Highlighting the Limits:
The Supreme Court’s 2012-13 Term
and the Concept of Judicial Minimalism
Artemus Ward
Department of Political Science
Northern Illinois University
aeward@niu.edu
Batavia Public Library
Batavia, IL
July 22, 2013
Roberts on Legitimacy
•
•
•
Alexander Hamilton famously explained that unlike the elected branches, the Court
possesses neither the power of the sword nor the purse. As a result, the Court’s
authority rests on its legitimacy in the eyes of elected officials and the American
people. Yet when the Court appears to act in unprincipled ways and hands down
unpopular decisions on highly controversial issues, it gambles its legitimacy.
Research shows that the Rehnquist Court (1986-2005) was the most activist Court in
history in terms of striking down popularly enacted laws. And we all recall the Court
deciding the 2000 presidential election by a 5-4 vote based on ideological lines. Has
the Court called its legitimacy into question?
In a 2007 interview, the new chief justice, John Roberts, said: “If the Court in [Chief
Justice John] Marshall’s era had issued decisions in important cases the way this
Court has over the past thirty years, we would not have a Supreme Court today of
the sort that we have. That suggests that what the Court’s been doing over the past
thirty years has been eroding, to some extent, the capital that Marshall built up. I
think the Court is also ripe for a similar refocus on functioning as an institution,
because if it doesn’t it is going to lose its credibility and legitimacy as an institution.”
•
Jeffrey Rosen. “Robert’s Rules,” The Atlantic (January/February 2007). http://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/.
•
Has Roberts done anything to steer the Court away from the sweeping,
controversial decisions he alluded to since he became Chief Justice in 2005?
I suggest that he has done precisely that. Indeed, the biggest cases of the 20122013 Term demonstrate how Roberts has changed the behavior of his colleagues.
•
Operationalizing Judicial Review
• My colleagues and I employ a new way to
operationalize judicial review.
• Our nuanced measure considers both narrow and
broad variants of upholding or striking behavior.
• We identify five distinct categories:
1.
2.
3.
4.
5.
Uphold Broadly
Uphold Narrowly
Strike Down As Applied
Strike Down On Face Narrowly
Strike Down On Face Broadly
• We coded all the decisions of the final (last natural)
Rehnquist and Roberts Courts (1994-2011 terms)
involving the constitutionality of federal legislation.
Table 1. Judicial Review Outcomes: Roberts
Court v. Rehnquist Court (1994-2011 Terms)
Judicial Review Outcome
Roberts Ct.
Rehnquist Ct.
2 (7.1%)
9 (15.5%)
Uphold Narrow
11 (39.3%)
15 (25.9%)
Strike As Applied
8 (28.6%)
7 (12.1%)
Strike Narrow
4 (14.3%)
21 (36.2%)
Strike Broad
3 (10.7%)
6 (10.3%)
3 Narrow Categories Comb.
23 (82.1%)
43 (74.1%)
Uphold Broad
Table 2. Minimalist Justices (1994-2011)
Justice
Uphold
Broad
Uphold
Narrow
Strike As
Applied
Strike
Narrow
Strike
Broad
3 Narrow
Cat. Comb.
