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Stagger onward rejoicing

Tag: law (page 1 of 1)

a numbers game

The Supreme Court of the United States has been busy this week (notes this SCOTUS-watcher, whose pinned tabs include supremecourt.gov). You hear a lot these days about a “polarized” and therefore somehow illegitimate court. A 6-3 court, we always hear, with six Republican appointees (Chief Justice Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett) and three Democratic appointees (Kagan, Sotomayor, Jackson). The Court has handed down nine opinions in the past two days. Let’s break down the votes, using the bold/italic formatting used above to make things clear:  

Texas v. New Mexico

JACKSON, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, ALITO, and BARRETT, JJ., joined.

Department of State v. Munoz

BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined. 

Erlinger v. United States

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion. 

Smith v. Arizona:

KAGAN, J., delivered the opinion of the Court, in which SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined as to Parts I, II, and IV. THOMAS, J., and GORSUCH, J., filed opinions concurring in part. ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., joined. 

United States v. Rahimi

ROBERTS, C. J., delivered the opinion for the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS, J., filed a dissenting opinion. 

Gonzalez v. Trevino

Per curiam decision — that is, by the whole court with no one justice writing the opinion. A rare thing, done in this case for reasons too complicated to get into here.  

Moore v. United States

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. JACKSON, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in the judgment, in which ALITO, J., joined. THOMAS, J., filed a dissenting opinion, in which GORSUCH, J., joined.

Chiaverini v. City of Napoleon

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. GORSUCH, J., filed a dissenting opinion.

This is a pretty typical set of SCOTUS decisions in one major way: only one of the decisions (Munoz) follows the 6-3 split that, we are told by almost all who write about such matters, shitposters and professionals alike, simply defines the character of the court. But as Adam Feldman has written on the invaluable Empirical SCOTUS blog, “While the justices often vote across predictable lines, less predictable individual votes often get overshadowed by decision outcomes that come down as predicted.” That is, Court observers simply ignore the decisions that don’t fit their simplistic ideological frame — it’s as though such decisions don’t happen. A decision in which the dissenters include Samuel Alito and Ketanji Brown Jackson? Unimaginable! A Court in which the supposedly all-powerful right-wingers, Thomas and Alito, are the most likely to be in the minority? Inconceivable! 

Sarah Isgur co-wrote that piece I just linked to, and Advisory Opinions, the podcast she hosts with David French, is consistently very good at pointing listeners to useful articles that explore some of these nuances, and usually very good at explaining those nuances directly.* Empirical SCOTUS, as I have said, is an excellent blog, and the place to start on any given issue or case is SCOTUSblog.  

If you have any interest in American law, these resources are worth exploring, because they can rescue you from the sheer infantilism that characterizes almost all commentary on SCOTUS, including most of what appears in such august venues as the New York Times. Our commentators are infantile because they have only one criterion for evaluating legal decisions on any level: Did this decision give me what I want? The law doesn’t matter to them, the facts of the cases don’t matter to them, legal reasoning is completely inaccessible to them. They just want what they want, and a judge who gives it to them is Good, and a judge who doesn’t is Bad. As I say: infantile. Don’t be that way.  


* Usually but not always. I have one major beef with the podcast: both hosts, but especially Isgur, use too many pronouns. I’m always hearing “it” and asking What?? Or hearing “they” and asking Who?? Isgur and French are good friends and each can often read the other’s mind, but we listeners are not so privileged — especially those of us who are not lawyers. Similarly, sometimes they’ll say of a given case “It’s pretty obvious where this one is going” — but then they don’t say where! Or they’ll say “So this one was 7-2” without saying which way it went. I think they’re assuming that their listeners are reading the opinions, or at least reading the news, before listening to their podcast, and while sometimes that’s true for me it isn’t always. I learn a lot, but I often find myself confused as I listen, and unnecessarily so. Sarah and David just need to slow down sometimes and establish the basic facts of a given case for their audiences before going on to their analysis. Isn’t that something good lawyers always do for juries and judges? 

Legal Sauce for the Legal Goose

From an an interview with Jill Lepore:

I’m working on a long book about the history of attempts to amend the Constitution. And on the one hand, we have a Constitution that has a provision that allows for generativity and invention and adjustment and improvement and alteration and remedy and making amends, and all of these wonderful, beautiful ideas that we associate with the idea of the future. And yet, we live in a world where we can’t actually use that provision because our politics are so overridden with the idea of the past. Consider the Supreme Court’s history-and-tradition test, under which we can’t do anything that doesn’t derive from the past. The week that we’re speaking, the Supreme Court is hearing oral arguments on the question of whether people who have restraining orders against them due to domestic abuse can be prohibited from buying or owning weapons, and the test that the Supreme Court uses is to ask: “Was there an analogous law like that in 1787?” That is plainly nuts. In that sense, we are held hostage by the dead. 

This is a mess. Lepore means not “history and tradition,” but “text, history, and tradition” (THT for short) — see e.g. this article. (THT may or may not be a coherent model of interpretation. One complication, raised by some legal hermeneuts, is whether “history” and “tradition” are always compatible: sometimes legal tradition can be shown to be indifferent to or ignorant of the relevant history. But we won’t get into that here.) In a far more important error she is confusing the THT standard of interpretation with a different one, originalism: “Was there an analogous law like that in 1787?” is not a THT question but a question about original meaning. Originalists don’t care much about how their judicial predecessors have interpreted the law. They care primarily about what the text’s original public meaning was. They think that that should be the essential interpretative canon. (Originalism can sometimes be in tension with textualism, but that’s another matter to ignore for now.) 

