John Roberts has presided over the Supreme Court for nearly five years. That makes this “an appropriate time to ask what the court has become under his leadership and where the court might be going over the next five years,” said Assistant Professor of Law Troy McKenzie. With that, he kicked off a two-hour panel discussion on February 19, titled “The Roberts Court: A View from the Supreme Court Bar and the Academy.” Before a full house at Lipton Hall, McKenzie guided panelists through a range of topics, including criminal law and procedure, pleading requirements, preemption, the First and Second Amendment, and separation of powers.

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The event was sponsored by the Law School’s Dwight D. Opperman Institute of Judicial Administration. In addition to McKenzie, other NYU Law professors participating were Rachel BarkowSamuel Estreicher, Dwight D. Opperman Professor of Law and co-director of the Dwight D. Opperman Institute of Judicial Administration; and Richard Pildes, Sudler Family Professor of Constitutional Law. They were joined by King & Spalding partner and Adjunct Professor of Law Paul Clement, a former solicitor general; Morgan, Lewis & Bockius partner Peter Buscemi; and Covington & Burling partner Robert Long. Both Long and Buscemi served as assistant solicitors general, and six of the seven panelists clerked for the Supreme Court.

The Roberts Court has already made headlines with a number of its rulings, from affirmative action to campaign finance. Expect more, said the panelists. Barkow noted that the Court seems poised to strike down, or limit severely, the honest-services statute, a favorite tool of prosecutors targeting executives for fraud. Jeffery Skilling, former CEO of Enron, and Conrad Black, former chairman of Hollinger International, have both challenged the law as unconstitutionally vague.

Turning to a controversial area of criminal procedure, Barkow said it's possible that a ruling made by the Court last term could signal “the beginning of the end of the exclusionary rule.” That rule keeps prosecutors from using illegally seized evidence in a trial. But in a case known as Herring, decided in January 2009, the Court found that if a police officer has acted based on a negligent mistake, that does not require the evidence to be excluded.

On matters of financial regulation, Pildes said he’s concerned the justices don’t understand the current system, but that he doesn’t blame them because it’s so complex. As a result, though, there have been some rulings “that actually contributed to the financial crisis,” he said, pointing to one that relied on preemption to rein in state attorneys general investigating consumer fraud.

Another major case currently before the Court involving financial regulation will turn on questions related to separation of powers and the appointments clause. It involves a challenge to the constitutionality of the Public Company Accounting Oversight Board, created by Congress after the scandals at corporations such as Enron and WorldCom. Some commentators have worried that if the PCAOB is struck down, it will eliminate a key tool for policing corporate fraud. Barkow said that, regardless of her views on the merits of the cases, if the Court rules in favor of Skilling and Black and against the PCAOB, “it wouldn’t surprise me if there's some public backlash against the Court because of the impression that the Court is siding with big business and not sufficiently attuned to the economic crisis.”

The Citizens United case, voiding restrictions on corporate and union political spending, has perhaps been the most controversial Roberts Court decision to date, but panelists kept discussion of it to a minimum to focus on other subjects. Still, they did touch on campaign spending in judicial races, with Pildes noting that the role of private money in U.S. elections raises "huge structural issues."

Posted February 23, 2010

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