Kagan
1 (11.1%)
3 (33.3%)
4 (44.4%)
1 (11.1%)
0 (0.0%)
8 (88.9%)
Alito
0 (0.0%)
13 (52.0%) 3 (12.0%)
6 (24.0%)
3 (12.0%)
22 (88.0%)
Roberts
2 (7.1%)
11 (39.3%) 8 (28.6%)
4 (14.3%)
3 (10.7%)
23 (82.1%)
Sotomayor
5 (29.4%)
6 (35.3%)
1 (5.9%)
1 (5.9%)
11 (68.8%)
4 (23.5%)
Kennedy
18 (20.9%) 16 (18.6%) 11 (12.8%) 30 (34.9%) 13 (15.1%) 57 (66.3%)
Thomas
19 (22.1%) 18 (20.9%) 9 (10.5%) 29 (33.7%) 11 (12.8%) 56 (65.2%)
Scalia
18 (20.1%) 18 (20.9%)
8 (9.3%)
27 (31.4%) 11 (12.8%) 53 (61.6%)
Souter
19 (27.9%) 11 (16.2%) 9 (13.2%) 21 (30.9%) 8 (11.8%)
41 (60.3%)
Breyer
32 (37.2%) 17 (19.8%) 15 (17.4%) 17 (19.8%)
5 (5.8%)
49 (60.0%)
Ginsburg
31 (36.5%) 17 (20.0%) 10 (11.8%) 21 (24.7%)
6 (7.1%)
48 (56.5%)
O’Connor
19 (33.9%) 7 (12.5%)
5 (8.9%)
19 (33.9%) 6 (10.7%)
31 (55.4%)
Stevens
26 (36.1%) 20 (27.8%)
5 (7.0%)
14 (19.4%) 7 (10.0%)
39 (54.2%)
Rehnquist
21 (36.3%) 7 (12.1%)
3 (5.2%)
11 (19.0%) 6 (10.3%)
21 (36.2%)
Table 3. Judicial Minimalists: Justices Most Likely to Rule Narrowly,
Comparing the Roberts and Rehnquist Courts (1994-2011)
Justice
Roberts Court
Narrow Decisions
Rehnquist Court
Narrow Decisions
Souter
Kagan
Alito
Roberts
Breyer
Stevens
Kennedy
Ginsburg
Scalia
Sotomayor
Thomas
9 (90.0%)
8 (88.9%)
22 (88.0%)
23 (82.1%)
23 (82.1%)
13 (76.4%)
21 (75.0%)
20 (74.0%)
20 (71.4%)
11 (68.8%)
18 (64.3%)
32 (55.2%)
26 (44.8%)
13 (23.6%)
34 (58.6%)
28 (48.3%)
33 (56.9%)
38 (65.5%)
Table 4. Minimalist Courts: Comparing Total Votes on
Roberts and Rehnquist Courts (1994-2011)
Uphold
Broad
Total Votes
on Roberts
Court
Total Votes
on
Rehnquist
Court
Uphold
Narrow
Strike As
Applied
Strike
Narrow
Strike
Broad
3 Narrow
Cat. Comb.
25
98
53
37
32
(10.2%) (40.0%) (21.6%) (15.1%) (13.1%)
188
(76.7%)
186
74
47
162
(36.0%) (14.3%) (10.0%) (31.3%)
283
(54.7%)
48
(9.3%)
Table 5. Judicial Review Outcomes and Consensus on the
Roberts and Rehnquist Courts, 1994-2011.
Judicial Review Outcome
Uphold
Strike As
Strike
Narrow
Applied
Narrow
4 (57.1%)
3 (42.9%)
0 (0%)
3 (25.0%)
2 (16.7%)
4 (33.3%)
# Dissents
0 RobCt
RehnCt
Uphold
Broad
0 (0%)
3 (25.0%)
Strike
Broad
0 (0%)
0 (0%)
Total
7
12
1 RobCt
RehnCt
0 (0%)
0 (0%)
1 (25.0%)
3 (75.0%)
2 (50.0%)
0 (0%)
0 (0%)
1 (25%)
1 (25.0%)
0 (0%)
4
4
2 RobCt
RehnCt
2 (40.0%)
2 (22.2%)
2 (40.0%)
3 (33.3%)
0 (0%)
2 (22.2%)
1 (20%)
0 (0%)
0 (0%)
2 (22.2%)
5
9
3 RobCt
RehnCt
0 (0%)
2 (16.7%)
0 (0%)
3 (25.0%)
1 (100%)
2 (16.7%)
0 (0%)
3 (25.0%)
0 (0%)
2 (16.7%)
1
12
4 RobCt
RehnCt
0 (0%)
2 (9.5%)
4 (36.4%)
3 (14.3%)
2 (18.2%)
1 (4.8%)
3 (27.3%)
13 (62.0%)
2 (18.2%)
2 (9.5%)
11
21
RobCt
RehnCt
Total
2 (7.1%)
9 (15.5%)
11
11 (39.3%)
15 (25.9%)
26
8 (28.6%)
7 (12.1%)
15
4 (14.3%)
21 (36.2%)
25
3 (10.7%)
6 (10.3%)
9
28 (100%)
58 (100%)
Consensual Minimalism
• The previous table reveals that overall the Roberts Court was
able to reach consensus (as defined by unanimous decisions
as well as decisions with only one or two dissenting votes)
more often than the final Rehnquist Court (57.1% v. 43.1%).
• This may be because the Roberts Court acted more minimally
(again, by combining the Uphold Narrow, Strike As Applied,
and Strike Narrow categories) than did the Rehnquist Court
in those cases (81.3% v. 72%).
