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What Hath Judicial Minimalism Wrought? Judicial Partisanship, Free Exercise Doctrine, and the Culture Wars

Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. ___ (forthcoming 2022), available at SSRN.

“What God says is best, is best, though all the men in the world are against it.” John Bunyan, Pilgrim’s Progress

Zalman Rothschild has published a wonderful empirical study of patterns of voting by federal appeals court judges and district judges in free exercise cases. A soup-to-nuts feast of data, doctrine, and dilemmas for a jurisprude or, God forbid, a regular American, the Article feeds the intellect, brings cheer to the most cynical legal realists among us, and offers a glimmer of hope to a waiting world wanting to believe—in federal courts. The Article provides evidence of a shift from longstanding relative consensus about free exercise claims to a starkly partisan pattern in judicial choices around these claims. At the extreme, in recent cases involving COVID 19 restrictions, the difference is total. Judges appointed by Republican presidents find discrimination every time. Judges appointed by Democratic presidents judges never do. (P. 3.)

Rothschild’s article arrives at a moment of scholarly ferment. Discussions of the free exercise free-for-all abound. Many parse the mysteries of court doctrine. Others offer one way or another out of a thicket of controversy and vitriol. Rothschild’s merger of a wide base of knowledge and analysis rises to the top, for my money, if you wonder what’s to be done, or if you need to be educated about the latest entanglement of free exercise doctrine with the culture war.

Free Exercise Partisanship is notable for unearthing a partisan pattern in judicial outcomes involving gay marriage, reproductive care, and COVID, three recent hot spots in the culture wars. In addition to the torn-from-the-headlines nature of his basic finding—partisan affiliation determines most outcomes in free exercise cases—Rothschild provides an evidence-rich jurisprudential critique of the Court’s free exercise work product, with particular reference to its embrace of judicial minimalism. (P. 5.) Despite the case for minimalism as a means of avoiding the Supreme Court’s engagement with divisive issues, the unsavory result in the lower courts is a partisan lottery for federal appellate panels. Free exercise in the appeals courts has little certain meaning, Rothschild shows, simply Red-judge or Blue-judge readings. Lawyers sporting judicial robes deploy polished legal arguments and reach opposing conclusions.

Rothschild’s article connects the empirical and doctrinal analysis to the jurisprudential consequences of ambiguity in a contested area of law. The less clarity from the highest court, the more partisan the judicial reasoning and resulting outcomes below. Free exercise, we see from the data, is ripe for partisan decision-making and attendant diminished confidence in law as neutral. When balls and strikes are called with reference to strike zones designed for the eyes of judicial political party affiliates, judicial opinions begin to resemble amicus briefs from contending interests. The evidence and doctrinal discussion by Rothschild together present an unsettling look at controlled chaos in the federal courts in an area of significant cultural conflict. Rothschild charts a path out of chaos. On one side is the specter of private conscience becoming an exemption from general law. On the other is the harsh view fashioned by Justice Scalia in Employment Division v. Smith, under which any free exercise claim must scale the steep hill of proving intentional discrimination against a disfavored religion.

To fully understand the elbow room for partisan judicial answers in free exercise matters, one must have a basic primer in the doctrinal maneuvers set loose in the aftermath of Smith. Justice Scalia’s opinion for the Court provided a brisk denial of religious exemptions from generally applicable law in the absence of proof that the state acted with discriminatory intent. This was consistent with Scalia’s general rejection of heightened judicial scrutiny of constitutional claims of any sort based on differential impact. Justice O’Connor argued that Scalia had distorted precedent. But she would have reached the same result, by concluding that the state interest in regulating a dangerous drug was sufficient to justify burdening the free exercise of religion by indigenous Americans in a ceremony involving the use of peyote.

With the equality conception of free exercise taking hold, Justice Scalia’s nightmare has in a sense come to fruition: that plaintiffs could invoke free exercise of religion at every opportunity. (P. 35.)

Smith was initially widely criticized for being improperly hostile to free exercise claims. But its effect was considerably softened by Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. Lukumi held that strict scrutiny would still apply if a law burdening religion involved either intentional discrimination or legal gerrymandering that has a similar impact. The result, ultimately, was ever-greater complexity in free exercise analysis, as courts debated the nature and breadth of this reading of Smith.

In the latest Supreme Court offering, Fulton v. City of Philadelphia, Chief Justice Roberts applied his usual mix of minimalism and complication as he strove to reconcile the outcome in that case with Smith and Lukumi. The opinion for a unanimous yet splintered Court gave us the Chief striving to avoid the sins of disruptive change in judge-made law while giving judicial partisans room to roam in search of harm to religion. “As it declined to reconsider Smith, the court applied strict scrutiny, but it barely engaged the elements of that constitutional standard.” Three concurrences by Republican appointees argued for revisiting Smith, likely pointing to an eventual overruling.

The result is confusing guidance about basic terms in free exercise jurisprudence. Legal gerrymandering means a differential application indicative of malign intent, something at least compatible with Scalia’s view on the need to prove discrimination. But advocates of a more protective free exercise doctrine have pushed for what some commentators call a “most favored nation” interpretation. As Rothschild puts this position, “General applicability demands that religion not be treated worse than almost any secular activity under the law—or, put differently, that religion be given superior treatment vis-à-vis all secular interests that are not extended exceptions.” (P. 29.) Secular interests are thought robust and able to contend for themselves, but more delicate religious interests require the hyper-vigilance of (Republican) judicial appointees. In fact, one maneuver is to refer to what a forthcoming article calls the two halves of Smith: the relatively remote case of intentional discrimination, and a newly supercharged meaning of general applicability—a kind of equality on steroids. This moves the analysis away from invidious discrimination and toward an argument that religion may not be undervalued vis-à-vis “any” conceivable secular activity. By comparison with Justice Scalia’s commitment to rational basis review and deference to legislators, most favored nation analysis has moved federal courts firmly into the contested project of advancing a policy position on free exercise.

As Rothschild shows, this position has a strong partisan correlation. Rothschild measures the votes of individual judges, a choice that may obscure the effects of panel composition on judicial decision-making. Nonetheless, the data show strong partisan preferences, and are consistent with other recent data. The article is a model of dual-purpose legal scholarship. It advances the state of knowledge about an area of law, and it is educational for a general reader interested in learning more about a current culture war mediated by the federal courts. And its skilled combination of data analysis with careful parsing of legal doctrine provides a model of how to conduct attitudinal analysis without slighting legal analysis. The article’s contributions are thus empirical, historical, doctrinal, and jurisprudential. What’s not to like?