So Lepore is writing “a long book about the history of attempts to amend the Constitution” but doesn’t have even the most elementary knowledge of the rival schools of legal interpretation. We just have to hope that she learns as she goes along. 

But let’s continue by posing a hypothetical. Suppose Donald Trump becomes President again; suppose also that he has a majority in the House and Senate. In light of what he says is an unprecedented influx of dangerous illegal immigrants, Trump declares a State of Emergency and invokes the Alien Enemies Act. (That might have its own interesting legal consequences, but let’s set those aside for now.) Then Congress, with the President’s support, passes a law deeming criticism of the President’s policies in this time of Emergency a form of sedition, to be punished appropriately. The law is challenged and the Supreme Court rules that the law violates the First Amendment’s protections of freedom of the press. Some of the justices employ THT principles to articulate their case, and some of them use originalist canons, but they agree on the decision. 

“That is plainly nuts,” Trump then says. “We’re being held hostage by the past. We’re looking to achieve generativity and invention and adjustment and improvement and alteration and remedy and making amends, and the Courts are getting in our way!”

And Jill Lepore would have to agree, wouldn’t she? 

The answer is: No, of course she wouldn’t agree. Because, we would learn, many of the legal protections that Lepore admires, reveres, and relies on were also made in the past. Indeed, any existing law is by definition the product neither of the future nor the present but the past. If existing laws prevented her from being arrested and tried for sedition with (say) her New Yorker articles used as evidence against her, she would not feel that anyone was being “held hostage by the past,” but rather that the Founders, in making the Bill of Rights, had shown remarkable foresight, wisdom, and commitment to freedom. 

So Lepore’s actual position is not “We should not be held hostage by the past,” because that would be to say that we should not have any laws. What she means is something more like this: “It should be easier for us to change the laws to get what we want.” But — the eternal question returns — who are “we”? And it’s obvious that by “we” Lepore means “people who share my politics.” Which would be fine if people who share Lepore’s politics are the only people who will ever be elected to political office in this country. But they aren’t. If we ever get a MAGA President and a MAGA Congress, and they set out to implement their vision of “generativity and invention and adjustment and improvement and alteration and remedy and making amends” — another word for “making amends” is “retribution” — then you can bet that Lepore would be one of the first people insisting that those political ambitions be forcibly restrained by law, i.e., that they be “held hostage to the past.” 

I suspect that Lepore was formed in an environment in which leftish people like her wanted change, which is good, while people on the right wanted sameness, which is bad. She hasn’t adjusted her thinking to the rise of MAGA populism, which wants change as much as she does, and feels the restraint of existing law and legal interpretation as much as she does. They just want different changes than the ones she prefers. MAGAworld ain’t conservative.  

Basically what I’m saying is: Jill Lepore hasn’t thought this through. She hasn’t thought it through because — here again she is like her MAGA counterparts — she lives in an intellectual monoculture. And one bad consequence of living in an intellectual monoculture is that it makes you incurious. THT, originalism, whatever, it’s all the same to people who want the same changes and don’t like having their desires thwarted. 

People whose political desires are thwarted by judges are always quick to declare the legal system illegitimate. Today it’s leftists who think the Supreme Court lacks legitimacy, but in the Clinton era it was the right that felt that way — and in both cases the feeling arose directly and uncomplicatedly from disliking judicial outcomes. But there’s a lot more to the evaluation of the judiciary than looking at outcomes. It would be nice if a distinguished historian writing a book about attempts to amend the Constitution knew that.  


P.S. The domestic-abuser-weapon-ownership case that Lepore mentions is United States v. Rahimi. I think that this situation should be and will be decided in the way that Lepore prefers, but if you read some of the material I’ve linked to you’ll discover why the question has made it all the way to SCOTUS. “Why is this even a thing?” is usually an exclamation rather than a question, but if you really ask you can learn a bit. 

adjusting expectations

One thing we’ve learned over the past few years is that lawyers who are good on social media and television aren’t necessarily good in the courtroom. In fact, the very traits that make a good media lawyer — bold assertiveness, hardass rhetoric, creativity with insults — not only don’t work in the courtroom, they are often forbidden in the courtroom. People watch a lawyer perform on TV and think “Wow, I wish I could get that guy to represent me” — well, be careful what you wish for. Hire a lawyer in haste, repent at leisure — in an orange jumpsuit. 

But there’s another side to this distinction, one that works in favor of defendants, not against them: People are convicted all the time in the court of social media opinion who would never be convicted in a courtroom. In jury trials, the defense attorney only has to get one holdout. Another way to think about that, in relation to a very famous defendant: around 35% of Americans strongly support Donald Trump, while a single juror is only 8% of a jury. If you’re Donald Trump’s defense attorney and the prosecutor has an iron-clad case against your client, you only need to have gotten one diehard Trump supporter — probably someone smart enough or devious enough to disguise his or her passion — onto the jury, and your guy walks. 

