A Transformative Era: The Roberts Court, Constitutional Interpretation, and Public Administration

• DOI: 10.1177/0095399719869992
• Date: 01 July 2020
• Published date: 01 July 2020
• Author: Stephanie P. Newbold
• Subject Matter: Articles

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Administration & Society
2020, Vol. 52(6) 862 –889
A Transformative
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Court, Constitutional
Interpretation, and
Public Administration
Stephanie P. Newbold1
Abstract
The Constitutional School of American Public Administration dictates
that the rule of law serves as the intellectual and practical foundation of
the field. One way to support the Constitutional School is to examine
how the U.S. Supreme Court works to shape the administrative state in
its own image. This article provides a thorough examination for how the
Court under Chief Justice John Roberts constitutionally protected laws
affecting gay marriage, affirmative action, abortion rights, gun ownership,
and health care while simultaneously narrowed constitutional protections
concerning voting rights, campaign finance laws, and employer mandated
contraceptive coverage. These contrasting constitutional viewpoints not
only represent a transformative era in the history of the nation’s highest
Court but also in how public administrative agencies implement the
Court’s decisions.
Keywords
U.S. Supreme Court and public administration, constitutional law, rule of
law, judicial branch dynamics
1Rutgers University–Newark, NJ, USA
Corresponding Author:
Stephanie P. Newbold, School of Public Affairs & Administration, Rutgers University Newark,
111 Washington Street, Newark, NJ 07102, USA.
Email: stephanie.newbold@rutgers.edu

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A careful study of the intellectual history of American government and public
administration illustrates the commitment made by Alexander Hamilton and
James Madison to the principle that good government could not exist without
good administration (Cooke, 1961; Rohr, 1986). A century later, Woodrow
Wilson (1887) held that administrative decision making was grounded in
public law (p. 212; see also Wilson, 1908).
In more contemporary analyses, scholars have emphasized the importance
of the rule of law and constitutional foundations to the study and practice of
public administrative management (Cooper, 2006, 1997, 2017; Hart & Witte,
1937; Lee & Rosenbloom, 2005; Moe & Gilmour, 1995; Morgan & Cook,
2014; Newbold, 2010, 2014; O’Leary, 1993; O’Leary & Wise, 1991, 2003;
Rohr, 1989; Rosenbloom, 1983, 1987, 2002, 2014; Rosenbloom, Carroll, &
Carroll, 2004; Rosenbloom, O’Leary, & Chanin, 2010; Willoughby, 1929). A
select group of public administration and legal scholars as well as political
scientists have also explored the managerial requirements associated with
running the third branch of American government (Bertelli & Lynn, 2006;
Burger, Chief Justice of the United States, 1971; Cannon, 1985; Christenson
& Wise, 2009; Constantine, 2007; Douglas & Hartley, 2003; Erickson, 2005;
Friesen, 1971; Harriman & Strasussman, 1983; Lawson & Howard, 1991;
Moe & Gilmour, 1995; Rosenbloom, 1987, 2007, 2014; O’Brien, 1985;
Scalia, 1997; Shapiro, 1998; Stupak, 1991; Tydings, 1971; Wise & O’Leary,
1991; Zinke, 1992). This literature has informed the profession of the oppor-
tunities and challenges of judicial branch governance and the importance of
state and federal courts to the administration of the democratic governance
process.
Research also examines how the Supreme Court of the United States
works to determine where the boundaries of the Constitution reside. These
boundaries influence the application of the rule of law and the incorporation
of democratic constitutional norms and values throughout the administrative
state (Bertelli & Lynn, 2006; Breyer, 2010; Christenson & Wise, 2009;
Cooper, 2017; Newbold, 2014, 2017; Rohr, 1989; Rosenbloom, 2007;
Rosenbloom et al., 2004; Rosenbloom et al., 2010; Wise & O’Leary, 2003;
Wise, 1998, 2001).
These collective scholarly efforts have ultimately led to an area of thought
commonly referred to as the judicialization of U.S. public administration
(Dimock, 1980; Rosenbloom, 1987). Scholarship in this area emphasizes
how the third branch of government sets the determinative boundaries for the
manner in which state agencies can interact with citizens, administrator pro-
grams, implement policies, and apply laws, statutes, rules, and orders in ways
that uphold the rule of law and support the democratic norms and values
embedded within the nation’s constitutional heritage (Christenson & Wise,