Doctrinally, Rothschild effectively demonstrates the distance that conservative judges have traveled from Justice Scalia’s approach in Smith. Scalia insisted on the importance of leaving a wide scope for legislative decision-making and minimizing what he thought to be judicial imperialism, and was highly skeptical of rights claims that were not based on intentional forbidden discrimination. Yet somehow, free exercise jurisprudence, without overruling Smith, has become the source of an “expansive” equality jurisprudence that requires heightened scrutiny for laws affecting religion as long as a “general” law has even one exception. The concern has shifted from invidious discrimination on the basis of religion to a demand for something akin to what conservatives once called “special rights.” Bias, reconceived as a brutish indifference to religious sensibilities, is presumed—by culture warriors and, both data and opinions suggest, by Republican appointees to the federal courts. By contrast, where voting rights are concerned, any expectation of similar willingness to detect a discriminatory purpose, or a special importance of a right in need of judicial protection, appears to be in vain. The irony is not lost on Rothschild.

Rothschild’s thorough review of doctrine and voting patterns in free exercise law invites deliberation on the stakes involved in these cases, and on the judicial process itself. What should make either side in the dispute fret? Are the core values of religious freedom at stake? Or is the greater threat to the state’s need to safeguard public health and the general welfare? What does the partisan divide shown by Rothschild’s data set tell us we should worry about? In Rothschild’s view, the stakes are the reputation of the judiciary for producing stable law—including, to be sure, staying out of the way of the project of progressive law—rather than channeling personal or partisan attitudes. He acknowledges that reasonable minds may differ on the fine points of free exercise doctrine. But he argues that the “most favored nation” approach is incompatible with the two main pillars of free exercise doctrine, Smith and Lukumi.

Ultimately, Rothschild recommends that the Court at least reject the most favored nation approach. Beyond this, he argues that it may be time for the Court to reconsider judicial minimalism, at least in cases in which it combines with the polarized nature of the culture war to produce malleable doctrine and lower court confusion—and judicial partisanship. Given the demonstration he provides of partisan leanings by appellate judges, as well as the dramatic alteration of the Supreme Court’s lineup, one must perhaps only dream of a resolution unaffected by the partisan effects on judging that Rothschild reveals here. Whatever happens, Rothschild has added useful evidence and insight to the concerning story of partisan judicial outcomes in an era of culture war.

Cite as: Mae Kuykendall, What Hath Judicial Minimalism Wrought? Judicial Partisanship, Free Exercise Doctrine, and the Culture Wars, JOTWELL (November 1, 2021) (reviewing Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. ___ (forthcoming 2022), available at SSRN), https://conlaw.jotwell.com/what-hath-judicial-minimalism-wrought-judicial-partisanship-free-exercise-doctrine-and-the-culture-wars/.

How The Supreme Court Talks About the Press (and Why We Should Care)

RonNell Andersen Jones & Sonja R. West, The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study (August 10, 2021), available at SSRN.

An independent judiciary and an independent press are two of the institutions most often associated with a constitutional democracy’s commitment to public accountability. Two of our most thoughtful Press Clause scholars—RonNell Andersen Jones and Sonja West—set out to document what the former (more specifically, the Supreme Court) says about the latter (the press), and how that has changed over time. What they found is both fascinating and disquieting.

Worried about “the fragile and deteriorating relationship between the press and the government” and what that means for the protection of press freedom, Jones and West identified every reference to the press made by any Supreme Court Justice in any opinion since 1784. They then coded each reference by content (e.g., whether the Justice addressed the press’s trustworthiness, the press’s impact on reputation and privacy, its value, its constitutional protection, and more) and by tone (i.e., whether the Justice’s reference reflected a positive, negative, or neutral characterization of the press).

This is impressive empirical work—work that has generated a rich data set that the authors will continue to mine in future scholarship (where, for instance, they plan to consider what the Court’s rhetoric means for the public’s perception of the Court, and what this in turn might mean for the protection of press freedom).

In this Article, Jones and West detail the dramatic deterioration in both the frequency and the positivity of the Court’s description of the press. Bottom line, the members of today’s Court are much less likely even to mention the press than did their predecessors. And when today’s Justices do discuss the press, they are much more likely to do so in negative terms.

More specifically, in terms of frequency, Jones and West show that “the Court is simply referencing the press far less frequently than it did half a century ago,” including fewer references that even acknowledge the existence of the First Amendment’s Press Clause. And in terms of tone, when contemporary Justices do talk about the press, they are more likely to speak about it in negative terms. In short, the Justices’ references to the press in opinions written 50 years ago were more than twice as likely to be positive than press-related references today.

Jones’s and West’s discoveries are many, with some more surprising than others. For instance, they found a significant correlation—in the past and continuing today—between Justices’ ideology and their expression of positive or negative views of the press. Over time, left-leaning Justices have been more likely than right-leaning Justices to write positively about the press, and right-leaning Justices have been more likely than their left-leaning colleagues to write negatively (with the effects even starker at both ends of the left-right continuum).

Perhaps less expected, Jones and West also learned that today’s left-leaning Justices discuss the press, and discuss it positively, much less than their counterparts of a half century ago. Right-leaning Justices today are more likely to write negatively rather than neutrally about the press, and left-leaning Justices today are more likely to write neutrally rather than positively about the press.

The authors also identify the most and least press-friendly Justices of all time, based on metrics that combine both how frequently and how positively or negatively each Justice mentioned the press. These measures led them to identify Hugo Black, William Douglas, and William Brennan as the most press-friendly Justices ever, and Byron White as the least press-friendly. Note that all four are among the longest-serving Justices and that the tenure of all four overlapped at least in part during what some call the Press Clause’s “Glory Days” during in the 1960s, 70s, and 80s—a time when the Court decided a bevy of important press-related cases like New York Times v. Sullivan and the Pentagon Papers case (New York Times v. United States).

In contrast, that the contemporary Justices speak so rarely about the press means that it’s difficult to compare their positivity or negativity in statistically significant ways, and thus harder to identify any rhetorical press champions among today’s Justices. Clarence Thomas, the longest-serving of the current Justices, has mentioned the press most frequently, with 51 percent of those references neutral, 30 percent positive, and 19 percent negative. And while then-professor Elena Kagan extensively addressed free speech and press issues in her scholarship, since joining the Court she has rarely mentioned the press and press freedoms.

As Jones and West observe, the causes of these changes are tricky to identify, correlating as they do with changes in technology, changes in politics, and related changes in the press’s business model and economic prospects. (These changes also correlate with apparent changes in how the press talks about the Court. In Supreme Court Journalism: From Law to Spectacle?, Barry Sullivan and Cristina Carmody Tilley compare the print media coverage of Brown v. Board of Education with that of Parents Involved in Community Schools v. Seattle School Dist. No. 1 to illuminate how the press’s description of the Court’s work has changed over the last fifty years. They conclude that “while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective commitments.”)

At a time when the press faces existential challenges on numerous fronts, it needs defenders willing to advocate for the value it delivers as both government watchdog and as public educator (even while the press’s defenders need not, and should not, remain uncritical of its performance). As one of many illustrations of what we lose when we lose a commitment to the press and press freedoms, Richard Hasen and Margaret Sullivan (among others) detail the evidence that a decline in local newspapers—and the accompanying decline in public scrutiny of local government—correlates with a rise in local government corruption.