And that’s if the prosecution has an ironclad case. What if the case isn’t ironclad? What if there’s room for doubt? Then you don’t even need a Trump supporter: you just need one person to take seriously what the judge tells the jury about our legal system’s presumption of innocence. Moreover, as Ken White has explained, prosecutors have to prove, not just suggest, that Trump explicitly intended to overthrow a legal election, not that he ranted and raved, or that he had a reckless disregard for truth. Everyone, including his strongest supporters, knows that he has a reckless disregard for truth, but that’s not a crime. And, given his long history of refusing to allow any significant duscussions to be put in writing, he may well be able to make a strong case that he was only acting on advice of counsel. (A defendant who makes such a plea gives up attorney-client privilege, but if nothing is in writing, then that may not hurt him. We’d just end up with conflicting bald assertions. Former attorney says X, former client says not-X.) 

This is why prosecutors offer plea deals: Jury trials are a kind of judicial Russian roulette. They will not want to offer any plea deals to Donald Trump, but in the end I suspect that that’s what they’ll do. And I also suspect that Trump will refuse to accept the deal, preferring take his chances in court. 

So, to people who read the news and see all these co-conspirators copping pleas and think that justice is finally coming for Orange Man: maybe you should adjust your expectations? Like you, there’s nothing (aside from peace in the Middle East) that I’d more like to see than Donald Trump cleaning toilets in prison. But unlike you, I don’t believe it will happen. Based on my understanding of the actual law, not how things are discussed on social media, I figure that there’s less than a 15% chance of his ever being convicted of anything, and a near-zero chance that he’ll ever serve time. Alas. 

more on SCOTUS and university admissions

Just a few random thoughts about the Harvard opinion. (On this blog I tend to avoid opining on current events, but I am endlessly fascinated by the law, by legal reasoning, and by the various strategies of legal interpretation. As Stanley Fish discovered a long time ago, there’s much overlap between literary and legal interpretation. I caught the bug from him.) 

In Sotomayor’s dissent, she describes the majority opinion in this way:

Today, the Court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality in college admissions. That interpretation of the Fourteenth Amendment is not only contrary to precedent and the entire teachings of our history, see supra, at 2–17, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.

The problem is that this description is wrong. Indeed, later on she walks some of this back, admitting that “The majority does not dispute that some uses of race are constitutionally permissible. See ante, at 15. Indeed, it agrees that a limited use of race is permissible in some college admissions programs.” So the majority opinion does not demand “indifference to race” (even if Justice Thomas would probably like it to).

But unless I missed it — and I may have; her dissent is lengthy — she doesn’t walk back the baldly false claim that the majority holds to “the illusion that racial inequality was a problem of a different generation.”

Thomas in his concurrence: “I, of course, agree that our society is not, and has never been, colorblind.” Gorsuch in his concurrence: “In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work remained to be done — and much remains today.” Kavanaugh in his concurrence: “To be clear, although progress has been made since Bakke and Grutter, racial discrimination still occurs and the effects of past racial discrimination still persist.“ (Probably not great for collegiality when one justice forcefully accuses her colleagues of holding views that they have explicitly disavowed. It’s disappointing to see Sotomayor writing in such open disregard for the truth of her statements — but that’s the world we live in.) 

Only Roberts, writing for the Court, doesn’t make any such statement, because in his legal reasoning it doesn’t matter. Racial inequality could be better than it used to be, about the same, or worse — it doesn’t matter. The only thing that matters is whether the policies employed by Harvard and UNC are legally justifiable. That’s his whole argument.

By contrast, what matters to Sotomayor is that the policies work:

The use of race in college admissions has had profound consequences by increasing the enrollment of underrepresented minorities on college campuses. This Court presupposes that segregation is a sin of the past and that raceconscious college admissions have played no role in the progress society has made. The fact that affirmative action in higher education “has worked and is continuing to work” is no reason to abandon the practice today.

Justice Jackson’s dissent operates under a similar logic: racism is an ongoing social problem, these policies are remedies for racism, therefore these policies are justifiable. But that’s a strange argument for a jurist to make. Many practices work — I could list a thousand tactics police departments have used to reduce crime — but that doesn’t make them legal. So these arguments by Sotomayor and Jackson seem to be outside the scope of their duties. But then, the same is true of Thomas’s dissent, which devotes a great deal of time to arguing that such policies do not work, do not accomplish their goals. That’s actually the chief burden of his concurrence, in which he directs much of his fire towards Jackson: You think policies like this help people like us, but they don’t

The funny thing about all this is that Harvard and UNC in their briefs and oral arguments explicitly denied that their policies attempt to remediate the consequences of past and ongoing racism — they say that it’s all about creating “diversity.” They did so because SCOTUS precedent wouldn’t have worked in their favor if they had admitted that remediation of injustice is their goal. (Too long a story to get into here.) But the fact that, except for Roberts, the justices largely ignore the explicit justification and instead argue about the role that university admissions play or do not play in remedying injustice indicates that they know what the real reasons for these policies are.

Again and again Sotomayor and Jackson say Racism is bad, why is the majority denying that racism is bad? And again and again the majority say, Of course racism is bad, but our task is not to end racism, our task is to decide this case. (Kagan’s silence on this case is disappointing, since she joined Sotomayor and Jackson, and is an infinitely superior thinker and writer. My guess is that she has her own reasons, quite different from Sotomayor’s and Jackson’s, for dissenting; I’d like to know what they are.) 

