The Inconvenience Doctrine

In a nation of stark inequalities, the Roberts Court is often portrayed as siding with the wealthy and powerful. Many scholars argue that the Court has abandoned legal principles altogether and instead simply chooses winners and losers based on the conservative majority’s political agenda. Meanwhile, scholarly examinations of the legal reasoning underlying the Court’s most impactful decisions are largely confined to specific subject areas. Such compartmentalized analyses, though, overlook broader patterns in the Court’s rulings that transcend substantive legal boundaries. This Article bridges the gap in these parallel conversations by connecting the Roberts Court’s reasoning across many legal fields with its perceived ideological biases. In making this connection, the Article reveals the Court’s use of a consistent but problematic framework, which I term “the inconvenience doctrine.” Under the inconvenience doctrine, the Court invalidates nearly any limitation on what it views as the full exercise of “core rights,” while permitting the imposition of “mere inconveniences” that make exercising a right more difficult but not impossible. Although facially neutral, the inconvenience doctrine punishes marginalized communities, who lack the resources to easily circumvent inconveniences; and it rewards the wealthy and powerful, who are uniquely able to exercise the outermost limits of rights the Court vigilantly protects. The Court’s trivialization of inconveniences is rooted in free-market economic theory, which prizes profit-seeking while rationalizing away harmful collateral effects on workers, consumers, and bystanders. But the adoption of economic theory as legal doctrine is inconsistent with the Court’s purported adherence to American “history and tradition.” This Article mines Founding-era writings, speeches, and judicial opinions to demonstrate that the Framers viewed minimization of public inconveniences as a central function of government, with courts serving as a crucial safeguard. The inconvenience doctrine thus amounts to a harmful and ahistorical shortcut around the judicial responsibility to appreciate and give weight to the real-world consequences of inconveniences. By calling out the Roberts Court’s approach, this Article provides a foundational first step toward a more pragmatic and equitable judicial philosophy.