And so I find Jones’s and West’s takeaway both gloomy and consequential:

At this crucial moment, when we have seen the risks of executive and legislative branch attacks on the press, our study finds that the U.S. Supreme Court is not pushing back. . . .  A generation ago, the Court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation, and an institution with specific constitutional freedoms. Today, in contrast, it almost never speaks of the press, press freedom, or press functions, and when it does, it is in an overwhelmingly less positive manner.

 

Cite as: Helen Norton, How The Supreme Court Talks About the Press (and Why We Should Care), JOTWELL (October 8, 2021) (reviewing RonNell Andersen Jones & Sonja R. West, The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study (August 10, 2021), available at SSRN), https://conlaw.jotwell.com/how-the-supreme-court-talks-about-the-press-and-why-we-should-care/.

Perils of the Growth of Executive Power Over Immigration

Adam Cox & Cristina Rodriguez, The President and Immigration Law (2020).

Over the last few months, President Joe Biden has granted Temporary Protected Status (TPS) to some 300,000 Venezuelans living in the United States and 100,000 Haitians. As a result, these people will be able to remain in the U.S. without fear of deportation for another 18 months. Once again, the fate of hundreds of thousands of people fleeing oppression, poverty, and violence turned on the will of a single man. Yet, important as they were, Biden’s TPS decisions attracted little public attention beyond the community of experts and others who follow immigration issues closely. That is in large part because we have grown so used to the idea that enormous swathes of immigration law and policy are under the control of the White House. The recent TPS decisions are just the latest manifestation of this trend.

Adam Cox and Cristina Rodríguez’s book The President and Immigration Law is likely to become the definitive work on the growth of executive power in this field. As they describe, the executive branch has come to wield vast discretionary power over immigration policy, even though nothing in the text or original meaning of the Constitution grants the president that power. At the time of the Founding, the dominant view was that the Constitution did not give the federal government any general power to exclude and deport immigrants at all, much less that such authority would come to rest in the hands of a single person and his subordinates.

When the Alien Acts of 1798 gave the president broad power to deport non-citizens he deemed to be dangerous, such luminaries as Thomas Jefferson and James Madison argued that it was unconstitutional, and successfully prevented the Alien Friends Act from resulting in any deportations before it was allowed to expire in 1801. For a long time after, the federal government exercised very little power over immigration, though states were more active.

Over time, that changed. As Cox and Rodríguez explain, the executive has gradually acquired “extraordinary power over immigration policy” due to a combination of extensive delegation by Congress, and the enormous size of the undocumented immigrant population subject to deportation (some 11 million people). Since there is no way to deport all of the latter or even come close, presidents end up wielding vast discretion over who to target and why. Cox and Rodríguez’s book insightfully analyzes the growth of executive authority, and the ways in which presidents of both parties have used it—sometimes to give a reprieve to favored groups, and other times to engage in brutal enforcement actions that consign large numbers of people to lives of poverty and oppression.

In a series of insightful chapters, the authors explain how the presidency gradually “sidelined” previously dominant state authority over immigration, asserted greater power over the federal enforcement bureaucracy, and—perhaps most of all—increased its power at the expense of Congress. They are careful to explain that Congress’ role has not been superseded entirely. However, the White House has, on their account, become a “co-principal” with Congress in the development of immigration law and policy. Crucial to these trends has been the growth of a vast “deportation state,” largely under the control of the executive, and what Cox and Rodriguez refer to as the “shadow immigration system.” The latter is a combination of congressional delegations and executive power grabs that enable the White House to exercise enormous discretion over who is let into the United States in the first place, and who is subject to deportation afterwards.

This wide-ranging discretion can cause enormous harm, as with Donald Trump’s cruel anti-Muslim “travel ban” and his child separation policy. Even when exercised more humanely, executive control over immigration is an affront to the rule of law, for reasons well-explained by Daniel Farber, in his contribution to a Yale Journal on Regulation symposium on Cox and Rodriguez’s book.

Some of this discretionary power is just one part of a broader problem with our legal system. There are far more laws than any administration can possibly enforce, and far more lawbreakers than can ever be caught and prosecuted. As a result, a large majority of adult Americans have violated federal criminal law (to say nothing of state law) at some point in their lives, and could potentially be prosecuted. Undocumented immigrants are far from the only people who live on the sufferance of executive discretion. But the immigration situation is particularly severe, because of the grave consequences of deportation, and the weakness of due process protections in the immigration enforcement system.

Cox and Rodríguez propose reforms that could help address the problem of excessive executive discretion to deport and exclude migrants. Most of all, they argue that Congress “must drastically decrease the number of people who live under the threat of enforcement” by legalizing the presence of at least a large part of the undocumented population. They also suggest giving the president greater discretion to admit and legalize new immigrants, in order to counterbalance the present wide-ranging discretion to deport and exclude.

If implemented, these ideas would be useful steps in the right direction, especially that of legalizing currently undocumented migrants. But, for reasons I explained in my contribution to the Yale Journal on Regulation symposium, I fear they do not go far enough. In my view, the authors undervalue the need to strengthen judicial review of immigration policy (which currently tolerates egregiously unconstitutional practices that would be struck down in almost any other field) and especially the necessity of making it easier for migrants to legally enter the United States in the first place. The latter is the only way to truly tame the vast growth of executive power over immigration policy and the threat it poses to the rule of law.

Cox and Rodriguez are also sometimes overly optimistic about the good that can be accomplished through more benevolent exercises of executive authority. Recall the example of Biden’s grant of TPS status to Venezuelan and Haitian migrants. As welcome as it is, the beneficiaries still must live with the specter of its possible revocation within 18 months. That makes it extremely difficult for them to plan their lives for the long-term, reduces the contribution they might make to our economy and society, and generally makes their position insecure. What the White House giveth, it can all too often just as easily taketh away.

To their credit, Cox and Rodriguez suggest alleviating this problem by passing legislation giving the president the authority to grant at least some types of otherwise illegal migrants a “legally secure form of residence.” But it may be difficult to create and maintain a system under which the executive can grant security that he cannot readily take away. Such asymmetrical discretion is potentially feasible, and might be a lesser evil relative to the status quo (though still not as desirable as simply giving a much larger class of migrants nondiscretionary legal rights to enter and live in the United States). But it might also turn out to be an unstable equilibrium. Moreover, so long as the power to grant reprieves from entry bans or deportation remains under exclusive presidential control, a president hostile to immigration can simply choose not to exercise it.

Despite these reservations, The President and Immigration Law is a major contribution to our understanding of the presidency, immigration law, and separation of powers. It should be of great value to immigration experts and constitutional law scholars alike.


Parts of this piece are adapted from a symposium piece on The President and Immigration Law, written for the Yale Journal on Regulation.

