Theodore W. Ruger

Competing Approaches to Predicting Supreme Court Decision Making

Political scientists and legal academics have long scrutinized the U.S. Supreme Courts work to understand what motivates the justices. Despite significant differences in methodology, both disciplines seek to explain the Courts decisions by focusing on examining past cases. This retrospective orientation is surprising. In other areas of government, for example, presidential elections and congressional decision making, political scientists engage in systematic efforts to predict outcomes, yet few have done this for court decisions. Legal academics, too, possess expertise that should enable them to forecast legal events with some accuracy. After all, the everyday practice of law requires lawyers to predict court decisions in order to advise clients or determine litigation strategies. The authors thank Michael Cherba, Nancy Cummings, David Dailey, Alison Garvey, Nick Hershman, and Robin Rimmer for their assistance. Their project is supported in part by National Science Foundation grants SES-0135855 and SES 0136679. The foundation bears no responsibility for the results or conclusions.

The Elusive Right to Health Care under U.S. Law

There is no right to health care in the U.S. Constitution, but Congress has incrementally established health care rights through legislation, including laws creating Medicare and Medicaid, the Emergency Medical Treatment and Active Labor Act, and the Affordable Care Act.

Money, Sex, and Religion — The Supreme Court's ACA Sequel

In Hobby Lobby, the Supreme Court ruled that the ACA burdens the exercise of religion by imposing fines if a company does not provide insurance coverage for all FDA-approved contraception. The authors argue that this undermines the ACAs goal of universal access to health care.

The Chief Justice's Special Authority and the Norms of Judicial Power

This Essay explores an incongruity in the allocation and exercise of two different kinds of judicial discretion held by the Chief Justice of the United States. The paradigmatic type of discretionary authority that Article III judges (including the Chief Justice) possess is expressed through the mode of adjudication, and as such is constrained in important ways by procedural forms that accompany that kind of official action. Judges are constrained, to a greater or lesser extent, by formal “law,” but their discretion is additionally limited by the collective structures of the federal judiciary and also by the normative expectation that judges give express reasons for their decisions. In this sense the appointment of an Article III judge can be regarded as a form of license to exercise bureaucratic discretion for a lifetime, but to do so under certain well-defined rules. We tell judges to follow “the law,” to be sure, but we don’t rest our faith entirely on the law’s uncertain formal constraints. Instead, judges exercise power collectively, are limited to particular cases and controversies, and are obliged to give reasons for each important decision that they make. So it is for most federal judges, including the Chief Justice in his primary role of deciding cases on the United States Supreme Court. Within the Court’s core adjudicative function, the Chief’s status as “prima inter pares”—first among equals—is a well-known and generally apt description of a type of special status that is highly visible, but also limited in important respects. The Chief Justice’s adjudicative power is structured and channeled in ways very much like the other eight Justices on the Court, and, in a more general sense, is much like the authority of any judge on a multimember appellate tribunal. The Chief Justice exercises independent discretion in a formal sense when

“Our Federalism” Moves Indoors

A great deal of the US Supreme Courts federalism jurisprudence over the past two decades has focused on the outer limits of federal power, suggesting a mutually exclusive division of jurisdiction between the states and the federal government, where subjects are regulated by one sovereign or the other but not both. This is not an accurate picture of American governance as it has operated over the past half century - most important areas of American life are regulated concurrently by both the federal government and the states. The Supreme Courts June 2012 decision clearing the way for the Patient Protection and Affordable Care Act (PPACA) to move forward thus should not be regarded as an affront to state sovereignty but as a realistic embrace of state power in its active, modern form. The PPACA is infused with multiple major roles for the states, and as the statute goes into operation over the next few years, states retain, and are already exercising, substantial policy discretion.