• Indeed, as a percentage of all the judicial review decisions
decided by each Court, the Roberts Court was more
consensually minimal (the combination of the three minimal
categories for unanimous decisions and those with only one
or two dissents) than the Rehnquist Court (46.4% v. 31%).
• Again, it is plain from these data that a shift toward
consensual minimalism has occurred under Chief Justice
Roberts.
Fisher v. Texas (2013)
• The Court was confronted with the issue of affirmative action in University
admissions.
• In Board of Regents of the University of California v. Bakke (1978) and Grutter v.
Bollinger (2003) the Court held that race could be considered by university
admissions committees as one factor among many in order to achieve a diverse
student body.
• The Court said in these cases that race-based policies should be judged under
“strict scrutiny” meaning that the state must have a compelling interest in
considering race (student-body diversity) and the policies must be “narrowly
tailored” to achieve that interest.
• In Fisher, many thought the justices might overturn Grutter and Bakke and end
affirmative action. Yet the Court voted 7-1 for a narrow, minimal outcome.
Specifically, Kennedy (joined by Roberts, Alito, Breyer, and Sotomayor) sent the
case back to the court of appeals with instructions that they apply strict scrutiny
(the court of appeals had simply assumed the state acted in good faith).
• Justices Scalia and Thomas reiterated their position from previous cases that
affirmative action is unconstitutional. Justice Ginsburg was the lone dissenter
arguing that the court of appeals inquiry was appropriate.
• In sum, Fisher is an example of the Roberts Court avoiding a broad, activist result
on a controversial issue.
Shelby County v. Holder
(2013)
• The Court acted similarly in Shelby County invalidating Section 4 of the Voting
Rights Act (VRA) that established the formula and criteria for determining
whether a state or voting district would be subjected to the “preclearance”
provisions of Section 5 of the Act States who meet those criteria must submit
any changes in voting procedures or voting districts for approval by the Justice
Department before those changes can go into effect.
• Writing for the 5-4 majority, Chief Justice Roberts reasoned that because the
criteria have remained the same since the 1960s and 70s, they may not reflect
current conditions in the states that have been subjected to the preclearance
provisions for decades now.
• Still, the Court did NOT strike down Section 5 of the Act which would have been
far more dramatic and far-reaching. Roberts’ majority opinion in the case was
limited to Section 4, and it expressly showed deference to congressional
authority over the broader policy area.
• Indeed, the opinion is clever because he is able to show deference to the
legislative branch at a time when the current state of affairs in Congress makes it
unlikely that they will take up the invitation to rewrite Section 4.
• In sum, invalidating Section 4, rather than Section 5, of VRA was a more narrow,
minimal decision. To have struck down Section 5 would have been to essentially
invalidate the Voting Rights Act which has been in place since 1965.
The Gay Marriage Cases
• In U.S. v. Windsor (2013), the Court struck down 5-4 (Kennedy, Ginsburg, Breyer,
Sotomayor, Kagan) a federal law that did not allow federal recognition for gay
couples who were legally married by states. The law in effect denied federal
marriage benefits in taxes, estates, and related matters. In Hollingsworth v. Perry
(2013), the 5-4 majority (Roberts, Scalia, Ginsburg, Breyer, Kagan) said that
because the state declined to participate in the case and a private party instead
brought the appeal, the case could not be decided by the Supreme Court.
• What the Court did not do in the gay marriage cases is to declare a fundamental
right to gay marriage as they did in Loving v. Virginia (1967) with regard to
interracial marriage. In Loving the Court said that the Equal Protection Clause
forbids states from restricting marriage on the basis of race. The Court could
have made a similar holding in Perry but chose to avoid that issue altogether by
deciding the narrow question of whether or not the party bringing the suit had
the legal status to do so.
• Consider Roberts’ dissent in Windsor: “I write only to highlight the limits of the
majority’s holding and reasoning today, lest its opinion be taken to resolve … a
question that all agree, and the Court explicitly acknowledges, is not at issue.”
Instead of the broad question of a fundamental right to gay marriage that states
may not restrict, the narrow issue for the Court was only whether those legally
married in a state can be denied federal marriage benefits. Kennedy’s majority
opinion in Windsor states: “This opinion and its holding are confined to those
lawful marriages.” Thus, Windsor has no effect on states that forbid gay
marriage. In sum, the Court ruled narrowly in both cases.
Conclusion and Implications
• The Roberts Court rules narrowly far more often than it rules broadly.
