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USA - Courts

Much ink has been spilled about the proper way to go about the task of statutory interpretation. One can stick, to the greatest extent possible, to the language enacted by the legislature; one could consult the legislative history that led up to the bill that became law; one could examine later actions of the legislature (i.e. efforts to amend the law and later enactments) for whatever light they may shed; and one could use a combination of these methods.

Few people would insist that there is a need to delve into secondary sources if the statute is plain on its face. Even if it is not pellucid, the best source for disambiguation is the broader context of the statute that the Congress passed. This is uncontroversial when the reading seems consistent with the conventional wisdom about the reach of the law. It becomes somewhat harder to swallow if the language reveals suspected or actual unintended consequences. It is then that some have thought that legislative history should be used to block a particular reading of a statute.

Legislative history, however, is notoriously malleable. Even worse is the temptation to try to divine the significance of unsuccessful legislative efforts to change the law. Those failures can mean almost anything, ranging from the lack of necessity for a proposed change because the law already accomplishes the desired goal, to the undesirability of the change because a majority of the legislature is happy with the way the courts are currently interpreting the law, to the irrelevance of the non-enactment, when it is attributable to nothing more than legislative logrolling or gridlock that had nothing to do with its merits.

A precedent is a court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way. Some precedent is binding, meaning that it must be followed. Other precedents need not be followed by the court but can be considered influential. There should be nothing surprising in the fact that lower courts may have been wrong for many years in how they understood the rule of law supplied by a statute or the Constitution. Exactly this has happened before.

Respect for the constraints imposed on the judiciary by a system of written law must begin with fidelity to the traditional first principle of statutory interpretation: When a statute supplies the rule of decision, the courts role is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment. The courts are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.

But a judge-empowering, common-law decision method leaves a great deal of room for judicial discretion. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. Over and over again, old statutes, old constitutional provisions, are given new meaning.

The Roberts Court, led by Chief Justice John Roberts since 2005, has garnered significant praise from various legal scholars, practitioners, and observers for multiple aspects of its jurisprudence and institutional management. Chief Justice Roberts himself has been lauded for his commitment to the Supreme Court as an institution, often emphasizing in his writings and public statements the importance of maintaining public confidence in the judiciary. His approach to leadership has been characterized by some as one of cautious incrementalism, seeking to build consensus where possible and avoiding unnecessarily sweeping pronouncements that might undermine the Court's legitimacy. This institutional focus has won praise from those who believe the Court should transcend partisan divisions, even as critics note that such efforts have had mixed success in an increasingly polarized political environment.

In the realm of First Amendment jurisprudence, the Roberts Court has developed a robust record of protecting free speech that has earned praise from civil libertarians across the political spectrum. The Court's decision in Citizens United v. Federal Election Commission, while highly controversial, was celebrated by free speech absolutists who viewed restrictions on political expenditures as impermissible government interference with political expression. Beyond campaign finance, the Court has issued decisions protecting offensive speech, religious expression, and commercial speech that supporters argue reflect a principled commitment to the marketplace of ideas. Religious liberty advocates in particular have praised the Court's careful attention to Free Exercise Clause claims and its willingness to scrutinize government actions that burden religious practice, seeing these decisions as vindication of fundamental freedoms protected by the First Amendment.

The Roberts Court has also received recognition for several decisions advancing criminal justice reform, an area where conservative and progressive legal thinkers have sometimes found common ground. The Court's decisions limiting life sentences without parole for juvenile offenders were praised by child advocacy groups and criminal justice reformers as reflecting evolving standards of decency and recognition of adolescent development. Its Fourth Amendment decisions restricting warrantless government surveillance, including rulings on GPS tracking and cell phone searches, earned praise from privacy advocates who saw the Court adapting constitutional protections to modern technology. These decisions were viewed by supporters as demonstrating that the Court could apply constitutional principles thoughtfully to contemporary challenges while protecting individual liberty against government overreach.

Perhaps one of the most celebrated decisions of the Roberts Court era was Obergefell v. Hodges in 2015, which recognized a constitutional right to same-sex marriage. This decision was hailed by LGBTQ+ rights advocates as a transformative moment in American civil rights history, placing marriage equality on the same constitutional footing as other fundamental rights. Supporters of the decision praised Justice Kennedy's majority opinion for its recognition of the dignity and equality of same-sex couples, and viewed the ruling as the culmination of decades of advocacy and evolving social attitudes. The decision cemented the Roberts Court's role in one of the most significant expansions of civil rights in recent American history, though it's worth noting that Chief Justice Roberts himself dissented.

From a conservative legal perspective, the Roberts Court has been praised for decisions that demonstrate judicial restraint and respect for democratic processes. Decisions that have limited federal power, shown deference to state sovereignty, or declined to create new constitutional rights have been applauded by those who favor originalist or textualist approaches to constitutional interpretation. The Court's procedural decisions on standing, justiciability, and other threshold issues have sometimes been praised for preventing the judiciary from overreaching into political questions better left to elected branches. Additionally, Chief Justice Roberts's surprising vote to uphold the Affordable Care Act in 2012, while disappointing to some conservatives, was praised by others as an example of putting institutional concerns and judicial modesty ahead of political preferences, demonstrating that the Court would not simply function as a partisan actor.