Cite as: Ilya Somin, Perils of the Growth of Executive Power Over Immigration, JOTWELL (August 31, 2021) (reviewing Adam Cox & Cristina Rodriguez, The President and Immigration Law (2020)), https://conlaw.jotwell.com/perils-of-the-growth-of-executive-power-over-immigration/.

The Excluded Muddle

David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729 (2021).

A specter is haunting modern American legal scholarship—the specter of branding.

Whether it is a marketplace of ideas or just a marketplace, legal scholarship today overflows with neologisms, “I call this”-es, and other efforts to hawk our wares to law review editors and, perhaps, other scholars.1 Useful at times, branding is often unnecessary or silly. It routinely announces a purportedly un-noticed phenomenon that in reality fills whole library shelves. (One awaits with resignation the inevitable article proclaiming, “I call this activity, in which two parties reach a binding and often memorialized exchange of promises, agreementification. It urgently deserves closer study.”) Given the frequency with which legal scholars treat as “new” arguments or observations that were old before they were born but lie outside Westlaw’s reach, branding often involves neither new wine nor new bottles, but old wine in old bottles with a new label slapped on. It is bad enough if these efforts are cynical, worse if they are not, and perhaps worse still when they are a bit of both. We might call this the Late Capitalism-ization of legal scholarship.

With that cheerful preface, it is a pleasure to see a new label2 that actually performs a useful service, spotlighting something we might otherwise neglect. It is doubly pleasing because the article neither celebrates nor condemns what it labels. It walks us through the phenomenon with a proper sense of its nuances and its costs and benefits. Written by David Pozen and Adam Samaha, Anti-Modalities exemplifies the difference between a meaningful scholarly label and a mere marketing gambit.

Constitutional lawyers are familiar with the modalities of constitutional argument: the “forms of argument that are considered legitimate within the legal profession for establishing propositions of constitutional law.” In Philip Bobbitt’s words, they constitute the “legal grammar” of constitutional law. Constitutional law teachers inevitably teach these modalities, trying to instill in their students a sense of the kinds of constitutional arguments that will be legible to judges and other lawyers.

From this starting point, Pozen and Samaha ask: What sorts of recurring modes of constitutional argumentation are illegible and unacceptable? In particular—to distinguish them from altogether irrelevant arguments (“What does the arrangement of sculpture in the Uffizi tell us about the Seventh Amendment?”)—what arguments are excluded even though they “seem relevant to the controversies that constitutional law is asked to resolve?” Are they actually excluded, or do they find their way in to modal argument anyway? In what form? And what are the costs and benefits of the “gap” between what is permitted and what is excluded? As they note, anti-modal constitutional law arguments are not bad in themselves. And they are common, both in general conversation and in lay public discourse on constitutional law itself. The result is that “the anti-modalities,” for good and ill, “shut out of constitutional law virtually all the arguments that drive most citizens’ views on most matters of public concern.”

Like the Council of Elrond, Pozen and Samaha counter the six canonical constitutional modalities identified by Bobbitt with six constitutional anti-modalities, ordered by “how frequently decisionmakers are accused of employing them.” They are: 1) “Policy arguments,” which are common in debates over “public policy and political morality” but “seen as out of bounds in debates over the Constitution’s meaning.” 2) “Fundamentalist arguments,” which “draw directly on deep philosophical premises or comprehensive normative commitments.” 3) “Partisan arguments,” which “express a preference for a particular political or social group” for reasons not dictated by the Constitution itself. 4) “Emotional arguments,” “indisputably pervasive” in life but rendered suspect in law by the norm of reasoned elaboration. 5) “Popularity arguments,” which appeal directly to “the perceived popularity” or unpopularity of a proposition in arguing for a particular constitutional meaning. 6) “Logrolling arguments,” which consist of various trading or compromising techniques.

A typology of common anti-modalities is valuable in itself. But Pozen and Samaha go further, noting that, like most taboos, the anti-modalities inevitably find their way back into acceptable forms of constitutional argument in “diluted and disguised incarnations.” Thus, a straight fundamentalist appeal is sufficiently anti-modal to have been easily parodied by John Hart Ely (“We like Rawls, you like Nozick. We win, 6-3.”). But one might “hitch [such] an arguably anti-modal argument to a modality” by insisting that the Constitution “calls for a presentist inquiry into moral norms.” Typically, moreover, the return of the repressed argument calls for it to be domesticated or “modified.” Rather than bring to bear all the tools of sophisticated policy analysis, for instance, courts will employ “second-order” terms like “manageability,” or make broad-brush claims about consequences, ungrounded in serious data or analysis. In short, they assert, “American constitutional practice has developed an impressive array of norms to wall off the use of anti-modal reasoning”—and “a subtle set of gateways for letting in certain stripped-down versions of that reasoning in certain cases.”

One could easily imagine an article on this subject insisting that anti-modalities should be excluded, or conversely that such borders are artificial and must be torn down. (One need not “imagine” a scholarly article that simply accuses an adversary of anti-modal argument, or one that engages in anti-modal argument despite being ostensibly in the game. Both are common.) Pozen and Samaha avoid both poles.

They argue that the wall between modal and anti-modal argument, even if porous, has value. Blocking anti-modalities from constitutional law argument stops it “from devolving into normative argument, full stop.” Law—even constitutional law—is a profession, a practice, and an institution. Like all such institutions, it needs to be bounded and disciplined if the enterprise is to be conducted with coherence and integrity.

On the other hand, the wall “move[s] constitutional decisionmaking some distance from what people usually care about.” It leaves constitutional law “without the resources to reckon, seriously and explicitly, with some of the most significant dimensions of social problems.” Its participants, “unable to address such matters directly, . . . endlessly accuse each other of manipulation and misdirection.” And the channeling of the professional discourse of American constitutional law leaves its practitioners caught between in an interesting way. On one side, the insistence on modal reasoning encourages lawyers, who are accultured to view serious policy tools as anti-modal and are not trained to use them, to treat nonlegal expertise as “sociological gobbledygook.” On the other, the gulf between modal constitutional argument and common discourse leads to its “alienation and mystification for ordinary Americans,” and to constitutional lawyers’ alienation from ordinary Americans.

That is a particular problem for constitutional law, with its customary mix of high and low politics and policy. The “between” in which constitutional lawyers reside is almost a caricature of a certain kind of cognitive and social elite. Neither part of the general populace nor possessed of reliable technical knowledge, they resemble a wealthy alchemists’ guild that has somehow managed to hang on into the atomic age. “Put crudely,” they write, “constitutional law cannot survive as a legal discipline without the anti-modalities, and it cannot thrive as a political practice with them.”

Pozen and Samaha argue that despite its advantages, the downsides of “the status quo regarding the anti-modalities” counsel reform. They offer two speculative options. One is to “narrow the gap” between modal and anti-modal discourse about the Constitution, “connect[ing] the forms of constitutional argument to whatever people honestly and deeply care about with regard to matters of public concern.” The other—their own preference—is to “accept the resonance gap in principle, and strive to reduce its importance in practical terms,” by “reducing the footprint of both judicial review and supreme constitutional law.” Both proposals are thought-provoking, if secondary to the goal of “clarify[ing] the core tradeoffs” involved in the system of modal and anti-modal argument in constitutional law.