• Justices serving with both Rehnquist and Roberts ruled more
narrowly under Roberts (except Thomas).
• The Roberts Court is a far more minimalist Court than the Rehnquist
Court.
• The Roberts Court’s minimalism has led to a greater degree of
consensus than was the case under Rehnquist (e.g. Fisher v. Texas).
• The Roberts Court has only been able to achieve unanimity by ruling
narrowly.
• The 2013 Term ended up being far less dramatic (and therefore less
damaging) than it could have been had Roberts not pressed his
colleagues for minimal results.
• What would have been the effect on the Court had the justices
abolished affirmative action, struck down the Voting Rights Act, and
granted a fundamental right to gay marriage?
• Both liberals and conservatives would have been outraged. Instead,
the Court’s narrow decisions provide both small victories and small
losses for everyone. Chief Justice Roberts is responsible.
National Federation of Independent
Business v. Sebelius (2012)
• Roberts wrote the majority opinion that upheld the
individual mandate provisions of the Affordable Care Act
(ACA), but only because they could be considered a tax
and thus valid under Congress’s taxing power.
• While effectively showing some deference to Congress, he
also managed to limit federal commerce power and
protect states from losing Medicaid funding if they didn’t
satisfy coercive conditions placed on them under the ACA.
• Conservatives were thrilled with the commerce clause
portion of the holding while liberals were thrilled that the
ACA survived. Roberts was thrilled that the decision
protected the Court from a frontal assault from the
Obama administration which is what they were plainly
being threatened with from the start.
Citizens United v. Federal Election
Commission (2010)
• The U.S. Supreme Court issued a broad
decision striking down sections of the
McCain-Feingold campaign-finance law.
• Writing for a five-justice majority,
Justice Anthony Kennedy ruled that the
statute’s prohibition on political
advertising in the run-up to elections by
corporations and unions was an
unconstitutional restriction of political
speech.
• Using broad language, Kennedy wrote:
“If the First Amendment has any force, it
prohibits Congress from fining or jailing
citizens, or associations of citizens, for
simply engaging in political speech.”
Citizens United v. Federal Election
Commission (2010)
• Yet at their initial conference vote on the case the same
five-justice majority voted far more narrowly.
• Instead of declaring the campaign limits unconstitutional,
the majority said that the law did not apply to the specific
communication in question—in this case a feature-length
documentary about Hillary Clinton that was to be shown on
cable and satellite television.
• Chief Justice John Roberts assigned the majority opinion to
himself, drafted it, and circulated it to his colleagues.
• Justice Kennedy was not satisfied with Roberts’ narrow, asapplied analysis and Kennedy circulated his own
concurrence.
• He explained that the Court should have issued a broader
ruling, not only declaring McCain-Feingold’s restrictions
unconstitutional but also questioning and even overturning
prior Supreme Court decisions that allowed restrictions on
corporate giving.
• Kennedy’s broad concurrence gained adherents and
Roberts withdrew his opinion and supported Kennedy’s as
the opinion of the Court.
Citizens United v. Federal Election
Commission (2010)
• Ultimately, Kennedy’s opinion became the law of
the land and transformed Citizens United from
what would have been a relatively minor asapplied, statutory campaign finance decision into
a landmark First Amendment case that opened
the door for greater involvement from
corporations in political elections.
• To be sure there is a world of difference between
Roberts’ as-applied opinion and Kennedy’s
constitutional one.
• Yet in both scenarios Citizens United won the
case and a Supreme Court majority supported
the free-speech position over government
restrictions.
• But classifying each decision as simply pro-freespeech misses important distinctions between
relatively narrow statutory rulings and broad
constitutional pronouncements.
Conceptualizing
Judicial Review
• In almost all studies of judicial decision making, judicial
review has been conceptualized as a dichotomous—
uphold or strike down—choice.
• The Supreme Court Database allows researchers to use
this measure (combining “uncon” and “auth_dec”
variables).
• Scholars have used it to find that ideology influences the
decision to strike or uphold (Segal and Spaeth 2002; Sala
and Spriggs 2004; Keck 2007).
• We suggest that the dichotomous coding scheme has
resulted in a situation where legal and institutional factors
have been deemphasized in favor of ideology.
As-Applied v. On Face
• Despite the preoccupation with
dichotomizing judicial review, some scholars
have discussed a more sophisticated
conceptualization—namely a distinction
between striking down legislation on its face
or as applied.
