13 Federal Courts Law Review 113 (2021)
89 Pages Posted: 18 Nov 2021
Date Written: October 12, 2021
The Roberts Court has struck many constitutional law scholars as something of an enigma. The most recent term added to this impression. Chief Justice Roberts signed on to several momentous decisions that were facially inconsistent with his own earlier jurisprudence on abortion, LGBTQ rights, and immigration rulemaking. Despite this, I argue that the Roberts Court is, in fact, principled and consistent in its legacy decisions.
What lends principled consistency to the Roberts Court is a concept that is typically used only as a slur: unilateralist decision- making. Something important is lost when painting all unilateralism with the same pejorative brush. This blind spot is revealed when focusing on the interplay between (1) the value motivating decision-making and (2) the ability of other constitutional actors to contest it. On this basis, I distinguish between two kinds of unilateralism: (a) curious unilateralism that positively invites others to contest unilateral decisions and (b) illiberal unilateralism which forecloses opportunities meaningfully to do so. The Roberts Court consistently and principledly protects the institutional requirements for curious unilateralism in the current hyper-partisan environment and purposefully avoids policy-driven consistency.
Keywords: Legal theory, constitutional law, adjudication, unilateralism
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