I worry about two possibilities, neither of which is fully discussed in this already full article. One has to do with the imperial reach of legalistic discourse. The “gap” that Pozen and Samaha describe arises from a view of constitutional law in which modal argument “shut[s] out . . . virtually all the arguments that drive most citizens’ views on most matters of public concern.” Insofar as Americans tend to see every political issue as a legal issue and every legal issue as a constitutional one, one might fear that “most citizens” themselves, in aping lawyers’ argumentative forms, will themselves take on the habits of modal discourse, or at least a bastardized version of it—including its exclusion of anti-modal forms of argument. On the Internet no one knows you’re not a lawyer, and a great many public arguments are conducted in a legalized form that neither mitigates sharp partisan feeling nor speaks its concerns openly. We may all end up alienated: severed from the capacity to engage in open talk on matters of public concern in a way that is free of the argumentative restrictions that make sense only in a narrow precinct of our society and its institutions.

Institutions themselves are the other concern, in two ways. First, as Pozen and Samaha write, “professional argumentation” unavoidably requires “some method.” That professionalism or disciplinarity undergirds the maintenance of included and (more or less) excluded modes of argument. An engineer knows when she is talking about the structural integrity of a bridge and how to talk about it. She and her colleagues can easily distinguish between that discussion and an argument about critical urban theory (a phrase I made up but which, of course, exists). Constitutional law may be a profession or discipline. But it is less clearly defined and bounded than many others, making boundary maintenance more difficult.

That difficulty will increase as law, like other institutions, experiences a contemporary weakening of attachment to or trust of institutions and disciplinarity as such. To the extent that what we are seeing today, in law and other disciplines, is not simply an effort to change the boundary or bring some anti-modalities into the modal space, but a rejection of boundaries as such and of the authority of those who collectively regulate modal space, one may worry that Pozen and Samaha’s typological effort will be like trying to draw a map in the sand at high tide. Pozen and Samaha’s project is descriptive and nuanced. But it may be that developments outside their endeavor—namely, a loss of faith in technē and in argument and argumentative boundaries—are pressing in ever closer on the whole enterprise.

A second point is closely related. Pozen and Samaha worry that “the anti-modalities both reflect and perpetuate the intellectual insularity of mainstream legal culture,” that their subtle entry into constitutional decisionmaking “only make[s] ‘the constitutional-law game’ more complex and impenetrable to nonspecialists,” and that this is one source of “legal estrangement” between lawyers and “nonelites.” Insularity born of the exclusion of the anti-modalities is indeed one sort of problem. But code-switching is another.

All sorts of platforms, and especially social media, allow and encourage constitutional lawyers to make anti-modal arguments on public questions of a constitutional nature, or—perhaps worse—to engage in a mix of modal and anti-modal arguments. They do not disclaim any professional status in these forums; most of them trumpet it (and would be ignored if they didn’t). They do so without any necessary skill in the anti-modalities, and without making clear what role they are playing and whether particular arguments are modal or anti-modal. One might think that anti-modal engagement on public issues in public spaces would reduce the “resonance gap” that worries Pozen and Samaha. But the mixture of modal and anti-modal argument by constitutional lawyers in these spaces may, as they suggest, add to the impenetrability of constitutional law. The very privilege of code-switching at will, while still loudly asserting one’s status as a professional player of the game, may exacerbate rather than narrow legal estrangement between elites and nonelites. And the lack of clarity about what role these elites are playing, personally or argumentatively, may sap institutional trust in “mainstream legal culture” and thus widen the gap further.

This observation is not meant to insist on the value of insularity or the need for stricter boundary maintenance between modal and anti-modal argument. And it may be consistent with the authors’ proposal to narrow constitutional law’s domain altogether. But it also suggests that, whatever the list of modal and anti-modal argument contains and whatever rules of boundary maintenance apply, the whole enterprise depends on some degree of institutional as well as public health. It is not clear we can count on either. Pozen and Samaha worry that the anti-modalities prevent “constitutional law” from reckoning properly with significant social problems. But we might also worry about a “constitutional law,” understood as part of an institution or discipline, whose practitioners address those problems more directly, but in the process lose any capacity to maintain themselves as a discipline, and squander whatever remaining trust people have in the institution.

The world of argument set out in Pozen and Samaha’s descriptive and analytic project may thus be beset on all sides. But it is a worthy project in itself, containing a fine mix of example, description, and speculation, positive and negative. To return to the beginning, it is an exemplar of the difference between scholarly labels that enhance our understanding of the world of social and discursive practices we inhabit—and mere branding, which simply sells us a product we already own.

  1. Present company included. I find at least five relevant “call this” labels in my own work in a Westlaw search, and both of my books, published in the last flush of youth, are not exactly free of branding.
  2. Semi-new, actually. The label “anti-modalit[y]” appears briefly in a 2013 article by James Grimmelman, in a different but conceptually similar fashion. To my delight, a much closer version also appeared in 2014 in parodic form, in one of Larry Solum’s April Fool’s abstracts. “Antimodalities,” here, is an affectionate spoof of Suzanna Sherry’s criticisms of constitutional theory, in the form of an argument that despite “the insistence of [constitutional] pluralists that constitutional argument is limited by a closed list of modalities,” in reality many key Supreme Court decisions are “‘antimodal’ decision[s] relying on arguments from outside the modalities.” That sentence could easily appear in the “real” article discussed in this jot. I see no reason to think the authors of the present-day Anti-Modalities were aware of or remembered this parody. But I do hope they share my delight. It is no reflection on the genuine merits of Pozen and Samaha’s piece that Solum is a fine parodist or that, in legal scholarship as elsewhere, history so often repeats itself—first as farce and then as reality.
Cite as: Paul Horwitz, The Excluded Muddle, JOTWELL (July 20, 2021) (reviewing David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729 (2021)), https://conlaw.jotwell.com/the-excluded-muddle/.

Update of Jotwell Mailing Lists

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People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control

Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. __ (forthcoming, 2022), available at SSRN.

At the end of 2018, USA Today published a list of “normal” activities that had recently prompted calls to the police when Black people engaged in them. The list, which highlighted a series of viral incidents in which white people had wrongly called the police on Black people engaging in everyday activities, included incidents like police calls over Black people barbecuing at a park, sitting in a Starbucks, and mowing lawns. Many of these incidents rightly generated public outrage—and in some instances material consequences—for those who had wrongly sought police intervention. By presenting a list of the “normal, everyday” activities which resulted in police calls when Black people engaged in them, the story highlighted the role that racism plays in what public conduct is perceived as criminal.

