This chapter in Business and the Roberts Court provides an empirical analysis of the Roberts Court’s decisions in business-related cases in comparison to its predecessors. At an aggregate level, the empirical analysis in this chapter indicates that the Roberts Court can be accurately characterized as business friendly. It would not be accurate to characterize the Roberts Court’s record as a sharp break from the past. To the contrary, the record is best viewed as a continuation of a long-term trend that was initiated by Nixon’s appointees to the Court, fully entrenched by Reagan and Bush’s appointees, and accepted by Clinton’s appointees. In this sense then, the Roberts Court’s predisposition toward economic and business interests is best explained by understanding the relationship of the Court to the broader political regime within which it operates and where it is situated in political time.

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In The U.S. Supreme Court and New Federalism, Christopher Banks and John Blakeman examine the relationship between the political construction of “New Federalism” and the U.S. Supreme Court’s federalism jurisprudence. The analysis in the book is both comprehensive and focused: it is comprehensive in the sense that it considers the development of federalism from a broader historical perspective, but it also focuses on key developments in the Supreme Court since the mid-1990s under Chief Justices William Rehnquist and John Roberts. Scholars interested in federalism, the Supreme Court, and constitutional law will find this book a valuable resource on the modern Court’s role in debates over the boundaries between federal and state power. After a brief introductory chapter, Chapters 2 and 3 trace the evolution of federalism across American history, with a particular emphasis on the development of “New Federalism” in the administrations of Presidents Richard Nixon and Ronald Reagan. Earlier periods of American history were characterized primarily by the centralization and consolidation of power at the federal level, especially with Reconstruction and Economic Nationalism in the late nineteenth century (pp. 36–44) and the New Deal and welfare state of the mid-twentieth century (pp. 44–51). The authors chronicle how Republicans began to advocate for New Federalism as a way of returning some level of authority to the states. Initially, during the first term of the Nixon administration, a document titled “New Federalist Paper No. 1” was circulated under the pseudonym “Publius” (the true author was William Safire, Special Assistant to the President at the time) (p. 51). The document made a number of arguments for securing “both national unity and local diversity” (quoted at 52). For the Nixon administration, these goals were pursued through mechanisms such as revenue sharing and block grants. The Reagan administration also advocated for New Federalism, but moved in a direction that emphasized, at least rhetorically, limiting federal power and “devolving” power to the states.

Polarized parties, politics, and policies at the federal and state levels of government continue to affect the nature of federalism and intergovernmental relations in the United States. Although polarization and fragmentation are prevalent, there are important instances of cooperation and collaboration. But bottom-up state activism has yielded polarized policies across the states in important issue areas such as same-sex marriage and marijuana policy. And even as states collaborate on implementation of the Common Core standards for K-12 education, the rhetoric remains politicized. The effects of polarization have also been significant for fiscal policies and budgeting. We conclude that, even as states push forward their agendas in light of a gridlocked national government, federalism faces continued challenges, remaining fragmented in both theory and practice.

Intense party polarization at the state and federal levels has hindered the adoption and implementation of numerous policies. One of the most important ways we see "fragmented federalism" is in the patchwork of policies across the country, created by factions and implemented in fragments across and within conflicted institutions throughout 2012-13. Implementation of various policies-notably education and health care-has been plagued by partisanship, pushback, and uncertainty. Operating under conditions of fiscal stress and a federal budget plagued by roadblocks has further complicated planning and program implementation at all government levels. Finally, Supreme Court decisions continue to contribute to the fragmented nature of federalism by alternately protecting state sovereignty from federal intrusion and at other times endorsing broad federal preemption of state laws.

In this paper, we propose a comprehensive technique to accurately measure the various options judges have when exercising their power of judicial review. We begin with a discussion of the problems with the way judicial review has been conceptualized, namely as a dichotomous — uphold or strike down — choice. We then propose a new way to operationalize judicial review. Our nuanced measure considers both narrow and broad variants of upholding or striking behavior. We identify five distinct categories: (1) Uphold Broadly, (2) Uphold Narrowly, (3) Strike Down As Applied (4) Strike Down On Face Narrowly, and (5) Strike Down On Face Broadly. We also demonstrate how different combinations of these categories can help measure different conceptualizations of judicial restraint – conventional judicial restraint, judicial minimalism and passive virtues. We then explicate our measure through a detailed examination of illustrative Supreme Court decisions for each category. We also present results from data we have coded for all of the decisions of the Rehnquist and Roberts Courts from the 1994 term through the end of the 2011 term involving judicial review of federal law. Ultimately, we suggest that our more nuanced measure of judicial review will help us better understand judicial decision making, particularly as it relates to separation-of-powers questions and the broader impact of decisions of lawmaking and policymaking in Congress and the executive branch. Understanding the choices justices face when voting to dispose of a case will also help our understanding of choices justices make in the decision-making process. We conclude that the Roberts Court has become a more minimalist that its predecessor, the Rehnquist Court, primarily through exercising what Alexander Bickel termed, "the passive virtues."

