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Year 8 of the Roberts Court: Landmark decisions, yet change was small

  • Chief Justice of the United States, John G. Roberts Jr.,  speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. (AP Photo/Don Heupel)

    Chief Justice of the United States, John G. Roberts Jr., speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. (AP Photo/Don Heupel)

  • Chief Justice John Roberts speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. Justice Roberts was born in Buffalo on January 27, 1955. (AP Photo/Don Heupel)

    Chief Justice John Roberts speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. Justice Roberts was born in Buffalo on January 27, 1955. (AP Photo/Don Heupel)

  • Chief Justice of the United States, John G. Roberts Jr.,  speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. (AP Photo/Don Heupel)

    Chief Justice of the United States, John G. Roberts Jr., speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. (AP Photo/Don Heupel)

  • Chief Justice John Roberts speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. Justice Roberts was born in Buffalo on January 27, 1955. (AP Photo/Don Heupel)

    Chief Justice John Roberts speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. Justice Roberts was born in Buffalo on January 27, 1955. (AP Photo/Don Heupel)

  • Chief Justice of the United States, John G. Roberts Jr.,  speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. (AP Photo/Don Heupel)
  • Chief Justice John Roberts speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. Justice Roberts was born in Buffalo on January 27, 1955. (AP Photo/Don Heupel)
  • Chief Justice of the United States, John G. Roberts Jr.,  speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. (AP Photo/Don Heupel)
  • Chief Justice John Roberts speaks during a lecture series at Canisius College in Buffalo, N.Y. on Tuesday, Oct. 19, 2010. Justice Roberts was born in Buffalo on January 27, 1955. (AP Photo/Don Heupel)

During his 2005 confirmation hearings, U.S. Supreme Court Chief Justice John Roberts testified in a manner that led many observers to conclude that he was sympathetic to the “legal process” jurisprudential school. The legal process school rose to prominence in the 1950s and 1960s in response to perceived activism by the court under Chief Justice Earl Warren. Legal process enthusiasts embrace judicial modesty, incrementalism, the avoidance of unnecessary constitutional rulings, deference to political institutions and actors, and standing by the precedents – all themes that Roberts sounded as he fielded questions from members of the Senate Judiciary Committee.

Has the chief kept his word? Many court watchers say no. How, they ask, can one use the adjective “modest” in connection with a tribunal that, since 2005, has repeatedly struck down policies adopted by politically accountable institutions in order to protect the rights of, for example, those who object to efforts to maintain racially integrated public school systems (Parents Involved in Community Schools v. Seattle School District No. 1, 2007); firearms enthusiasts (District of Columbia v. Heller, 2008); and corporate entities that wish to influence the outcomes of political campaigns (Citizens United v. Federal Election Commission, 2010)?

Critics such as these are particularly galled by the court’s adoption last term of unprecedented theories of states’ rights to limit Congress’s use of its commerce and spending clause powers to enact the Affordable Care Act (National Federation of Independent Business v. Sebelius, 2012), and its adoption this term of another unprecedented theory of states’ rights – equal state sovereignty – to strike down a central provision of the Voting Rights Act (Shelby County v. Holder, 2013).

Why, they ask, does the court show such solicitude for the states, who should be capable of looking out for themselves in, at the very least, the Senate and the Electoral College – while showing such little regard for, say, those who continue to suffer from the effects of undeniably horrific discrimination? And why does the court so frequently invalidate the work of Congress, a coordinate and co-equal branch of the federal government? After all, senators and representatives also swear oaths to support and defend the Constitution. Why not defer to their views of constitutional boundaries in close cases?

And yet, when viewed along other metrics, the Roberts Court’s record is not entirely at odds with legal process principles. Indeed, the values of incrementalism, constitutional avoidance and standing by the precedents are on prominent display in recent decisions that, over the past year, have been the subjects of commentaries run in this newspaper as part of the Constitutionally Speaking initiative sponsored by the New Hampshire Humanities Council, the New Hampshire Supreme Society, the Institute for Civic Education, and the University of New Hampshire School of Law.

For example, the court held that the police must obtain a warrant before forcibly using a needle to extract blood from suspected drunk drivers (Missouri v. McNeely), or bringing a dog onto private property to sniff for evidence of narcotics in the home (Florida v. Jardines). Yet the court also approved of the taking of DNA samples by swabbing arrestees (Maryland v. King), and held that a dog’s alert outside of a car is sufficient to give the police grounds to search the car (Florida v. Harris).

Long recognized distinctions in the law of search and seizure – distinctions between invasive and mild bodily intrusions, and between the home and the automobile – were maintained in these cases.

Similarly, the court proceeded with caution in holding that a naturally occurring gene is not patent eligible, but that methods developed for manipulating such genes might well be patentable (Association for Molecular Pathology v. Myriad Genetics Inc.).

The court also avoided a showdown over the constitutionality of affirmative action in public universities (Fisher v. University of Texas). Instead, it instructed a lower court take a closer look at the adequacy of the challenged plan under existing law.

Finally, on murky doctrinal grounds, the court invalidated a provision of the federal Defense of Marriage Act that rejected state-sanctioned same-sex marriages for federal law purposes (United States v. Windsor). And it reinstated a California Supreme Court ruling authorizing same-sex marriage by denying standing to defend the law to the proponents of a ballot initiative that had purported to overturn the ruling (Hollingsworth v. Perry).

These cases constituted victories for proponents of same-sex marriage, but left unanswered the central question in the debate: whether same-sex marriage is a constitutional right.

Year Eight of the Roberts Court certainly merits the attention it has received. Many decisions this term addressed foundational questions; they will serve as landmarks. And yet, the term also was one in which the court changed less than it might have. In this respect, legal process enthusiasts would approve.

(John M. Greabe teaches constitutional law, the First Amendment, civil procedure, conflict of laws and judicial opinion writing at the University of New Hampshire School of Law. His scholarship focuses on federal jurisdiction, civil rights and constitutional law. Before joining the UNH School of Law, Professor Greabe taught at Vermont Law School and served as a law clerk to several federal judges within the U.S. Court of Appeals for the First Circuit.)

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