Archive: Scholars' Forum
The Future of Roe
Trevor Morrison at the Cornell Law School suggests that focusing on whether Roberts might vote to overturn Roe is the "wrong question." The right question, says the onetime clerk to Justice Ruth Bader Ginsburg, is whether he would participate in hollowing out Roe and related cases. The first opportunity will be in the upcoming term in the case of Ayotte v. Planned Parenthood. His essay is at Thinkprogress.org, published by the American Progress Action Fund of the Center for American Progress....
By Fred Barbash | August 12, 2005; 04:04 PM ET | Email a Comment
The Hapless Toad Revisted
See this CNN.com and FindLaw article by Julie Hilden for more on the meaning of Rancho Viejo v. Norton and Judge Roberts's dissent from denial of en banc review, which, so far, appears to be the most discussed or "dissected" of Roberts's writings on the bench. See also this and this. Here is the dissent. From a commerce clause point of view, Roberts, in theory, could see a real estate development's frog-ousting as essentially the same as the frog-ousting performed by, say, a group of trespassing local kids building a fort. Roberts' commerce clause view isn't just narrow; it's virtually microscopic. In Roberts' own words, this case was about simply "the taking of a hapless toad" -- not about a developer's project clashing with the survival of an endangered species. But of course, this clash was plainly the context of the toad "taking" -- and no one could have missed...
By Fred Barbash | August 4, 2005; 04:44 PM ET | Comments (3)
Roberts Memos: 'Excited and excitable youth'
At the Supreme Court Nomination blog, Lyle Denniston offers an analysis of Roberts's DOJ memos as "period pieces:" To be sure, they use the language of grown-up legal argumentation. But the very purity of the ideological reasoning suggests strongly that many, perhaps most, of the positions were taken for their audacity, and not for their real-world prospects of actual implementation....
By Fred Barbash | August 4, 2005; 06:24 AM ET | Email a Comment
Analysis of Roberts record on standing
For an analysis of Roberts's views on standing and of his Duke Law Journal article on the subject see Brian Fletcher at the Supreme Court nomination blog. Fletcher says: Judge Roberts's essay makes it very plain that as a matter of policy he believes that a robust standing doctrine is a desirable check on judicial power. Furthermore, his defense of the Defenders opinion as a "sound and straightforward decision applying the Article III injury requirement" demonstrates his belief that the Court's precedents support a standing requirement with teeth. Therefore, it is reasonable to infer that Judge Roberts would vote with the Justices who favor stricter standing requirements. However, it is also important to recognize what cannot be fairly inferred from Judge Roberts's essay.....His argument is grounded in precedent and policy rather than originalism or any other distinctive philosophy of constitutional interpretation. In fact, rather than respond to the historical arguments...
By Fred Barbash | August 3, 2005; 10:43 AM ET | Email a Comment
Geoffrey R. Stone
Geoffrey R. Stone of the University of Chicago writes in a Chicago Tribune op-ed: During the 2004 presidential election, George W. Bush promised to appoint Supreme Court justices like those he most admires: Antonin Scalia and Clarence Thomas. In nominating John Roberts, Bush has broken that promise, to the great good fortune of the American people. The last thing the nation needs is for one-third of the Supreme Court to be off the deep right end of the law....
By Fred Barbash | July 28, 2005; 08:41 AM ET | Comments (4)
Roberts on Fourth Amendment
For an analysis of Judge Roberts's Fourth Amendment search and seizure cases by Brian Fletcher see the Supreme Court Nomination Blog. Stressing that the record is limited, Fletcher sees "a preference for relatively narrow Fourth Amendment holdings rather than more sweeping rules" in one case and a suggestion in another "that he will be wary of rulings that unduly regulate the manner in which law enforcement officials conduct their investigations."...
By Fred Barbash | July 27, 2005; 06:39 PM ET | Email a Comment
The Senate's Role
Erwin Chemerinsky of Duke University School of Law and Brannon P. Denning of Cumberland School of Law debate the meaning of "advice and consent" at Legalaffairs.org....
By Fred Barbash | July 26, 2005; 11:47 AM ET | Comments (1)
Court's Importance Overstated?
Rosa Brooks of the University of Virginia School of Law writes in the Orlando Sentinel that: With all the hullabaloo about the nomination of federal appeals court Judge John G. Roberts Jr., it's easy to start imagining that the country's entire future depends on the makeup of the Supreme Court. That would be a mistake. Although the Supreme Court is undoubtedly an important American institution, it matters much less -- and much differently -- than most people think....
By Fred Barbash | July 26, 2005; 11:22 AM ET | Comments (15)
David Franklin
For more on Roberts views on the issue of standing, see David Franklin's post at the Supreme Court Extra of thinkprogress.org. The Duke Law Journal article he refers to was referenced in a previous post here. Franklin writes: Perhaps the reason this article hasn't attracted broader attention is its subject matter. The title, "Article III Limits on Statutory Standing," might leave even the best journalist struggling to suppress a yawn. Yet the topic of standing--the threshold inquiry that determines whether or not a plaintiff is entitled to federal court review--is a profoundly important one. In the last couple of decades the Supreme Court, often led by Justice Scalia, has generally tightened the requirements for standing, making it more difficult for plaintiffs to bring lawsuits ranging from civil rights claims to environmental enforcement actions to challenges to the constitutionality of the Pledge of Allegiance. Roberts's observation that "[s]tanding is an...
By Fred Barbash | July 26, 2005; 03:00 AM ET | Email a Comment
Cass Sunstein
Cass R. Sunstein (University of Chicago) in today's LA Times: Judge John G. Roberts Jr. fits the standard profile of a Supreme Court nominee: a middle-aged white man, appointed after serving on a federal appellate court. Whatever they think of Roberts' merits, many people had hoped for something different -- something other than the standard profile. First Lady Laura Bush, for instance, said, "I would really like for him to name another woman." While describing Roberts as "first-rate," Justice Sandra Day O'Connor said she was "disappointed ... to see the percentage of women on our court drop by 50%." Others have hoped, and continue to hope, for a Latino justice, or perhaps for another African American. Still others, including Senate Minority Leader Harry Reid, argue that the president should be considering people "outside the box," including candidates from state government, the executive branch or even Congress, rather than taking...
By Fred Barbash | July 23, 2005; 07:34 AM ET | Comments (1)
Richard Epstein
Richard Epstein (University of Chicago law school), writing in the Manhattan Institute's Point of Law: Everyone has to remember that a nominee is a bundle of positions on all sorts of issues. It is as if we were given the choice to take or leave a bag of groceries in a supermarket, some of whose contents we liked and some not. In general, we are better taking the bag if there is an all-or-nothing choice even if we do not like all of the items. In politics it is still worse because there is no candidate who is worth his or her salt who does not have some features various groups do not like. All that we can ask for is to have a person who will listen to the arguments when individual cases are decided, issue by issue. I do not think that the hard-left will be able...
By Fred Barbash | July 22, 2005; 10:09 AM ET | Comments (4)