If even Supreme Court Justices don’t know what their job is, how can the rest of us be expected to? Representative Alexandria Ocasio-Cortez has been tweeting that if the court really believed in color-blindness it would have ended legacy admissions. But nobody brought a suit against legacy admissions. Does AOC really think that the Supreme Court can just decree at any time the end of any practice they think unjust? Actually, she might; it’s perfectly possible that she has no idea how the Supreme Court, or the legal system more generally, works. But I think it’s slightly more likely that she’s just performing rage for her social media audience. That’s perhaps to be expected. What’s less expected is for Supreme Court justices to be doing the same thing. 

reading SCOTUS

Some facts: 

  • Very few Americans even know what the Supreme Court does; fewer still care. 
  • Not all those who care know. 
  • Among those who care, 99% — including every single journalist in America — have one simple criterion for evaluating SCOTUS decisions: If they like the outcome, it’s a good decision; if they dislike the outcome, it’s a bad decision. 
  • It’s utterly impossible to make such people understand that the Supreme Court always should be and often is bound to issue decisions based on the Constitution and existing law (when such law is itself consistent with the Constitution); sometimes justices issue or endorse judgments they’d rather not issue. 

I’m here for the tiny fraction of 1% of Americans who can grasp that the interpretation of law, including the Constitution itself, is very difficult, especially when you have more than 200 years of precedent to reckon with. Often precedents are inconsistent with one another; previous Supreme Court decisions can be unclear, some of them right from the beginning and others in light of social and political developments that came after they were issued; very few cases make it to the Supreme Court if there are not defensible claims on both sides — if they were easy, they’d have been settled in lower courts, and SCOTUS wouldn’t have agreed to hear them at all. 

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is a fascinating case, and the opinions, concurrences, and dissents — all 237 pages of them — provide an extraordinary education in the social as well as the legal consequences of hundreds of years of American racism, and in the enormous complications introduced into our system by the arrival in America of large numbers of people who are neither white nor black.

(I’m setting aside, for the moment, Native Americans, who have been a dramatically special case from the beginning — as can be seen in SCOTUS cases from this very term, most notably Haaland v. Brackeen. See this NYT piece on Justice Gorsuch’s passionate commitment to Native American rights.) 

I don’t know how you could read the Harvard/UNC case and think that these matters are easily resolved. Those who can’t be bothered to read the details of the case may well find it easy, but then, most issues on most subjects are easy to the uninformed. This is one of those cases in which every argument (opinion, concurrence, dissent) seems convincing — when read in isolation from the others. 

I’m working my way through the whole thing, and already have a thousand thoughts. I may report later. But in the meantime, I would just encourage those of you who haven’t read the case, and especially those of you who won’t read the case, to give up the luxury of having an opinion about it. 

Counterman implications

IMG 0127

Arguing with Supreme Court opinions, as one does — in this case Counterman v. Colorado. Now, let me be quick to say that the comment I am making above is really irrelevant to the case, because almost nothing in the opinion or the dissent is about what Counterman did or didn’t do — it’s almost exclusively an in-house debate about what criteria should be used to determine whether given speech-acts are or are nor protected by the First Amendment right to freedom of speech. Basically, the judgment of the Court could be summarized thus: “Hey Colorado, you went after Counterman by claiming that he was making ‘true threats’ and further arguing that one should use a reasonable-person standard to decide what makes something a true threat, but you went about it all wrong. The guy may well be guilty of something, but the particular argument you made against him is inconsistent with First Amendment protections, so we’re going to vacate your decision and send it back to you. Please do better in the future.” So now Colorado has to decide whether to try Counterman again using a different set of standards. 

I think this decision will be really consequential in the long term. For now just a handful of thoughts: 

  1. Kagan’s opinion is poorly-reasoned and — this is really surprising, because she’s usually the Court’s most elegant stylist — poorly written. It’s a tired opinion: when she acknowledges Barrett’s dissent she claims that one argument “falls flat” without saying why it falls flat, and claims that one case Barrett invokes is a “poor analog” without saying why it’s a poor analog. 
  2. I think this may be because the opinion simply tries to do too much. (This is Sotomayor’s complaint in her partial concurrence: You could have just stopped after declaring the “recklessness” standard the proper one to apply here.) Kagan gets deep into the weeds by looking at several different standards that might be applied in different contexts to determine what forms of speech are unprotected by the First Amendment. Barrett’s dissent also gets into those weeds, but invokes different standards than the ones that Kagan prefers. After a while the Counterman case altogether disappears from view. 
  3. I don’t think the majority opinion is intended to empower stalkers, harassers, and trolls, but that’s exactly what it will do. This is certainly Barrett’s view: “The Court’s decision thus sweeps much further than it lets on.” And this will lead to more bad behavior, especially online, and future legal cases that … 
  4. … the Court’s decision here will not help to decide. The most important conclusion to be drawn from this opinion is that the Supreme Court’s free-speech jurisprudence is a total mess. Kagan clearly wants to use Counterman in order to sort through the complexity of previous cases and bring order to the jurisprudential record. But there is no order in the jurisprudential record, and in the midst of the confusion a great many bad actors are going to think themselves free to be as nasty as they want to be.  
  5. The primary losers here will therefore be women — women like Coles Whalen, whose experience of relentless harassment by Billy Counterman was the origin of this case. And for what it’s worth, I agree with Barrett that this is an unnecessary loss:

The bottom line is this: Counterman communicated true threats, which, everyone agrees, lie outside the bounds of the First Amendment’s protection.” Ante, at 4. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Ante, at 2. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.

more on Korematsu

The other day I mentioned some famous Supreme Court cases that were influenced by public opinion. I had forgotten that a few years ago I wrote a post, no longer online, about one of the most important of them. I’m reposting it here, with minor edits. 