• Normative theorists have extolled the
“passive virtues” of judicial minimalism or
narrow rulings as deferential to legislative
majorities (e.g. Bickel 1961; Sunstein 1999).
• Empirical work has found:
– the justices first decide to strike or uphold and
then decide whether to do so as applied or on
face (Lindquist and Corley 2011);
– Congress is more likely to amend legislation
when the Court strikes down on face (Pickerill
2004).
Operationalizing Judicial Review
• We propose a new way to operationalize
judicial review.
• Our nuanced measure considers both narrow
and broad variants of upholding or striking
behavior.
• We identify five distinct categories:
1.
2.
3.
4.
5.
Uphold Broadly
Uphold Narrowly
Strike Down As Applied
Strike Down On Face Narrowly
Strike Down On Face Broadly
Table 1. Typology of Judicial Review
Uphold
Broadly
Uphold
Narrowly
Strike Down
As Applied
Strike Down
Strike Down
On Face
On Face
Narrowly
Broadly
• Uphold in • Uphold
• Strike down • Specific
• Strike down
with
provisions
on face
entirety
as applied
• No
limitations • Strike down
severed
broadly
limitations
on decision
based on
and struck
because
on decision
or state
policy area
facts
down
or state
• Strike down
is not
action
• Uphold as
on face but
within the
action
with
power of
applied
direction
state actor
for
alternatives
to achieve
policy ends
CODING AND MEASURING JUDICIAL REVIEW:
ILLUSTRATIVE CASES
• We trained two student research assistants and had
them code the decision to fit into one of the five
categories using the definitions in the previous section
as the decision-rules.
• We began with cases we were familiar with and that we
thought exemplified the categories based on our own
reading.
• The research assistants independently coded each of the
following cases in the categories we had predetermined,
indicating that the stated decision-rules were reasonably
clear and could be implemented.
Table 2. Variation in Upholding Behavior: Illustrative Cases
Uphold Broadly
U.S. v. Comstock
(2010)
• "The Constitution ‘addresse[s]’ the ‘choice of
means’ ‘primarily … to the judgment of
Congress. '"
• "[The law] is a modest addition to a
longstanding federal statutory framework."
Uphold Narrowly
Milavetz, Gallop &
Milavetz v. U.S.
(2010)
• "After reviewing these competing claims, we
are persuaded that a narrower reading of [the
statute] is sounder, although we do not adopt
precisely the view the Government
advocates."
Table 3. Variation in Striking Behavior: Illustrative Cases
Strike Down As Applied
-- “Because the Commission failed to give Fox or ABC fair notice prior to the
FCC v. Fox
broadcasts in question that fleeting expletives and momentary nudity could be
Television
Stations (2012) found actionably indecent, the Commission’s standards as applied to these
broadcasts were vague”
-- “It then applied this new principle to these cases. Its lack of notice to Fox and
ABC of its changed interpretation failed to give them ‘fair notice of what is
prohibited.’”
Strike Down On Face Narrowly
Pepper v. U.S.
(2011)
-- “Because ‘departures are not available in every case, and in fact are unavailable
in most,’ [citation omitted] we held that remedying the Sixth Amendment
problem required invalidation of § 3553(b)(1). That same remedial approach
requires us to invalidate § 3742(g)(2).”
-- “District courts post-Booker may consider evidence of a defendant’s
postsentencing rehabilitation at resentencing and such evidence may, in
appropriate cases, support a downward variance from the advisory Guidelines
range.”
Strike Down On Face Broadly
Citizens United -- “If the First Amendment has any force, it prohibits Congress from fining or
v. FCC (2010) jailing citizens, or associations of citizens, for simply engaging in political speech.”
-- “This case cannot be resolved on a narrower ground without chilling political
speech, speech that is central to the First Amendment's meaning and purpose.”
CODING AND MEASURING JUDICIAL REVIEW:
The Final Rehnquist and Roberts Courts (1994-2011)
• We used the Supreme Court database to identify all the
decisions of the final (last natural) Rehnquist and Roberts
Courts (1994-2011 terms) involving the constitutionality of
federal legislation.
• Consistent with the United States Supreme Court database,
we coded for the case outcome and the individual votes of
each justice.
• The research assistants were instructed to extract and
record language from opinion(s) in the decision that
justified their coding decision(s).
• For the 2011-2012 term we read the syllabus for every case
decided by the Court and identified those in which the
Court decided the constitutionality of federal legislation.