Jamelia Morgan’s Disability’s Fourth Amendment invites us to go further and interrogate the ways in which “normal” itself—and associated understandings of what is “reasonable” policing—produce presumptions of criminality when mapped onto disabled “bodyminds” (a term that Morgan borrows from disability studies scholar Sami Schalk). Morgan argues that by failing to account adequately for disability, Fourth Amendment doctrine under-protects people with disabilities, subjecting them to a greater likelihood of stops, searches, seizures, and excessive force. Most troublingly, Prof. Morgan compellingly makes the case that many of the very indicia used to justify police action (including the use of force) under the Fourth Amendment overlap with physical, mental, and behavioral manifestations of disability.

Consider the example of psychiatric disabilities, which is an example that Morgan centers in her piece. A person with untreated (or even treated) schizophrenia may engage in behaviors that are non-normative, like talking to themselves and gesturing as they carry on a conversation with the voices in their head. These actions are not criminal, but when carried out in public spaces, especially wealthier or whiter public spaces, they may arouse discomfort and suspicion, leading to police contact. Upon approach by the police, such individuals are likely to respond non-normatively, including being unable or unwilling to perform the subdued compliance expected in response to police demands. But these of course are exactly the circumstances that create what Morgan, borrowing a phrase from Devon Carbado, refers to as “pathways to police violence.”

Nor is this phenomenon limited to those with psychiatric disabilities. As Morgan highlights, physical, intellectual, and developmental disabilities have also prompted police contact, suspicion, and violence across a host of circumstances. For example, consider the seminal case with which Morgan begins her piece, Graham v. Connor. Graham involved a diabetic with low blood sugar, whose behavior was perceived as suspicious and indicative of drunkenness and who was subjected to a police stop—and, ultimately, police brutality. Other examples that Morgan provides in her piece include deaf or intellectually disabled people unable to understand police commands, people with autism who act or respond in non-normative ways, and those with mobility disabilities who are subjected to excessive force. In each of these instances, disability—especially when combined with race and class bias—can prompt or exacerbate a police encounter, sometimes leading to violence and even death.

As Morgan points out, people with disabilities represent a large fraction of people killed by the police, with some estimates placing the proportion as high as 50%. As Morgan urges, these numbers ought to, but have not, prompted deeper consideration of how Fourth Amendment doctrine ought to attend to disability. Rather disability is simultaneously “hypervisible and invisible” in many of our Fourth Amendment cases—providing the setting for the factual context, but little more. Despite the very large role that disability plays in prompting and mediating police encounters, searches, seizures, and violence, there is relatively little in Fourth Amendment doctrine that seeks to ensure that the Fourth Amendment equally protects those with non-normative bodyminds. Indeed, numerous features of Fourth Amendment law, while facially neutral, almost certainly under-protect those with physical and mental disabilities. (Of course, as Morgan observes, this phenomenon is not limited to disability, but also extends to factors such as race and class, and especially the contexts in which those identities intersect.)

For example, what justifies a Terry stop based on “reasonable suspicion” is centered definitionally on what is “suspicious,” which often includes non-normative behavior or appearance which may arise from disability. Thus, “certain expressions of disability—such as flapping hands, low-affect facial expressions, pacing, lack of eye contact, and unsteadiness that may be exhibited by some autistic individuals,” could all be constructed as a basis for “reasonable suspicion.” Similarly, speech disabilities, hearing disabilities, and the responses of autistic and psychiatrically disabled individuals can also lead to a perception of “suspicious” behavior or “suspicious” responses to initial police intervention. Currently, however, Fourth Amendment doctrine not only does not prohibit such “disability profiling,” but arguably encourages it by focusing the inquiry on “unusual” or “suspicious” behaviors.

As Morgan demonstrates, disability continues to be under-protected by Fourth Amendment doctrine not just at the initial stage of police contact, but at each successive stage of police engagement. Police seizures—in which the question of whether a seizure has occurred turns on whether a “reasonable person would have believed he was not free to leave”—employ an objective standard that may obscure the profoundly different experience of a police encounter that a wheelchair user or a person with an intellectual disability may have. In consent to search cases, courts at times consider disability, but almost never find the standards for non-voluntary consent to be met—with some appearing to require intentional exploitation of disability by the police for the standard to be met. In each of these instances, the real impact that disability is likely to have on police interactions is often simply ignored in the Fourth Amendment analysis.

Perhaps most troublingly, as Morgan lays out, Fourth Amendment excessive force analyses, while often featuring disabled plaintiffs as their backdrop, have not fully accounted for the role that disability can play in generating and justifying such uses of force. As Morgan notes, many courts do “recognize and weigh disability as a factor in determining whether a particular use of force was reasonable.” But the mechanisms by which they do so “var[y] widely” and do not incorporate a full accounting of the ways that disability may be used to justify force and its escalation. Among other things, as Morgan details, under existing doctrine, disability-linked affect, appearance, and behavior are often used to “construct[] the threat” faced by the police in the first instance. Disability-linked non-normative responses to police commands and control are then often used to justify force escalation. Disability can thus both provide the basis for a “reasonable” perception of the need for the use of force and a justification for escalating that force, Combined with qualified immunity doctrine, this leads to a legal doctrine that is strongly tilted toward absolving police of responsibility for violent and even deadly responses to disability.

What could we do differently? Morgan offers a variety of suggestions for doctrinal reform, while recognizing that doctrinal reform cannot fully solve the problem of policing and disability. Most centrally, Morgan suggests that Fourth Amendment doctrine ought to explicitly grapple with disability, and disallow sequalae of disability which are not immediately dangerous as a basis for initiating or escalating police contact or use of force, while requiring disability to be considered in deciding whether searches and stops are consensual. As Morgan recognizes, it will not always be easy to disaggregate which sequalae of disability do or do not produce an immediate threat. But as she points out, this highlights what is perhaps one of the most harmful aspects of Fourth Amendment doctrine as currently constituted: its deployment of a “split second” conception of police conduct, a conception which fails to grapple with the broader structures of policing (including training, tactical, and structural factors). If there are better, non-violent, ways for police to recognize and address non-normative behavior or responses by people with disabilities, why should our constitution permit violence as the first-line “reasonable” police response?

Ultimately, the power of Morgan’s piece is to remind us that people with disabilities deserve what disabled legal scholar Jacobus tenBroek referred to as “the right to live in the world.” They do not possess such a right if their manifestations of disability can at any time become the basis for police contact, violence, and even death. Her piece imagines a Fourth Amendment doctrine that at least grapples with this important right, even if it cannot fully actualize it.

[The author of this Jot identifies as a person with a psychiatric disability, and has close family members who have experienced regular police contact as a result of their psychiatric disabilities].

Cite as: Katie Eyer, People With Disabilities and the Right to “Live in the World”: The Fourth Amendment and Police Violence, Coercion and Control, JOTWELL (June 24, 2021) (reviewing Jamelia Morgan, Disability’s Fourth Amendment, 122 Colum. L. Rev. __ (forthcoming, 2022), available at SSRN), https://conlaw.jotwell.com/people-with-disabilities-and-the-right-to-live-in-the-world-the-fourth-amendment-and-police-violence-coercion-and-control/.

