Don Daugherty, Senior Counsel at the Wisconsin Institute for Law & Liberty, joined the Chapter on August 18, 2020 at its event Recent Trends in the Roberts Court. The event was held as a webinar via Zoom.
Daugherty, an experienced appellate litigator and Federalist Society contributor, spoke on four main trends:
First, textualism has become the preferred approach to constitutional interpretation. The ‘living constitution’ approach, he said, has seemingly gone underground, citing for example Justice Kagan’s textualist dissent in Seila Law LLC v. Consumer Financial Protection Bureau. Despite this philosophical victory for conservatives, the textualist approach by the Court is not necessarily producing ‘conservative’ opinions. Most notably, he pointed out, in the landmark case Bostock v. Clayton County, in which Justice Gorsuch writing for the Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. As for future trends in textualism, he predicted corpus linguistics will play an increasing role and encouraged attendees to review a recent Federalist Society Teleforum that discussed this method.
Second, even with a clear conservative majority following the appointment of Justice Kavanaugh, Chief Justice Roberts remains a judicial minimalist. The conservative revolution many liberal court commentators have warned of, he said, has not come to fruition because of the chief justice’s preference for legal change to occur slowly. For example, in the Seila case the chief justice used a “scalpel rather than a bulldozer” when remedying the constitutionally offensive leadership structure of the CFPB.
Third, many anomalous cases, especially those dealing with administrative law, have been appearing since 2017. He noted that it is no coincidence these cases began appearing shortly after the inauguration of President Trump. He wondered whether justices will revert to pre-Trumpian jurisprudence on administrative law during future administrations.
Fourth and finally, a more robust free exercise clause has emerged and produced interesting comparisons with cases involving the establishment clause. Notable cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission and Obergefell v. Hodges are evidence of this trend. An audience member asked whether the Roberts Court may be having the same deliberations that Bob Woodward and Scott Armstrong allege took place on the Warren Court in their book The Brethren: Inside the Supreme Court. Daugherty did not attempt to opine on what was going on behind the closed doors of the Roberts Court, but noted that the simultaneous victories for religious liberty and LGBTQ+ rights were intriguing.
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