To date, the Roberts Court has rendered three opinions that utilize empirical data to protect children. These decisions are based on social science research and “common sense” concerning children’s physical and psychological vulnerability to harmful influences, undeveloped moral character, and general tendency to make poor choices. Two opinions involved regulation of speech that may influence children to engage in harmful speech or conduct, and one opinion found that a harsh criminal penalty imposed upon a juvenile violated his Eighth Amendment rights. These opinions could indicate that the Roberts Court will continue to protect children from harmful media influences and unfair penalties based on legislative fact-finding concerning children’s physical and psychological immaturity and unsettled moral character.

Federal preemption of state tort lawsuits (especially products liability and negligence lawsuits) has concerned the Supreme Court in recent decades. Since 1992, the Court has decided at least sixteen cases involving this issue. The Roberts Court alone has handed down six such cases with the two most recent having just been decided in the 2010 term. The large number of cases has spurred discussion of the Roberts Court’s “keen interest in preemption battles.” More important than the number of cases, however, is that the Roberts Court has come to accept a particular view of tort lawsuits in its preemption decisions—one that envisions such lawsuits not as vehicles to redress “wrongs done by private parties to private parties‛ but rather as merely arm[s] of the public regulatory state.” This regulatory view of tort lawsuits may eventually affect the outcome of the Court’s preemption decisions.

The confluence of Justice Stevens’ retirement from the United States Supreme Court and the five-year anniversary of Chief Justice Roberts’ ascension provides an opportunity for a new look at the familiar debate over the relative desirability of rigid rules and contextualized, fact-specific analysis in constitutional cases. In a trio of recent First Amendment cases, the Court has stated and applied, and then retreated from, strict doctrinal rules and the refusal to defer to congressional findings that normally accompany such rules. These cases raise anew the question of the appropriateness of such rules and their durability as meaningful constraints on courts confronting difficult fact patterns. To convert into a question Justice Souter’s defense of such rules: does deciding First Amendment cases based on ‚fairly strict categorical rules‛ really ‚keep[ ] the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said‛?

When he was nominated as the seventeenth Chief Justice of the United States Supreme Court, John G. Roberts characterized the judicial role in a modest and unassuming fashion: “Judges and Justices are servants of the law, not the other way around.” Indeed, he went so far as to analogize the role of judges to that of “umpires:” “Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure every-body plays by the rules . . . .”

Thank you for inviting me to be the 2011 William Reece Smith Jr. Distinguished Lecturer. I am honored to be among leaders of the bar, the judiciary and academia, and professors and students of Stetson University College of Law, who are here this evening to pay tribute to Reece Smith and the significant role he has played in pursuing equal access to justice.

Selecting a topic for my remarks was fairly easy for me because I have spent my entire career providing legal services to the poor. Equal access to justice is a fitting topic for an address honoring Reece Smith, who has devoted his career to enhancing the availability of legal services to the poor and the disadvantaged. It is also a timely topic, as our nation continues to experience the worst economic downturn in recent memory.

The American school faces a daunting task. Like most Americans, teenagers do not enjoy being told what they can and cannot say. They also typically resent having to spend the majority of their waking hours within the schoolhouse walls. It is no over-statement to say, then, that schools walk a thin line when they attempt to regulate what these involuntary participants wish to say. The public school is in an even tougher spot. Not only must it navigate the unenviable task of managing a vocal and unwilling population, but it must also comply with the United States Constitution and its guarantee of the freedom of speech.