As the ninth term of Chief Justice John Roberts comes to a close, Professor Laurence Tribe and co-author Joshua Matz have published a thought-provoking book that analyzes the significant constitutional changes that the Supreme Court has wrought since Roberts succeeded the late Chief Justice William Rehnquist in 2005. While predicting the future jurisprudence of the Supreme Court is perilous, the authors adroitly identify certain trends that, if realized, will permanently alter America’s legal landscape, particularly with respect to privacy and access to the courts.
The book is organized into nine chapters that each address a separate area of the law: equality, health care, campaign finance, freedom of speech, gun rights, presidential power, privacy, rights for sale (federalism), and access to justice. The authors weave into the narrative useful biographical sketches of the nine current justices and explain their ideological leanings.
In framing the constitutional issues, the book also discusses pertinent historical mileposts and past justices who have played instrumental roles in developing important doctrine. To provide additional context, the authors further quote contemporary academics from both sides of the ideological aisle. What results is a serious analysis of both sides of each issue. While the book is written for lawyers, the authors utilize a style that should appeal to lay readers.
One area where Roberts has left his mark is race. The authors note that Roberts is a forceful champion of a “color-blind constitution, one that forbids government from using racial classifications—even when the goal is to benefit minorities.” They observe that while Roberts “usually prefers to write narrow rulings” in other types of cases, he has assigned to himself “most of the high-profile race cases and issued sweeping statements of principle.” They posit that Roberts’ influence likely spells the end for affirmative action that explicitly considers race, while allowing policies that “value racial diversity.”
Roberts’ most consequential opinion to date is his majority opinion in National Federation v. Sebelius (2012), the healthcare law case. While his opinion upheld the insurance mandate of the Affordable Care Act as a valid federal tax, it also ruled that the two other great delegations of Article I power to Congress—the commerce and necessary and proper clauses—did not empower Congress to impose the mandate. The authors posit that, in the years to come, Roberts and the right-leaning justices appear to be willing to enforce significant “structural limits on federal power” and move toward a “greater solicitude for economic liberty.”
One of the most compelling chapters in the book deals with the Roberts court’s decisions involving the right to privacy and the Fourth Amendment. In prefacing the discussion, the authors describe “five aspects of the right to privacy” that are essential to understanding the context of the court’s recent decisions.
First, they note that the right is a “social right” that involves secrecy, deciding what information to share with others, and how to share it. Second, they explain that the right involves the discretion to establish our own identity. Third, they state that it involves the right to “leave our past behind and experiment with different futures.” Fourth, they point out that the right is a “guardian of many other rights” (i.e., the religious need it to pursue their faith; activists need it to prepare their protests; etc.). Fifth, they posit that the right is a “requirement of democracy,” protecting the citizen from the “state’s unlimited access to whatever information it wishes to obtain.”
As explained by the authors, technological advances have forced the Roberts court to address new challenges to the right. In both U.S. v. Jones (2012), the GPS tracking case, and Florida v. Jardines (2013), the drug-sniffing dog case, the court held that the state required a search warrant. However, the court’s fractured opinions “reveal[ed] deep divisions about the Fourth Amendment’s future.” The authors comment that the “originalism” favored by Justice Antonin Scalia is out-of-step with modern developments and will lead to a property-based approach that weakens the amendment’s protections. They prefer the bolder path mapped out in the Jones concurrence penned by Justice Sonia Sotomayor, who favors a “more privacy-protective approach,” stiffer warrant requirements, and active judicial intervention to oversee “government efforts to obtain and store our private information.”
Another privacy battleground of the Roberts court has been what limits the constitution places on the creation of DNA databases. Although such repositories can “identify the guilty [and] exonerate the innocent,” they also “centralize[s] in government hands a staggering amount of information.” Quoting Judge Stephen Reinhardt of the Ninth Circuit, the authors ask whether the government officials can be trusted “to use wisely vast stores of information they collect regarding their citizens,” when such surveillance has in the past been misused for political purposes to round up suspected anarchists (Palmer Raids), inter Japanese-Americans in wartime (World War II), prosecute suspected Communists (1940s and 1950s), and intimidate civil rights leaders (1950s and 1960s).
One case in point is Maryland v. King (2013), in which the Roberts court addressed whether Maryland could “require officers to perform a cheek swab to obtain DNA from all people arrested for serious offenses.” The key issue was whether police need a warrant to collect DNA under these circumstances. Written by Justice Anthony Kennedy, the majority opinion held that police did not need a warrant to collect DNA of all people arrested on suspicion of committing serious crime, because of the state’s interest in “safely and accurately” identifying suspects. According to Kennedy, identification, and not the need to solve crimes, drove the Maryland DNA collection program. The authors question this reasoning, and comment that it may portend a future in which King is invoked “to justify DNA sampling of non-arrestees thought to have reduced expectations of privacy” and, ultimately, “the entire population.”
The book’s final chapter argues passionately that the Roberts court’s most pervasive influence has been on access to justice, where a string of decisions has made it more difficult for plaintiffs “fight[ing] against discrimination, consumer fraud, deadly drugs and products, the creation of illegal monopolies, and efforts to cheat the financial markets.” These decisions have “sharply limit[ed]” class actions, made arbitration clauses difficult to escape, tightened the standard for dismissing cases as implausible before the parties are allowed to engage in discovery, limited the liability of companies for actions outside the U.S., and restricted where companies can be sued.
The authors lament this significant trend, which they see over time diminishing public courts “as a real option for many Americans in their dealings with big business—when we seek employment, buy phones, sign up for nursing homes, or open bank accounts.” They conclude that the Roberts court has, in effect, become “an anti-court court,” which threatens the “availability of justice in courts of law.”
Jeffrey Winn is a partner at Sedgwick.