Let’s take a look at one of the most widely condemned of SCOTUS decisions, Korematsu vs. the United States. In Korematsu the court allowed the practice of evicting United States citizens, often native-born citizens, from their homes and moving them away from the West Coast simply because they were of Japanese descent. The vote was 6–3, and each of the justices in the majority was appointed by President Roosevelt, the man who issued that order. (In a separate but closely related ruling, issued on the same day, the Court ruled that such citizens, though they could be forced to leave their homes, could not be “detained,” thus depriving the internment camps for Japanese-Americans of legal sanction.)

The chief interest of Korematsu, for today’s reader of the history, is the dissent by Justice Robert Jackson, later to become the Chief Prosecutor at the Nuremberg Trials. In the first stage of his dissent — which you may see in full by going here and scrolling aout three-fourths of the way down — Jackson points out that Fred Korematsu was a natural-born citizen of the United States whose loyalty to his country had never been questioned by anyone. He was merely living and working in the place of his birth (Oakland, California) but was by the Executive Order obliged to turn himself in to military authorities — an obligation that he would not have faced had he been “a German alien enemy, an Italian alien enemy, [or] a citizen of American-born ancestors, convicted of treason but out on parole.” Yet he was different from those others “only in that he was born of different racial stock.” Jackson continues:

Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one’s antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that ‘no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.’ Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.

This point would have been sufficient in itself to declare Roosevelt’s order unconstitutional, but Jackson discerned a larger and greater issue at stake:

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.

Jackson’s point here is exceptionally acute: this is not as matter of rationalizing — that is, giving an implausible intellectual account of — the order, but rationalizing the Constitution itself. Which is a far more dangerous move.

The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we [i.e., we Justices of the Supreme Court] review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

People are often automatically dismissive of “slippery-slope” arguments, as though no slopes are ever slippery; but once a metaphor is dead it’s dead. Justice Cardozo’s phrasing may be more useful: “the tendency of a principle to expand itself to the limits of its logic.” This tendency is almost inevitable in SCOTUS decisions, because of the power of precedent: only rarely is a decision walked back; rather, a “passing incident” very easily and naturally “becomes the doctrine of the Constitution” when justices see different situations in which it can be applied. All the pressure is on one side, towards expansion rather than contraction of the principle.

Such expansion of a principle is all the more likely to happen when popular opinion, especially elite popular opinion, is also strongly on one side. FDR’s decision to move Japanese-Americans from their homes was quite popular (as were the internment camps) and eight of the Justices had the further pressure of owing their positions on the Court to the Roosevelt. What the Justices needed was a jurisprudential principle substantial enough to make a counterweight to those pressures. All three of the dissenting judges had that principle, but it was most fully developed in and articulated by Jackson.

Not long before his death Justice Antonin Scalia was asked, by law students at Santa Clara University, which Supreme Court opinion he most admired. He named Jackson’s dissent in Korematsu.

public opinion

People keep talking about the Supreme Court being “out of step with public opinion.” You know when the Supreme Court was totally in step with public opinion? When it decided Korematsu. And when it decided Plessy v. Ferguson.  You know when it was out of step? When it decided Miranda v. Arizona. So some of the worst decisions ever made by SCOTUS came when the justices heeded public pressure, and some of the best when they ignored it.  This wasn’t always true; but sometimes. Often enough to be a matter of note.

Many people decry SCOTUS as “unaccountable,” which simply means that justices can’t be removed when they make unpopular decisions. But Justice Robert Jackson’s dissent in Korematsu, one of the greatest moments in the history of the Court, would probably have led to his removal if justices had been thus “accountable” — which in turn would have denied us his vital role in the Nuremberg trials and also his later SCOTUS opinions, for instance in Youngstown Sheet & Tube Co. v. Sawyer, a case that did much to set limits on Presidential power. Many other cases involving many other unpopular justices could be cited. 

So be careful what you ask for. Public opinion won’t always be flowing in your preferred direction. In my view, the court is already — and probably always has been — too sensitive to public opinion. I’d prefer it to make more decisions that people don’t like, and to tell those people that if they want something different they should elect representatives who, instead of auditioning for careers on TV news, will pass better laws.  

my proposed law

“Any online platform and/or application that delivers content to users may deliver only content explicitly requested by said users.” 

That’s it. No algorithms, no autoplay, no “You may also like,” no “Up next.” Only what human beings (AKA “consumers”) choose. Now you don’t have to ban TikTok, and you will reduce the power that Facebook, Twitter, and all the other social-media platforms have over the minds and emotions of their users. It will even reduce, though not eliminate, the ability of Spotify and other streaming platforms to ruin music. 

(I’m sure many other people have made this suggestion.) 

Stanford Law School Dean Jenny S. Martinez

I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks — that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry. Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work. Lively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty. Observance of this duty matters most, not least, when we are convinced that others haven’t. 

