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Parents as Hubs

In her provocative article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, Professor Melissa Murray offers a much-needed corrective to the view that families are “autonomous islands” and argues that the law should recognize the networks of care provided by nonparental caregivers. I wholeheartedly agree with Professor Murray that the law should support families in providing care. I am also deeply sympathetic to the claim that family law is overly reliant on binary opposites—here, the mutually exclusive categories of parent and legal stranger—that do not capture the complex reality of family life. And I applaud Professor Murray’s initiation of a conversation about these concerns.

To advance that conversation, I want to engage with a central aspect of Professor Murray’s argument: the nature of the recognition she argues that the law should provide for nonparental caregivers. Two basic paradigms seem likely. First, we might understand recognition to be simply cognizance of and greater attention to the care provided by nonparents. Once we recognize the network of caregivers, it may be possible for the law to support that network in a variety of ways. By contrast, we might understand recognition to mean direct legal protection of the relationship between a nonparental caregiver and a family.

Now We Are Six: The Emerging Roberts Court

The Roberts Court has now completed its sixth year. This benchmark invites comparisons with earlier Courts. Earl Warren was appointed as Chief Justice in 1953. It was not until nine years later, in 1962, that the Warren Court fully emerged. That was the year in which Felix Frankfurter left the Court, Arthur Goldberg took his place, and the balance on the Court tipped to the more liberal justices. Opinions from the mid sixties—Gideon v. Wainwright (1963) and Reynolds v. Sims (1964) come to mind—mark the Warren Court at flood tide.

William Rehnquist was confirmed as Chief Justice in 1986. Again, it was about nine years, in 1995, before the Rehnquist Court emerged full blown. Rehnquist, so often a lone dissenter before 1986, now had company in the likes of Antonin Scalia and Clarence Thomas. Thus, in the mid nineties, the Rehnquist Court was making its distinctive mark on the Court’s jurisprudence. Illustrative are United States v. Lopez (1995), the first time in sixty years that the Court had declared an act of Congress to be beyond that body’s power to regulate commerce, and Agostini v. Felton (1997), one of a series of cases in which the increasingly conservative Court began dismantling the wall of separation between church and state. Now comes the Roberts Court. Until the appointment of John Roberts as Chief Justice, there had been no vacancy on the Court for eleven years. Then a succession of events changed the face of the Court. Since 2005, we have seen the departure of four justices—Rehnquist, O’Connor, Souter, and Stevens—and the arrival of four new justices—Roberts, Alito, Sotomayor, and Kagan. It has now been six years since Chief Justice Roberts took his seat. Recalling the stories of the Warren and Rehnquist Courts, are we two thirds of the way through another nine year cycle? Is the Roberts Court beginning to take shape? What can we say about this Court?

Out of Infancy: The Roberts Court at Seven

Seven years can see the Supreme Court travel a long way. In 1935 the Court invalidated the National Industrial Recovery Act, a centerpiece of the New Deal’s efforts to combat the Depression. This was but one of a series of cases in which the Court sought to entrench old notions about government’s role in regulating the nation’s economy. Seven years later, the Court (seven of whose members had been appointed since 1935), decided Wickard v. Filburn, upholding the Agricultural Adjustment Act’s penalty imposed on a farmer who grew wheat for consumption on his own farm. In seven years, the Court had gone from close judicial oversight of Congress’s decisions about the national economy to something close to complete deference.

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