Chief Justice John Roberts

  • March 7, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In my earlier guest blog on Shelby County, AL v. Holder, I suggested that the conservative justices of the Supreme Court would be tempted to offer a post-racialist narrative concerning the pre-clearance provisions of the Voting Rights Act. 

    The justices did not disappoint. Justice Anthony Kennedy asked whether Alabama should remain “under the trusteeship of the United States government.” Chief Justice John Roberts asked whether “the citizens in the South are more racist than the citizens in the North.” Both of these comments implicitly ask whether the long history of race has been atoned for once and for all.

    And then there was Justice Antonin Scalia’s statement on the Voting Rights Act. In explaining the almost unanimous consensus for the 2006 reauthorization of Section 5, Scalia said:

    Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

    On one level, this quote fits the post-racial narrative. Yet Justice Scalia intended a deeper message by invoking the rhetoric of “racial entitlement.” That message is the ahistorical belief that race-conscious analysis is immoral and leads to corrupt outcomes. Establishing this concept is part of a larger post-racial agenda (as we have seen already in the affirmative action debates), and the Voting Rights Act is the latest battleground. Yet, if applied to the right to vote, it will fly in the face of the plain text of the Constitution and our democratic consensus to insure equality in voting.

  • October 8, 2012
    Guest Post

    By Mark Ladov, is counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.


    The nation will be paying close attention to the Supreme Court’s review of the University of Texas’s admissions policies when it hears oral argument in Fisher v. University of Texas at Austin (UT) on October 10.  Most of the conversation will focus, as it should, on what the Court has to say about race, education and opportunity in the twenty-first century.  But Fisher is also important for what it will teach us about the Roberts Court’s faith in the rule of law and the principle of stare decisis (or the binding effect of past precedent).

    UT’s admissions program considers the race of its applicants, but only alongside a variety of factors (including class, family history, work experience and individual talents) that shape a student’s identity and potential.  As Joshua Civin explained well in this blog, the alternative so-called “race-neutral” approach would actually demean students’ individuality, by forcing them to censor references to race and culture out of their college applications.  

    It is well established that UT’s admissions policies are good for our multi-racial democracy, and wholly consistent with the Constitution’s equal protection clause.  That is not just the opinion of over 70 amici briefs siding with the university.  It is also the view of the Supreme Court, which addressed these exact issues less than a decade ago in Grutter v. Bollinger

    In Grutter, the Court upheld the University of Michigan Law School’s similarly holistic admissions policy.  Justice O’Connor’s opinion enthusiastically affirmed principles first announced by Justice Powell in Regents of Univ. of Cal. v. Bakke(1978).  She explained the importance of diversity for giving all students the best education possible, and for training a diverse set of leaders for America’s future.  

    UT has followed these instructions to the letter.  The Fifth Circuit found exactly that when upholding the constitutionality of its admissions program.  As my colleague Sidney Rosdeitcher points out, in a thorough review of the facts and law of this case, “it would be an assault on the principles underlying stare decisis” for the Supreme Court to reach beyond the issues raised in this case to overturn or limit Grutter.

  • September 14, 2012
    Guest Post

    By Kent Greenfield, Professor and Law Fund Research Scholar, Boston College Law School. Follow Professor Greenfield @kentgreenfield1. This post is part of an ACSblog Constitution Day Symposium.


    Every September, the American Constitution Society celebrates Constitution Day, as well it should. ACS isn’t alone, of course. Schools around the country, from kindergartens to universities, also commemorate the day in various ways.

    And every year at this time I play the constitutional curmudgeon, warning that Constitution Day may be unconstitutional. You can read previous iterations of my arguments in this blog here and in The New York Times here.

    The basic argument is that Constitution Day is unconstitutional because, as a federal mandate on any public or private educational institution receiving federal funds, it amounts to coerced speech under the First Amendment.  If a kindergarten or university were to refuse to alter their curriculum to cover the topic, they would stand to lose all federal funds.  That sounds to me like a violation of the unconstitutional conditions doctrine.  As Justice Jackson famously said for the Court in West Virginia v Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

    Because I’m a law professor, I can alter the hypothetical to make my point. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional?

    Of course the argument is not simple, mostly because the unconstitutional conditions doctrine is a hash. Sometimes the Court allows conditions — see Rumsfeld v FAIR or Rust v Sullivan — and sometimes it doesn’t — see Speiser v Randall or Legal Services Corp. v Velazquez.

    I will say, however, that my argument is stronger this year. Why? Because of Chief Justice Roberts’s opinion in National Federation of Independent Business v Sebelius, the ACA case.

  • August 17, 2012

    by Nicole Flatow

    The “partisan intensity” surrounding the Senate confirmation process of judicial nominees “makes the judiciary look politicized when it is not” and “has to stop,” U.S. Supreme Court Justice Anthony Kennedy said during an address at the 2012 Ninth Circuit Judicial Conference in Maui.

    The remarks are the latest in a string of calls to end Senate obstruction of judicial nominees from judges and legal leaders, including Chief Justice John Roberts and Justice Ruth Bader Ginsburg. Justice Kennedy also questioned the functioning of the Senate confirmation process during the 2010 Ninth Circuit conference, saying, “It's important for the public to understand that the excellence of the federal judiciary is at risk.” Two years later, Kennedy is expressing even greater alarm.

    “The Constitution requires Senate confirmation,” Kennedy said this week. “The Senate is a political entity and will act in a political way and that’s quite proper. … On the other hand, there is a difference in a political function and a partisan function, and the current climate is one in which highly qualified eminent practitioners of the law simply do not want to subject themselves to this process.”

  • July 11, 2012
    Guest Post

    By Erin Ryan, a Fulbright Scholar in China. She is a professor of law at Lewis & Clark Law School, where she will return this summer. Ryan is also author of Federalism and the Tug of War Within. Read her previous guest post “Health Care Reform and Federalism’s Tug of War Within.”


    In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the various arguments about how the commerce and tax powers do or don’t vindicate the individual mandate. But the most immediately significant portion of the ruling –

    and one with far more significance for most actual governance – is the part of the decision limiting the federal spending power that authorizes Medicaid. It is the first time the Court has ever struck down congressional decision-making on this ground, and it has important implications for the way that many state-federal regulatory partnerships work.

    The Spending Clause authorizes Congress to spend money for the general welfare. Congress can fund programs advancing constitutionally specified federal responsibilities (like post offices), and it can also fund state programs regulating beyond specifically delegated federal authority (like education).  Sometimes, Congress just funds state programs that it likes. But it can also offer money conditionally – say, to any state willing to adopt a particular rule or program that Congress wants. In these examples, Congress is effectively saying, “here is some money, but for use only with this great program we think you should have” (like health-insuring poor children).