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Issue Briefs

John Roberts has begun his tenth year as Chief Justice of the United States. In the years since he joined the Supreme Court, Chief Justice Roberts has had the opportunity to define himself as a Justice—through the votes he has cast, the decisions he has written, and the manner in which he has led the Supreme Court and the federal judiciary. The first nine years of John Roberts’s tenure as Chief Justice have seen many significant cases, and from same-sex marriage to abortion to affirmative action, others loom on the horizon. By looking at what the Chief Justice has done in the past, as well as what he does this Term, we hope to be able to offer some fresh insights into whether Chief Justice Roberts has lived up to the promises made by Judge John Roberts at his confirmation hearings.

With the Supreme Court poised to consider the review of marriage equality rulings by lower courts around the country, opponents of marriage equality have radically changed the thrust of their defense of state laws that deny same-sex couples the right to marry. Defenders of discriminatory marriage laws are now pressing a federalism/democracy argument, claiming that the people of a state have the authority to decide whether to place a badge of inferiority on same-sex couples and deny them the right to marry. As documented in this Issue Brief, this argument, which flies in the face of the Constitution’s text and history, is no more viable than the arguments previously being pressed. 
 

In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise of religion. As we explain more fully in this issue brief, it should not do so now.

Read our report, Hostile Environment, which documents the threat that anti-environmental judicial activists sitting on the federal bench pose to protections for the environment, specifically by denying plaintiffs their day in court due to "lack of standing."

On May 1, 2013, CAC published "Not So Risky Business: The Chamber of Commerce's Quiet Success Before the Roberts Court - An Early Report for 2012-2013." Since 2010, we have  been tracking the Chamber’s Supreme Court activities and releasing related reports each Term. This report is the latest in that series, chronicling the Chamber’s growing impact on the Court’s docket and its overall success before the Roberts Court, particularly in closely decided cases.

On February 14, 2013, CAC’s David Gans and Elizabeth Wydra released an Issue Brief distributed by the American Constitution Society entitled “The Voting Rights Act Is In Jeopardy, But It Shouldn’t Be: A Close Look at Shelby County v. Holder.” This Issue Brief explains why the constitutionality of the preclearance requirement of the Voting Rights Act – the question being considered by the Supreme Court in Shelby County – should not be in serious doubt.   First, the Constitution’s text expressly gives Congress the power to enact legislation to enforce the Constitution’s prohibition against racial discrimination in voting. Second, the Supreme Court has affirmed the constitutionality of the preclearance provision four times.  Finally, the record developed by Congress in 2006 – as well as the actions of states in the run up to the 2012 elections – manifestly shows the continuing need for the preclearance provision to prevent and deter racial discrimination in voting. 

On January 20, 2012, CAC published Reversing Citizens United: Lessons from the Sixteenth Amendment. Released to coincide with the two-year anniversary of Citizens United, this Issue Brief tells the story of the how progressives in the early 20th Century amended the Constitution to overturn the Supreme Court’s 1895 decision in Pollock v. Farmers’ Loan & Trust, a 5-4 ruling that struck down a federal income tax law and, much like Citizens United, departed from first constitutional principles and a long line of precedents. In telling the story of how the people took the Constitution back from the Lochner-era Supreme Court, the Issue Brief offers critical lessons for modern progressives fighting to reverse Citizens United.

On September 29, 2011, CAC released "CAC Supreme Court Preview:  Tests of Government Power in the Supreme Court’s 2011 Term—With Even Bigger Cases on the Horizon."  In this issue brief, CAC previews cases that challenge the federal government’s constitutional authority to act to protect against sex discrimination in the workplace, Coleman v. Maryland Court of Appeals, and to conduct surveillance using modern technology, United States v. Jones, as well as the states’ ability to take regulatory action that purportedly conflicts with federal law, for example, Douglas v. Independent Living Center. We note that the likely blockbusters of the Term are cases challenging the constitutionality of President Obama’s health care reform law, defending Arizona’s controversial immigration law, attacking affirmative action policies, and asserting the rights of same-sex adoptive parents. By June 2012, this term may prove to be among the most momentous terms in recent decades.

CAC’s latest Issue Brief, released on August 4, 2011, (and updated periodically there after) focuses on the unprecedented, slow pace of judicial confirmations in the Senate. At a time when caseloads in our federal courts are at a record high, the Senate’s confirmation process for judicial nominees has failed to keep pace with new judicial vacancies. This has stretched the federal judiciary, already overextended, close to its breaking point. While the number of judicial vacancies typically increases at the beginning of a new presidency, a rapid decline usually follows. The Obama Presidency has seen that trend broken. Never before has the number of vacancies risen so sharply and remained so high for so long during a President’s term. For 763 straight days there have been more than 80 vacancies on the federal bench, and there is no end in sight.

On June 28, 2011, CAC released an issue brief highlighting two themes that join together some of the Court’s most important and most sharply divided business cases of the October 2010 Term. The first theme concerns corporate accountability. The second theme involves corporate speech. The final section of this Issue Brief updates Constitutional Accountability Center’s empirical analysis of the trends in the success rate of the Chamber of Commerce before the Court over the past 30 years to include this Term’s decisions.

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