U.S. Supreme Court

Chemerinsky: 10 lessons from Chief Justice Roberts' first 10 years

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Erwin Chemerinsky

Erwin Chemerinsky.

On Monday morning, October 5, the Supreme Court will begin its 11th term with John Roberts as Chief Justice. On Sept. 29, 2005, Roberts became the 17th Chief Justice of the United States. Here are 10 observations about the first decade of the Roberts Court.

1. The court is deciding many fewer cases than it used to. Last term, the court decided 66 cases after briefing and oral argument. The year before, it decided 68 and in the terms before that, it decided 73 and 65 cases. To put this in context, for much of the 20th century, the Supreme Court was averaging more than 200 cases a year, and as recently as the 1980s, the court was deciding more than 160 cases per year.

The smaller docket began when William Rehnquist was chief justice. The court decided 80 cases in the October 2004 term, Rehnquist’s last on the bench. When John Roberts was before the Senate Judiciary Committee for his confirmation hearings, he lamented the smaller docket and said that the court should decide at least 100 cases a year. Roberts became chief justice, and the docket promptly got smaller. The court has yet to reach 80 decisions in any of Roberts’ 10 terms as chief.

2. The Roberts Court is a pro-speech court, except when the institutional interests of the government are at stake. The most famous Roberts Court decision about speech has been Citizens United v. Federal Election Commission (2010), which held that corporations can spend unlimited amounts of money in election campaigns. Also, in many cases, the Roberts Court has ruled in favor of free speech, even when the expression is repugnant. In United States v. Stevens (2010), the Supreme Court declared unconstitutional a law that made it a federal crime for people to sell, distribute, or possess depictions of animal cruelty. In Snyder v. Phelps (2011), the Court, again 8-1, held that members of the Westboro Baptist Church could not be held liable for their highly offensive messages at funerals of those who died in military service.

But when the institutional interests of the government are involved, the court gives great deference to the government and little protection to speech. For example, in Garcetti v. Ceballos (2006), the Roberts Court held 5-4 that the First Amendment provides no protection for the speech of government employees on the job in the scope of their duties. In other words, a government employee who reports misconduct—as Richard Ceballos did—can be disciplined or even fired, and is entirely without recourse under the Constitution.

In Morse v. Frederick (2007), the court ruled that a student could be punished by a school for displaying a banner saying, “Bong Hits for Jesus” on a public sidewalk at a school event. The court denied First Amendment protection, even though the speech was not disruptive of school activities and unlikely to have any effect.

3. The Roberts Court has a minimalist view of the Establishment Clause of the First Amendment, but a more robust view of the protections of free exercise of religion. Not once in its first decade, did the Roberts Court find a government action to be an impermissible establishment of religion. Perhaps most notably, in Town of Greece v. Galloway (2014), the Court ruled 5-4 that it did not violate the First Amendment when for nearly a decade a town board invited almost exclusively Christian clergy members to deliver prayers before its sessions, even though the prayers were usually explicitly Christian in their content.

By contrast, in Burwell v. Hobby Lobby the court, again 5-4, ruled that it violated the Religious Freedom Restoration Act to require that closed corporations provide insurance coverage for contraceptives that violates the business owner’s religious beliefs. This is the first time that the Supreme Court held that secular corporations have religious freedom.

4. The Roberts Court has provided unprecedented protection for the rights of gun owners under the Second Amendment. From 1787 until 2008, the court said that the Second Amendment protects only a right to have firearms for militia service. But in District of Columbia v. Heller (2008), the court struck down a 35-year-old District of Columbia ordinance prohibiting private ownership or possession of handguns. The court said that the Second Amendment protects a right of people to have guns in their homes for the sake of security. In McDonald v. City of Chicago (2010), the Court ruled that this right is incorporated into the Fourteenth Amendment, and applies to state and local governments.

5. The Roberts Court has had a mixed record on criminal procedure in its most important cases, often ruling for the government, but sometimes for criminal defendants. This is especially evident as to the Fourth Amendment. For example, in Maryland v. King (2013), the Court held 5-4 that it does not offend the Fourth Amendment for the government to take DNA from those arrested for serious offenses to see whether it matches for other unsolved crimes. But in Riley v. California (2014), the court unanimously held that the police cannot look at the contents of a person’s cellphone when searching a person at the time of an arrest unless there is a warrant or exigent circumstances.