I think Dean Martinez has navigated this mine field about as well as it could be navigated, and in the process has made some vital salient points about the nature of legal education — and of true education more generally. 

Nick Catoggio:

Dominion might win its suit notwithstanding the general truth of what Kevin [Williamson] said in his piece, that “nothing short of a signed and notarized statement of intent to commit libel seems to satisfy judges or juries” in modern defamation litigation. What the company aimed to show in its nearly 200-page brief is that, by word and deed, Fox personnel from management on down did all but openly confess their intent to commit libel. They acknowledged privately that Trump’s conspiracy theories were false; they were warned repeatedly that those theories were false; they pressed ahead on the air with the big lie anyway.

But even if Dominion loses, it’ll have extracted a measure of moral compensation. Whatever else one might call programming that suppresses the truth if it might offend the audience, “news” ain’t it. (“Propaganda” sounds about right.) No one who reads Dominion’s pleading will ever look at Fox the same way. That’s why the company filed it. 

I’ve been reading the pleading and … it’s something else. If Dominion doesn’t win this suit, then there is no law against defamation in this country, and “news” outlets can say anything they want about anyone at any time with absolute disregard for the truth. Which, come to think of it, is what they do already, I guess. Does anyone really believe that the NYT didn’t demonstrate “actual malice” against Sarah Palin when it repeatedly lied that she played a role in Gabby Giffords’ shooting? Of course not. It’s just that a lot of people believe that Palin is an official Bad Person and therefore deserves to be lied about.  

Which is why Operation Diogenes must go on! 

Franciska Coleman

In this paper, I undertake a qualitative exploration of how social regulation of speech works in practice on university campuses, and of the extent to which social regulation in practice affirms or undermines the stereotypes and caricatures that characterize the cancel-culture wars. I first summarize the two narratives that an- chor public debates over the social regulation of speech—consequence culture and cancel culture. I then describe the social regulation of speech and its five phases: dissemination, accusation, pillory, sanction and direct action. I explain how these five phases were reflected in the speech events under study and the extent to which their real-world features challenge or support the cancel-culture and consequence-culture narratives. I end by suggesting further research on the implications of this phases framework for efforts to balance universities’ dual commitments to free speech and inclusive community on their campuses. 

This is a very helpful framework for further discussion — in large part because it helps to get us out of the endless and fruitless debates over whether “cancel culture” “really exists.” I hope some confused and frightened university administrators read it. 

“One Manner of Law,” by Marilynne Robinson:

Hugh Peters, most disparaged of Puritans, wanted to exclude poor artists from taxation. He proposed that there be peacemakers appointed to settle disputes before anyone could be arrested or imprisoned. Writing as someone who was forced to flee England under the threat of persecution, and whose fellow dissenters had experienced prison and worse, he does not call for any equivalent punishment or any punishment at all for his (temporarily) defeated persecutors, but instead for an alleviation of the punitive bent in the assertion of public authority. 

A fascinating historical essay. 

My friend Chad Holley — lawyer, teacher, writer — describing a bold pedagogical decision:

If it was sage to leave well enough alone, I slipped up last month adding Solzhenitsyn’s lecture to the syllabus of a Law and Literature course I’m teaching at a local law school. Surely now I needed some intelligible comment on it, some ready defense. At least one faculty member, after all, had pushed back against the course on grounds of, well, frivolity. Fortunately, the dean who hired me had a delightfully simple view: the course would make students better people, and better people would make better lawyers. It carried the day, who am I to quibble? But for the Solzhenitsyn piece I was on my own. In the end I muttered to myself something about it offering an aesthetic that relates literature to morality, politics, and even the global order without succumbing to the instrumentalism of the savage. Eh. Close enough for adjunct work.

But did I say I added the piece to the syllabus? Friend, I began the course with it. We introduced ourselves, shared reasons for being here, covered some ground rules. Then I said, as distracted as I sounded, “Allll righty …so …” I had not anticipated just how much respect, how much admiration, I would feel for this small, diverse, self-selected group. They had read War and Peace “twice, but in Spanish,” their families had fled Armenia to escape Stalin, they were raising children, running businesses, staffing offices, nearly every one of them holding down a full-time day job while attending law school in the evenings, on the weekends. Had I really required these serious, ass-busting, tuition-remitting people to read an essay suggesting — I could barely bring myself to mouth it — beauty will save the world? What was I going to say for this in the face of their withering skepticism, their yawn of silence? 

Read on to find out. 

getting what you ask for

More familiar instances of toxic masculinity concern the wanton infliction of violence, especially the sexual kind, especially upon women and girls. Yet on the other side of the wall was, it seems, another sort of toxic masculinity — a platoon of armed and trained men who had evidently come to rely so heavily on guns and armor in lieu of courage and strength that they found themselves bereft of the latter when outdone in the former. Instead they were beset by cowardice, evidently as convinced as the shooter was that the gun really does make the man, and that outgunned is thus as good as outmanned.

In its own imagination, Texas is the land of men who would never admit defeat at all, much less surrender instantly with decent odds and innocent lives at stake: Surely its police ought to feel the highest and noblest sort of calling to valor, the type of vocation that surpasses profession and speaks to a person’s mission in life. Or perhaps those things, too, all the militarism and bravado, the heady authority and free respect, the unearned certainty in one’s own capacities provoked by so many Punisher bumper stickers and decals, had the same corrupting effect as the guns and body armor. Eventually, one either develops their own virtues or finds they’ve developed vices instead.