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Administration & Society 52(6)
2009; Cooper, 2006; Kirlin, 1996; Lee & Rosenbloom, 2005; Moe & Gilmour,
1995; Newbold, 2010, 2014; Newbold & Rosenbloom, 2017; O’Leary &
Wise, 1991, 2003; Rohr, 1989; Rosenbloom, 1983, 1987, 2015; Rosenbloom
et al., 2004; Rosenbloom, Newbold, & Doughty, 2018; Rosenbloom et al.,
2010; Wise, 1998, 2001; Zinke, 1992). These conversations have become a
vital component of the Constitutional School of American Public
Administration, particularly in terms of grounding U.S. public administration
in the rule and philosophy of law (Newbold, 2010; Newbold & Rosenbloom,
2017; Rohr, 1989; Spicer & Terry, 1993a, 1993b).
Although these ideas illustrate the value of democratic constitutionalism
and connecting public management with law, the field as a whole oftentimes
overlooks these guiding philosophical and governing principles when dis-
cussing the foundational pillars and pedagogical foci of public administration
theory and practice (Newbold, 2014; Newbold & Rosenbloom, 2014).1 In
public administration scholarship and pedagogy, we focus a great amount of
attention on applying quantitative methods, scientific processes, method-
ological trends, and statistical models to answer seminal research questions.
This has, unfortunately, come at the expense of relying on the rule of law and
democratic constitutional norms and values to address our most pressing
intellectual concerns (Moe & Gilmour, 1995; Newbold, 2010, 2014; Newbold
& Rosenbloom, 2014, 2017; Waldo, 1948; Wamsley et al., 1990).
The objective of this article is to analyze how the Supreme Court, under
the leadership of Chief Justice John Roberts, has interpreted the Constitution
in cases that are especially relevant for public administration theory and prac-
tice. Such an intellectual endeavor offers great value to the contemporary
study and practice of public administration. It is through bringing in perspec-
tives from Supreme Court cases that public administration decision makers
can find concrete means to legitimate their constitutional purpose and func-
tion within the American administrative state (Rohr, 1989, 2002). When civil
servants assert administrative decision making in defense of democratic con-
stitutional norms and values, they reinforce constitutional legitimacy for
themselves as well as in general. However, if civil servants find they do not
have a functional purpose that they can achieve constitutionally, then that
must end their discussion of policy or administrative options in any given
decision-making matter.
From a broader point of view, the public administration community needs
to play a larger role in preparing the necessary legal argumentation in litiga-
tion that concerns public sector decision making (Rosenbloom, 1983, 1987,
2007, 2014, 2015). In Gratz v. Bollinger (539 U.S. 244, 2003), the Supreme
Court dismissed administrability as a nonstarter, but for public administration,
it can be the start of a procedural or policy choice. Explaining to the courts

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what the advantages, disadvantages, and limits are in any given decision-mak-
ing process places civil servants front and center in constitutional law. As we
shall see, the University of Texas in Fisher did this quite well. It was able to
demonstrate how other approaches to undergraduate admission would not
have as substantial success as its race consciousness admissions policy.
With so much current focus on collaboration and networks in public
administration discourse, the field should not forget that participating in con-
stitutional discourse—no matter the size or scope of the organization—is
vital to the administrative state’s ability to function properly in the 21st cen-
tury. The nation’s High Court plays a seminal role in American governance as
it can command public agencies to act, or stop acting, in any way it sees fit.
Such power illustrates why we need to pay much greater attention for how the
third branch of government shapes the institutional foundations of the
American republic and its administrative institutions.
Major Themes of the Roberts Court
Appointed by President George W. Bush and confirmed by the Senate in a
78-22 vote, John Roberts assumed the role as Chief Justice of the United
States in 2005. During the past 14 years, important constitutional themes
have emerged that are especially important for public administration. Given
that the Chief Justice was only 55 years old when he became leader of the
third branch of American government, it is altogether likely that additional
themes and constitutional legacies will emerge during his tenure. With this
understanding in mind, this article is meant to address what we currently can
ascertain from this period of time.
The Roberts Court has expanded its interpretation of the Constitution in
five key ways that are not only critical for understanding constitutional law,
but just as importantly, they...