The Roberts Court, though, has weakened the protections of the exclusionary rule when there are police violations of the Fourth Amendment. For instance, in Herring v. United States (2009), the court concluded that the exclusionary rule applies only if there are intentional or reckless violations of the Fourth Amendment, but not for negligent or good faith violations of that provision by the police.

There is a similar mixed record with regard to the Eighth Amendment and the prohibition of cruel and unusual punishment. The Roberts Court, in Kennedy v. Louisiana (2008), ruled that it is unconstitutional to execute a person for the crime of child rape. It also held that it is cruel and unusual punishment to impose a sentence of life in prison without parole for a non-homicide crime committed by a juvenile in Graham v. Florida (2010), or to have a mandatory sentence of life without parole for a homicide crime by a juvenile in Miller v. Alabama (2012). But the Court has twice rejected challenges to the protocol for lethal injections in Baze v. Reese (2008), and in Glossip v. Gross (2015), and has frequently narrowed the availability of habeas corpus review in federal courts.

6. The court has favored the conservative position in its rulings on the Constitution and race. In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the court held that public school systems cannot use race as a factor in assigning students to achieve diversity unless they meet strict scrutiny. In Fisher v. University of Texas, Austin (2013), the court ruled that colleges and universities may use race as a factor in admissions decisions only if they can prove that there is no race-neutral way to achieve diversity. Fisher is back before the Supreme Court in the coming term to review the Fifth Circuit’s ruling that the University of Texas met this burden.

In Shelby County, Alabama v. Holder (2013), the court declared unconstitutional a key provision of the Voting Rights Act of 1965. It thus effectively invalidated the requirement that jurisdictions with a history of race discrimination in voting need to get preclearance from the attorney general before changing their election systems. This was the first time that the court declared unconstitutional a federal civil rights law dealing with race since the 19th century.

7. The Roberts Court’s most historic decisions include those recognizing a right to marriage equality for gays and lesbians. In United States v. Windsor (2013), the court declared unconstitutional Section 3 of the federal Defense of Marriage Act, which said that for purpose of federal law and federal benefits, marriage had to be between a man and a woman. In Obergefell v. Hodges (2015), the court declared unconstitutional state laws prohibiting same-sex marriage. Both were 5-4 decisions, with Justice Kennedy writing for the court.

8. The court has largely upheld the Patient Protection and Affordable Care Act. No decisions of the Roberts Court have received more attention, or have been more practically important, than its rulings about “Obamacare.” In National Federation of Independent Business v. Sebelius (2012), the Court upheld the individual mandate of the Affordable Care Act, but declared unconstitutional the requirement that states include within their Medicaid programs those within 133% of the poverty level. In King v. Burwell (2015), the court held that those who qualify economically may receive tax credits for purchasing health insurance on insurance exchanges, whether they exchanges are created by the federal or state governments. Chief Justice Roberts wrote both of these opinions.

9. In many of its statutory decisions, the Roberts Court has been pro-business. This has been reflected in rulings favoring arbitration over court adjudication such as in AT&T Mobility LLC v. Concepcion (2011), and in American Express v. Italian Colors Restaurant (2013); imposing restrictions on class action suits such as in Wal-Mart v. Dukes (2011); and barring suits against the makers of generic drugs in Pliva v. Mensing (2011) and in Mutual Pharmaceuticals v. Bartlett (2013). Some commentators have suggested that the Roberts Court is the most pro-business since the mid-1930s.

10. No Roberts Court decisions have been cited more, or had more practical effect on litigation, than Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009). With these decisions, the court changed the test for federal court pleadings. The court also changed the pleading requirements for a motion to dismiss on the grounds of failure to state a claim. No longer is a motion to dismiss to be denied so long as there is some set of facts upon which relief may be had. Instead, the plaintiff must plead enough facts so that the federal district court can conclude that it is “plausible” that the plaintiff can recover.

Federal district court and courts of appeals have struggled with the meaning of this new standard. The practical effect has been a significant increase in cases being dismissed at the pleading stage.

John Roberts is 60 years old. The only safe prediction is that there are still decades to come of the Roberts Court.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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