Lisa Graves, one of the leading experts on the Supreme Court, outlined how Chief Justice John Roberts and his fellow politicians in robes have helped undermine democracy. "John Roberts ascended to the Supreme Court and for nearly two decades maintained a reputation as a fair referee. But most people really have no idea who Roberts is, what a destructive force he is to American jurisprudence, and how he has helped fracture our political system and our society...

"The image of Roberts as an impartial umpire proved to be persuasive and durable, but instead of being a genuine expression of his temperament and approach, it was a meticulously planned and effectively delivered public relations strategy. He presented himself as a dedicated institutionalist who sought to uphold American judicial traditions. Far from being a protector, however, he has used his position as chief justice to orchestrate a pattern of extreme decisions that have unmoored American democracy from its foundations – and that was before Donald Trump’s three appointees joined the Court. Despite Roberts’s claims that there are no Republican or Democratic federal judges, he has established himself not as a fair referee but as a diabolically effective player rewriting the Constitution and remaking America in accord with his reactionary political agenda, as he strategizes how to move the ball forward and disarm the opposition.

"Roberts’s reactionary docket has included destroying environmental rules that protect our planet from predatory billionaires, overturning legal precedents that limited access to deadly guns, forging the shield of religious freedom into a sword to attack equality and access to healthcare, decimating labor unions’ power to bargain for workers’ rights, and unleashing waves of billionaire spending in our elections in ways that corrupt our representative democracy and sever public institutions from vital traditions of impartiality. Democrats credited him with, and Republicans lambasted him for, saving the Affordable Care Act (dubbed Obamacare), but Roberts is playing for team GOP, and his occasional nods at moderation allow him to more effectively realize his long-term agenda. Kicking millions of Americans off of health insurance could have caused the GOP even bigger losses in 2012, and embracing the dubious legal theories against Obamacare would have undermined the power to enact tax policy that favors the rich.

"Devastatingly, Roberts has systematically altered the very structure of our democracy by sabotaging voting rights and permitting illegitimate and undemocratic electoral maps that have all but eliminated incentives to seek compromise, fueling extremism and division. But Roberts’s masterstroke was alchemy: turning gold into speech by judicially rewriting the First Amendment to allow mountains of gold in the form of dark money to distort our elections. His Court did so by barring Congress from regulating the corrupting influence of unlimited cash supplied by billionaires seeking to manipulate our elections. The result in that case, called Citizens United v. FEC, was orchestrated by the Roberts Court, which ordered an out-of-season oral argument on new questions to clear the decks for a surge in secret cash for the 2010 midterms – just in time to try to rein in America’s first Black president, Barack Obama. That tsunami of cash has been deployed to distort the ensuing elections, epitomized by the actions of the richest man in the world, Elon Musk, who spent $288 million to procure the presidency for Donald Trump (and an unelected co-presidency for a while) in 2024. Big money has also altered the makeup of the nation’s highest court and, with it, how our Constitution and laws are interpreted, creating a self-reinforcing circle of corruption. Roberts’s success in dismantling the guardrails needed for fair elections and fairness in general has greatly weakened – and, in fact, imperiled – democracy.

"Through action and inaction, Roberts has also allowed a culture of corruption to run rampant. For more than a decade, he has worked to stall congressional efforts to require an enforceable code of conduct for the Supreme Court, even though every other judge in the nation is subject to such rules. He has not taken any public action to redress the numerous investigative reports about the mountain of secret gifts and serious ethical failures associated with Clarence Thomas and others. Roberts stood silent as Thomas sat on the case involving Donald Trump’s immunity claims in a criminal case about Trump’s efforts to subvert the 2020 presidential election, even though Thomas’s wife, Ginni Thomas, actively sought to stop the count and even to secure fake electors. Roberts adopted the same do-nothing approach toward Samuel Alito, despite evidence that flags tied to the January 6 insurrection were flown over his homes. Why? Roberts needed their votes in order to accomplish his most reactionary agenda to date and to cement the most unprecedented edict of all: to effectively pardon Trump and pave the way for his return to power, emboldened by kinglike immunity from prosecution for any of his “official acts” as president.

"The pattern of conduct is clear: Roberts has made extraordinary efforts to ensure that those with great power and wealth have the opportunity to corrupt every aspect of our politics and society, and when the long-festering corruption of his Court has become front-page news, he has refused to clean up the mess. On the surface, his response has been singularly feckless and an insult to the institution of the Court, but on a deeper level, he understands that actually cleaning up the Court would undermine his overarching political agenda to remake the law. On Roberts’s watch, the Court has become a creature more beholden to the influence of the richest few –and their political operatives – than at any time in the past century. This is not a bug; it is the design.""