— Elizabeth Bruenig. The only thing worse, for a community, than what Radley Balko has famously called the “warrior cop” is a bunch of people who are cosplaying warrior cops.

Balko has often over the years pointed to the recruitment strategies of police departments, which commonly feature images of men in body armor riding in military assault vehicles. When your recruiting strategy targets people who get excited by that kind of thing, you get what you ask for — instead of, for instance, finding people who take satisfaction in serving and protecting the community. But even if you get emotionally immature recruits, you can train them in better ways. Alas, as Bruenig suggests, at places like Uvalde the emphasis seems to be on exacerbating their recruits’ vices rather than cultivating their virtues.

You have to hope and pray that the shame of Uvalde will cause police departments around the country to reflect on the kind of men they’re hiring — and the kind of men they’re making. But the rot is so deep that it’s hard to be hopeful.


UPDATE: Arthur Rizer: “So much of this turns out to be LARPing: half-trained, half-formed kids playing soldier in America’s streets and schools. Many of the thousands of SWAT-team members in this country don’t have the training and expertise to respond like they’re SEAL Team 6. It’s time to stop pretending that they do.”

Injured Parties

I have an essay in the new Hedgehog Review — behind a paywall, but shouldn’t you subscribe? Yes indeed you should. The essay is called “Injured Parties,” and it begins thus:

In 1923, the American movie star Dorothy Davenport lost her husband, the actor and director Wallace Reid, to an early death resulting from complications of morphine addiction. After the tragedy, Davenport took up the job — an unusual one for a woman in Hollywood in that era — of film producer. Starting with Human Wreckage, a movie about the dangers of drug addiction that appeared just months after Reid’s death, Mrs. Wallace Reid, as she now called herself, oversaw a series of films on pressing social issues. For instance, the third one she produced, and which she personally introduced in a prologue, The Red Kimono (1925), portrays the dark personal and social consequences of prostitution.

All of Davenport’s moral-crusading films were popular, but also controversial: Some were banned by the British Board of Film Censors and by the guardians of public morals in many American cities. The Red Kimono had other problems, though, problems related to one Gabrielle Darley. Darley was a young woman who in the second decade of the twentieth century had worked as a prostitute in Arizona for a pimp named Leonard Tropp. She fell in love with him and they moved to Los Angeles, where she gave him money to buy a wedding ring — for herself, she thought, but in fact Tropp planned to marry another woman. When Darley discovered this, she shot Tropp dead. In 1918, she was put on trial for murder, but had the great good fortune of being represented by an exceptionally eloquent defense attorney named Earl Rogers — a close friend of William Randolph Hearst — who presented her as having been, before meeting Tropp, “as pure as the snow atop Mount Wilson.” The jury couldn’t get enough of this kind of thing and enthusiastically acquitted Darley.

One of the journalists covering the trial was Rogers’s daughter, Adela Rogers St. Johns, who was already well on her way to earning her unofficial title as “World’s Greatest Girl Reporter.” (For many years she worked for Hearst newspapers, and may have reached the height of her fame in her reporting on the 1935 trial of Bruno Richard Hauptmann for kidnapping and murdering the young son of Charles and Anne Morrow Lindbergh.) She wrote a short story, based on the trial, called “The Red Kimono.” It caught the attention of Dorothy Davenport, who immediately commissioned a screenplay and started filming. The name she chose for the film’s protagonist? Gabrielle Darley. 

I describe Darley’s claim to having been defamed by the film — to being injured reputationally — and the ultimate decision of the Supreme Court of California in her favor. 

From there I go on to explore the meaning of defamation and how it has changed over time, with a particular focus on the early modern period, during which, as I learned from reading that wonderful scholar Debora Shuger, defamation was very differently understood. I indulge my suspicion that we — immured in a social-media environment for which defamation is more or less the coin of the realm — might have a few things to learn from that era, and also from Erving Goffman. Yeah, I know it sounds weird, but trust me, it all holds together. I think. Ultimately I am trying to imagine charity as both a legal and a social concept. The point of the essay is not to settle any current issues but rather, by looking into the past, to discover alternative and superior moral vocabularies with which to address our disagreements. 

Subscribe and read, please! 

One thing I don’t understand (and I’ve read a good deal of legal commentary on this issue) about United States v. Texas: The suit says that the Defendant is “the State of Texas” and that “The State of Texas includes all of its officers, employees, and agents, including private parties who would bring suit under S.B. 8,” but what does “private parties who would bring suit” mean? As far as I can tell the United States is suing unspecified people for some envisioned future action. How is that possible, unless the government has a Precog Division I don’t know about? How is is possible for any of us who live in Texas to know whether we are among the Defendants in the suit? 

no feelings may be hurt

Suppose, I asked the students, an observant Jew has a florist shop. One day, a customer, who is also Jewish, comes to the shop to say she’s getting married and would like the florist to do the wedding. “That’s wonderful,” the florist says. “Where will you get married?” The customer replies that the wedding will be at a local nondenominational church, because her fiancé is Christian, and she, the customer, isn’t very observant. The florist thinks about it and then says, “I’m so sorry, but I can’t do your wedding. It’s nothing personal; I’m sure your fiancé is a fine person, as are you. It’s just that as an observant Jew I don’t approve of interfaith weddings. For our community to survive, we must avoid intermarriage and assimilation. Please understand. There are many other florists who can do your wedding. I’ll even suggest some. But I can’t, in good conscience, participate, myself.” What result?