Habeas, Hail Mary, And the Hook and Ladder

Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159 (2021).

Time ticks away. You have one shot downfield. If you don’t score a touchdown, the game’s over. Which play should you call? A Hail Mary pass into the end zone, reducing the game’s outcome to a lone, long-shot attempt? Or perhaps a trick play—a conceit from the back of the playbook with a colorful name like flea-flicker, fumblerooski, or Statue of Liberty—requiring you to avoid a series of tackles in an unlikely bid to run the ball to victory? In other words, would you rather face nearly impossible odds once or even odds a half dozen times?

Winning review of a state criminal conviction in federal court requires a higher-stakes and less fair version of the same choice among long shots. First, a criminal defendant can appeal directly to the highest civil authority by petitioning the U.S. Supreme Court for certiorari. But these prayers for relief, like Hail Marys, most often go unanswered. Second, a defendant can petition a federal district court for a writ of habeas corpus. But like the flea-flicker or the hook-and-ladder, federal habeas involves avoiding many procedural obstacles. Finally, a defendant could choose a hybrid: file a habeas-like petition for postconviction review in state court, and hope that the Supreme Court will grant certiorari after state courts deny relief. At first blush, this hybrid approach seems to combine the challenges faced by its alternatives, because to succeed it must hurdle many procedural obstacles and then complete a desperate, Hail Mary pass. Yet in Direct Collateral Review, a dazzling tour through both postconviction doctrinal weeds and high habeas theory, Payvand Ahdout shows that this hybrid approach has promise for individual criminal defendants and the development of constitutional doctrine. There are even substantial benefits for judicial federalism, because the Supreme Court can supervise the application of federal rights in state courts without undermining the presumption of parity between federal and state trial courts.

Ambitious papers traverse pitched terrain; Ahdout’s is no exception. In arguing that direct collateral review is a viable vehicle on the rise, this paper takes on a formidable task. The conventional wisdom is that the Supreme Court reviews cases in this posture only infrequently. Justice Stevens once noted that the Court “rarely grants review at this stage … even when the application … is supported by arguably meritorious constitutional claims,” a point later endorsed by the full Court. This presumption reflects the Court’s traditional view that the intermediate posture of direct collateral review makes such cases poor vehicles for resolving contested questions of federal law.

The Court protests too much, Ahdout thinks. While it was once true that the Supreme Court disfavored direct collateral review—from 1986 until 2003, the Court took only nine such cases—that is changing. 2015 marked the break: the Court took five cases on direct collateral review that term, more than it had taken in the preceding six terms combined. The trend continued with another four cases in 2016, and three each in 2018 and 2019. So much for the presumption that the Court “rarely grants review” on this posture.

Ahdout traces this shift in the Supreme Court’s certiorari practice to developments in the two coordinate branches. Start with the legislature. Congress imposed a host of new procedural hurdles on habeas petitioners in 1996’s AEDPA. Under that law, habeas is limited to cases in which a state court has unreasonably applied clearly established federal law “as determined by the Supreme Court.” This bar has two effects, Ahdout argues. First, it robs lower federal courts of the chance to develop constitutional doctrine in habeas cases, since lower court precedent is not relevant for purposes of AEDPA. Second, and more subtly, it puts increased pressure on the Supreme Court to determine the content of clearly established federal law—because no one else may do so. In sum, federal habeas is a worse vehicle than it used to be.

The Department of Justice has played a role as well. Most cases the Supreme Court hears come from federal courts. By choosing not to contest broad applications of Supreme Court precedent in lower federal courts, DOJ and the Solicitor General can perversely insulate the Supreme Court from deciding important questions about federal rights—even as those same questions arise in state criminal proceedings. Because state criminal cases are both more numerous and comparatively poorly funded, the Supreme Court must get creative if it wants to keep setting the contours of federal rights.

Direct appeals have their own problems. Some kinds of claims—like the retroactivity of newly articulated rights under Teague v. Lane or the continuing competency of a defendant sentenced to death—can only arise on collateral review. Other critical issues, like ineffective assistance of counsel or the government’s failure to produce evidence as required by Brady v. Maryland, are more likely to arise on collateral rather than direct review, as Ahdout establishes. These developments have rendered both federal habeas review and direct appeals increasingly problematic vehicles for the Supreme Court to determine the scope of federal rights. So direct collateral review is on the rise.

Despite the doctrinal and institutional changes that have made direct collateral review a better posture for Supreme Court review, its downsides as a vehicle remain. Ahdout reviews this suite of problems—including such fundamental questions as what the standard of review should be and how generously to read summary orders issued by state courts—as a preview of issues to come. These problems, which the Court and Congress have struggled over for decades in the context of federal habeas, reflect the tensions of our system of judicial federalism.

Yet one key difference makes direct collateral review promising from the vantage point of judicial federalism. Like federal habeas, direct collateral review involves a federal court supervising the application of federal law in a state criminal proceeding. But with direct collateral review, it is the U.S. Supreme Court—not lower federal courts, which are theoretically coequal with their state counterparts—that does the supervising. There is thus no tension between deferring to state courts and ensuring the correct application of federal law.

This rich paper teaches lessons both internal and external to the criminal legal system. For those working inside the system, Ahdout offers practical advice. To improve the quality of postconviction adjudication, ensure that state habeas analogs include high-quality counsel who will preserve issues for an eventual petition for certiorari. For lawyers and defendants facing hard choices between alternative postconviction procedural paths, don’t overlook direct collateral review as a moment for meaningful federal review, but also beware of the procedural uncertainties that await. Like a football team mounting an unlikely comeback, litigants will be glad for that slim yet real hope, even as they rightly fight for much more.

From an external perspective, Ahdout describes a changing “ecosystem of collateral review.” In this ecosystem, the Supreme Court acts against constraints imposed by Congress and litigants (especially DOJ) to protect its review of state convictions. Direct collateral review offers the Supreme Court a solution to that problem because it is free of the statutory and institutional constraints that limit its alternatives. We should be glad, then, that direct collateral review is moving up in the playbook—and on the Supreme Court’s docket.

Cite as: Thomas Bennett, Habeas, Hail Mary, And the Hook and Ladder, JOTWELL (June 7, 2021) (reviewing Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159 (2021)), https://conlaw.jotwell.com/habeas-hail-mary-and-the-hook-and-ladder/.

Securing Essential Work for Low Wage Workers

Deepa Das Acevedo, Essentializing Labor Before, During, and After the Coronavirus Epidemic, 52 Ariz. St. L.J. 1091 (2020).

The COVID crisis comes at a time of transition and peril for low wage workers, exposing and exacerbating their vulnerability under United States labor and employment law. The crisis also provides an opportunity for reimagining the state’s responsibility towards low wage workers. Even before the pandemic, in today’s gig economy an increasing number of workers lack any certainty about, and control over, their working lives. In Essentializing Labor Before, During, and After the Coronavirus Epidemic, Deepa Das Acevedo uses the COVID crisis to illustrate how the baseline at-will employment rules contribute to the precarity of the lives of low wage workers. Das Acevedo advocates rejecting the at-will doctrine to address that precarity.

