The Roberts Court Paradox

Authors

John C. P. Goldberg, Harvard Law School
Benjamin C. Zipursky, Fordham University School of Law

Keywords

SCOTUS; Supreme Court of the United States; John Roberts; Antonin Scalia; Roberts Court; rule of law; bright-line rules; Roberts Court paradox; notice; limited power; uniformity; judicial role; constitutional law; courts; judges; jurisprudence; law and philosophy; law and politics; legal history; litigation; public law and legal theory; justice; the rule of law as a law of rules; accountability; legal tradition; conservative

Abstract

As perhaps the most conservative Supreme Court of the past century, the Roberts Court regularly touts its commitment to traditional ideals, including the rule of law. Yet Trump v. United States seems ready to place presidents entirely or largely above the law by granting them absolute or near absolute immunity from criminal prosecutions for official conduct. And Trump is not a one-off: from judicial recusal to qualified immunity to due process decisions, the Court frequently seems to display indifference to values of accountability and impartiality that have long been thought integral to the rule of law. What is going on?

We call this puzzle “the Roberts Court Paradox.” This Essay explains how the Court arrived at this untenable position and what has led it astray. Justice Antonin Scalia’s famous essay The Rule of Law as a Law of Rules provides our starting point. It argues that judges who wish to remain true to the rule of law must aspire to decide cases by formulating bright-line rules instead of nuanced rules, standards, or balancing tests. At the core of this argument are two ideas, both facially plausible. First, bright-line rules provide individuals with fair notice of what the law is and what sanctions they face. Second, they promise to prevent appellate judges from reading their own values into the law and thereby usurping the powers of other branches. We show that the Roberts Court is where it is in large part because of this equation of the rule of law with bright-line rules.

Unfortunately, Justice Scalia’s argument withers under scrutiny, and it is especially weak as applied to constitutional interpretation undertaken by the Supreme Court. This is not only because it entirely fails to consider the centrality of accountability and equality before the law, which are both foundational to the rule of law. It is also because Justice Scalia’s “notice” and “limited power” arguments are far from compelling. While the value of notice is indeed critical in areas such as criminal law, it is much less important in constitutional law, which is primarily about power-conferring and power-constraining rules, not about sanctioning individuals for violating duty-imposing rules. And while judicial usurpation of power is indeed a rule-of-law issue, it is pure dogma to suppose that sticking to bright line rules is the only approach that can keep judges in their lane. More importantly, Supreme Court justices who create bright-line rules that preclude accountability for other branches of government are plainly abandoning the core value of limited powers, not protecting it. In sum: the Roberts Court, following Justice Scalia’s lead, has allowed its fondness for bright lines to overwhelm its duty to acknowledge the foundational place of accountability in the Anglo American legal tradition.

Recommended Citation

John C. P. Goldberg and Benjamin C. Zipursky, The Roberts Court Paradox, 94 Fordham L. Rev. 1 (2025).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss1/1