judicial nominations work, and what impact these empty seats  have on our justice system.

    The White House has put together a new infographic that paints a powerful picture of the nature of Senate obstruction of judicial nominees, and highlights Obama’s efforts to diversify our federal courts.

    Here are a few key facts included in the infographic:

    • Obama’s nominees are highly qualified: All 155 of President Obama’s nominees have been rated qualified or well-qualified by the American Bar Association, yet only 97 of the 155 have been confirmed.
    • Obama’s judicial nominees have waited more than five times longer for a Senate confirmation vote than Bush’s nominees: President George W. Bush’s district court nominees waited an average of 20 days for a Senate confirmation vote following their approval by the Senate Judiciary Committee, which vets judicial nominees. President Obama’s district court nominees have waited an average of 103 days, and his circuit court nominees have waited an average of 151 days. Some of President Obama’s nominees have waited as long as 21 months for the Senate to schedule an up-or-down vote.
    • While nominees are held up, justice is delayed: In 16 percent of civil cases before the federal courts in 2010, individuals had to wait more than three years for a resolution. In 2006, only six percent of cases took that long. (And in the districts containing some of the 37 vacancies deemed judicial emergencies, the waits can be much longer.)