In posing this hypothetical, I was not so interested in how the case would come out under current law. Rather, in good law-school fashion, I was trying to show the students that these are complicated questions and that they need to consider both sides. Much to my surprise, the students were uniformly unsympathetic to the florist. There should be no right to decline services in this situation, they told me. The florist was not acting reasonably and in good faith. […]

Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.

Mark Movsesian, St. John’s Law School, New York. A fascinating case study for people who tend to think these disputes are all about the sexual revolution. As it turns out, and as I have sometimes suggested, demand for the affirmation of sexual choices may simply be an example of a greater demand, that for the affirmation of all the self’s choices. The real principles here are (a) I am my own and (b) the purpose of society is to empower and affirm my claim that I am my own.

Trump and Constitutional Law

This is a great idea for a podcast: What the Trump presidency, with its manifold eccentricities, can teach us about Constitutional law. After all, on almost a daily basis the words and actions of the President raise some question about the powers and limits of the office.

The first episode takes off from Trump’s comment about Judge James Robart,  who blocked his first attempt at an executive order banning travel to the U.S. from six mostly-Muslim countries: Trump tweeted that Robart is a “so-called judge.” According to Elizabeth Joh, the con-law professor who co-hosts the show with Roman Mars, that tweet raises the question of judicial legitimacy, which leads her to describe the famous Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer, in which the Court ruled that President Truman did not have the authority to commandeer the nation’s steel mills to serve the needs of the military during the Korean conflict. For Joh, the really important point here is that Truman, though angered by the ruling, did not question it — he acknowledged and deferred to the legitimacy of SCOTUS.

But that’s where the podcast ends, which I think is just the wrong place. The vital question that arises is: What if Truman hadn’t so deferred? What if he had said “I do too have this authority, and I’m sending in my people to take over and run the steel mills”? People talk loosely about Trump’s actions producing a “Constitutional crisis,” but that would be a Constitutional crisis. For law enforcement officials, and maybe even the Army, would have to decide whether to back the Court or the President.

Given the current President’s history of demanding that he get his way in all things, and his oft-expressed frustration (even in these first few months of his presidency) at having his will thwarted, something like that could eventually happen: that is, the Executive branch simply refusing to acknowledge the legitimacy of one of the other branches and doing what it wants to do regardless of protests. So what, within the boundaries of Constitutional law, would happen then? I’d like to see the podcast play out some of those scenarios.

judging judges

It has long been frustrating to me that the only criterion by which Americans — almost without exception — evaluate judges is: Did he or she make decisions that produce results I’d like to see? Virtually no one asks whether the judge has rightly interpreted existing law, which is of course what the judge is formally required to do. Americans — again, almost without exception — want judges to be politicians and advocates. The idea that a judge should strive to interpret existing law regardless of whether it does or doesn’t promote politically desirable ends never crosses anyone’s mind, and if by some strange chance it did, the person whose mind was so crossed would reject the proposal indignantly. Americans in this respect resemble toddlers and their own President: they evaluate everything in terms of whether it helps or hinders them in getting what they want.

This devaluation of interpretation amounts to a dismissal of the task of understanding: everything that matters is already understood, so the person who would strive to understand is not only useless, but an impediment to the realization of my political vision. To the partisan, the absence of partisanship is always a sin, and perhaps the gravest of sins.

empathy and leniency

Judge Aaron Persky empathized with Brock Allen Turner and could easily imagine what it would be like to lose sports fame (as Persky enjoyed), to lose a Stanford education (as Persky enjoyed), to lose the sort of easy success and high regard that a young, reasonably affluent Stanford graduate (like Persky was) can expect as a matter of right.  Judge Persky could easily imagine how dramatically different a state prison is from Stanford frat parties, and how calamitous was Turner’s fall.  That’s how Judge Persky convinced himself to hand such a ludicrously light sentence for such a grotesque violation of another human being.

But most people fed into the criminal justice system aren’t champion athletes with Stanford scholarships.  Most aren’t even high school graduates.  Most are people who have lived lives that are alien and inscrutable to someone successful enough to become a judge.  Judges might be able to empathize with having to quit their beloved college, but how many can empathize with a defendant who lost a minimum-wage job because they couldn’t make bail?  How many can empathize with someone more likely to sleep by a dumpster than exit a frat party next to one?  They can conceive of the humiliation of being on the sex offender registry after getting into an elite university, but can they conceive of the humiliation of being stopped, frisked, detained, and beaten with impunity because of the color of their skin?  Experience teaches that the answer is usually no.

This means that the system is generally friendly to defendants who look like Brock Allen Turner and generally indifferent or cruel to people who don’t look like him.  No high school dropout who rapes an unconscious girl behind a dumpster is getting six months in jail and a solicitous speech from the likes of Judge Persky.  Judges take their youth as a sign that they are “superpredators,” not as grounds for leniency.  If you tell a judge that they aren’t a danger to others, the judge will peer over his or her glasses and remark that people who rape unconscious girls in the dirt are self-evidently dangerous, and don’t be ridiculous.  Judges don’t think that a good state prison stretch will have too severe an impact – after all, what are they missing, really?

Ken White

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