Category Archives: The Roberts Court

SCOTUS Repeaters

Few cases ever reach the Supreme Court, but some get there twice. Recent examples include Bond v. United States (decided 2011 & 2014) and Zivotofsky v. Clinton/Kerry (2012 & pending). The Court may soon add another example: Horne v. Department of Agriculture, decided the first go-round in 2012.

What to make of these “SCOTUS repeaters”? It’s hard to draw strong conclusions from this unusual if regular phenomenon, but a few interesting possibilities present themselves.

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Filed under Supreme Decision-making, The Roberts Court

The Precedent Spectrum

The Roberts Court has given us a lot of interesting uses of precedent, including a proliferation of doctrines that purport to dilute the power of stare decisis. The upshot is that the familiar, old-school divide between precedent and dictum has given way to a complex precedent spectrum. Below are a few examples, as well as some misgivings about them.

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Filed under Stare Decisis, The Roberts Court

Bond and the Doctrine of One Last Chance

Yesterday’s decision in Bond v. United States provides the latest example of perhaps the most salient methodological theme of the Roberts Court. Faced with an attractive first-principles argument that threatened immediate doctrinal and real-world disruptions, the Court punted. Instead of resolving the constitutional issue presented, the Court found a barely tenable way to avoid resolving the issue altogether, thereby creating the possibility of a more secure opportunity to rule at a later date. In a recent Green Bag essay, I called this phenomenon “the doctrine of one last chance.” If Bond really does fit that description, then the Court wouldn’t simply have engaged in conventional avoidance, which is constant over time. Instead, the Court would have engaged in super-strong but strictly time-limited avoidance. If the issue arose again, the Court’s hesitancy would evaporate.

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Filed under Judicial Rhetoric, Stare Decisis, The Roberts Court

The Finally Fallible Court

Is this the year when the Supreme Court finally becomes fallible?

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Filed under The Roberts Court