The signature developments in intergovernmental relations and federalism in 2011--2012 were generally found at the state and local levels. Strapped for funds to balance their budgets, states and local governments have made significant cutbacks, taken legal risks, renegotiated labor union contracts, and rejected federal aid. Conversely, subnational governments have created jobs and taken the lead in various policy areas. The U.S. Supreme Court showed strong support for state sovereignty claims, which could perhaps encourage further the bottom-up activism by state and local governments. The president and his administration made deft use of executive powers to influence public K--12 education reforms and energy and environmental policy, but much of the year was spent in budget wrangling over how to reduce the mounting federal debt. Copyright 2012, Oxford University Press.

Political scientists have long rejected the old law and politics dichotomy and recognize instead that law and court decisions are inherently political in numerous ways. Still, courts are not the same as executive and legislative institutions, and law is not simply a synonym for politics or policy. Law and courts are distinct and yet connected to political processes and policy outcomes in complex and nuanced ways. The question for law and courts scholars, then, is how and why do political actors (with seemingly increasing frequency) turn to law and the judiciary to influence public policy, and what are the impacts of infusing law and courts into the US political process? The three recent books under review help to answer these questions.

In the mid-to-late 1990s, media attention intensified around the issue of racial profiling. The increased attention was partially due to concerns that law enforcement were biased and targeting members of minority groups, and that incarceration rates were racially disproportionate. Literally hundreds of articles appeared on the topic of racial profiling in popular media. It is important to note, however, that while the term “racial profiling” was only recently coined, biased policing and its empirical study have much deeper historical roots, both in the United States and abroad. For the purposes of this Article, we have adopted Dr. Lorie Fridell’s definition of racial profiling: “the inappropriate consideration by law enforcement of race or ethnicity in deciding with whom and how to intervene in an enforcement capacity.” This definition is broader than many others because it goes beyond police decisions to stop or apprehend individuals predicated on either their race or ethnicity. Instead, the definition encompasses law enforcement decisions to cite, arrest, search, and use force.

The slow and jobless economic recovery, the midterm elections and the passage of healthcare reform legislation dominated the political landscape in 2010. The growing momentum behind federal deficit reduction and budget cuts provided a stark juxtaposition to the previously active federal role in stimulating the economy. Consequently, state and local budgets face significant belt-tightening. The cross-cutting impacts of these and other significant federal and state policy changes are expected to affect future cost sharing in government programs, place a higher burden on state and local governments over the long term and influence the balance of intergovernmental relations. Many of the important developments in politics, policy, and law during 2010-2011 are more notable for their potential future impact as opposed to immediate impact on American federalism.

The purpose of this research is to examine the influence of legal text in the decisions of the United States Supreme Court. The leading theories of Supreme Court decision-making posit that the Justices on the Court decide cases based primarily, or even exclusively on their 'attitudes,' i.e. ideological predispositions. Thus, according to these scholars, legal factors like precedent and plain meaning of the statutory or constitutional text are irrelevant to outcomes in the Supreme Court. Using a survey device, respondents were presented with language from statutes that have been the subject of actual Supreme Court decisions and the basic facts of the dispute that led to the adjudication. The survey instructed respondents to predict the way a judge charged with applying the plainest and most textual meaning of the legal language would apply the statute. They are also asked which outcome they believe would be the 'fairest' or 'best' outcome for each case. The analysis of the survey data is suggestive that the clarity of the law in the context of the specific facts of particular case may have a constraining effect on judicial attitudes, thus influencing the outcome of Supreme Court decisions.

In response to nationwide attention to the issue of racial profiling, numerous law enforcement agencies have reexamined their policies and collected data on the racial demographics of motorists stopped and searched by police. This article advocates a “disparate impact” framework for understanding the relationship between race and searches and seizures. Using data on the Washington State Patrol, analysis indicates that disparities in the proportions of racial minorities searched by the Patrol are likely not the result of intentional or purposeful discrimination. Additionally, factors such as age, sex, time of day, and the number of violations that motivated the stop affect the likelihood of a search.