In Essentializing Labor, Das Acevedo shows how the debate over who is an essential worker at the height of the COVID crisis revealed the failure of US labor law to protect the interests of low wage workers. Government measures to protect against COVID made it necessary to determine who is an “essential” worker. “Essential” workers such as medical workers, first responders, grocery store employees and food production workers were exempt from stay-at-home restrictions and could therefore keep their jobs even during the worst times of the COVID crisis.

However, being labeled an essential worker has been a double-edged sword – essential workers not only could go to work; they were often required to go to work, without sufficient measures to protect them from the disease, or risk losing their jobs. As a result, essential workers have been disproportionately likely to be infected with COVID and to die of the disease.

Arguably, essential workers (especially healthcare workers) have an obligation to society to continue to work in jobs that are essential to the health, safety, and welfare of the people. If so, however, our society has a reciprocal obligation to protect the health and safety of those workers. Yet the United States Supreme Court has repeatedly rejected claims that the government is constitutionally obliged to protect people from external harm. Thus, workers are dependent on positive law to protect them from danger in the workplace, including the danger imposed by a pandemic. Yet, as Das Acevedo explains, positive law actually increases their vulnerability.

Although the term “essential worker” has only recently become widely used, Das Acevedo explains that the term “essential labor” has long been important to US labor and employment law. During the pandemic, a worker is essential if her labor is essential to society. Before the pandemic, the determination of whether a worker was essential depended on the perspective of the employer. But neither determination is made from the perspective of the worker herself, even though the job is essential to the workers’ well-being and survival.

Das Acevedo argues that, from the workers’ perspective, all jobs are essential, not only because work is necessary for economic survival, but also because work is central to human flourishing and to one’s identity. Moreover, in the United States a job is more essential than in other western democracies. Many benefits and legal protections in this country are linked to employee status, from health insurance to anti-discrimination laws. In the emerging gig economy, workers do not enjoy even the minimal benefits that adhere to the employee status. This distinguishes the United States from other western democracies, where the state provides health care and pensions, and where legal protections apply to all workers regardless of their technical status, providing a safety net for all workers, even if they are required to do essential jobs.

Notwithstanding the fact that being an employee is even more essential to workers in our country than in other countries, U.S workers have far less job security than workers in other western democracies. Under the employee-at-will system which underlies U.S. labor and employment law, workers can be fired at any time for just about any reason. Das Acevedo argues that doing away with the at-will doctrine is an essential step towards improving the lives of low wage workers. Replacing employee at will with just cause termination rules would give workers a baseline stability and certainty that they need for their essential jobs.

Recently, scholars have begun to explore the 13th Amendment’s protection against involuntary servitude as a source of positive rights for low wage workers. Other scholars have argued that the Court should refine its 14th Amendment state action doctrine. In this article, and in all of her work on low wage gig economy workers, Das Acevedo lays the groundwork for theorizing their rights, all for all of those interested in creating a responsive state to protect vulnerable workers.

Cite as: Rebecca Zietlow, Securing Essential Work for Low Wage Workers, JOTWELL (May 7, 2021) (reviewing Deepa Das Acevedo, Essentializing Labor Before, During, and After the Coronavirus Epidemic, 52 Ariz. St. L.J. 1091 (2020)), https://conlaw.jotwell.com/securing-essential-work-for-low-wage-workers/.

A Democratic Solution to Social Media Election Warfare, and the First Amendment

David L. Sloss, Information Warfare and Democratic Decayin Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (forthcoming 2021), available on SSRN.

During the rise of big tech like Facebook, Twitter, and YouTube, there has been an increase in autocratic governments. Political leaders in Hungary and Poland have used democratic constitutions to curb democracy. They have ignored the European Union’s complaints about their actions. But perhaps the most dangerous development is the information warfare carried out by Russia, China, Iran, and others with the intention of interfering with democratic elections. Some experts argue that Russia’s “organized social media manipulation” was the reason for Trump’s victory over Clinton.1 These countries used U.S. First Amendment values against the U.S.

Professor David Sloss is authoring a book detailing how “Chinese and Russian cybertroops” accomplish their goals, as well as the weak efforts by the U.S. social media companies to respond. These platforms have profit incentives that conflict with the need to block information warfare or disinformation campaigns. This review briefly examines the newly released first chapter of the book. What makes the book significant is that Sloss proposes a multi-national alliance and registration identification system to deter this cyber-espionage and perhaps slow the corresponding democratic erosion. The solution, however, raises serious First Amendment issues even though it may promote democracy.

The initial chapter contains charts on recent democratic deterioration, including in the U.S.  Meanwhile nations like China are economically booming and increasing in power. Though Sloss declares himself a liberal internationalist, he explains that foreign agents have no part in U.S. self-government, and that they have fewer First Amendment rights. He also produces some nice turns of phrase. Whereas Clausewitz said war is politics by other means, Sloss writes that information warfare is war by political means.

Sloss therefore advocates an Alliance for Democracy—a transnational system of democratic states guaranteeing strong free speech for its members. But outsiders would have fewer speech rights.2 For example, their election-related messages would contain disclaimer warnings. Moreover, all social media users would have to register and identify themselves, declare their nationalities, and consent to verification. Sloss writes that this avoids content discrimination, replacing it with identity information concerning dangerous speakers.

He then addresses objections, especially privacy concerns. But he points out that the influence of fake accounts is huge anyway. Sloss is also aware that the disclaimers raise concerns. And he sees the large administrative costs. But he argues that the benefits to democracy far outweigh the horrifying costs, and that the First Amendment is not violated, though this is debatable. Certainly, Sloss should address this question in detail later in the book.

One criticism is that he does not show in these pages that social media causes less democracy. For example, social media fueled the “Arab Spring’s” democratic moments. Moreover, the 2020 U.S. Presidential election was quite safe. Yet the Sloss alliance and registration system could provide a fascinating opportunity to reduce or block the social media interference of autocracies in democratic elections. The proposal deserves examination, if the First Amendment problems can be overcome. Thus, his book could be very important.

  1. See e.g., Kathleen Hall Jamieson, Cyberwar: How Russian and Trolls Helped Elect a President: What We Don’t, Can’t and Do Know (Oxford 2018).
  2. Agency for Int’l Development v. Alliance for Open Society Int’l Inc., 140 S.Ct. 2082 (2020).
Cite as: Mark Kende, A Democratic Solution to Social Media Election Warfare, and the First Amendment, JOTWELL (March 18, 2021) (reviewing David L. Sloss, Information Warfare and Democratic Decayin Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (forthcoming 2021), available on SSRN), https://conlaw.jotwell.com/a-democratic-solution-to-social-media-election-warfare-and-the-first-amendment/.

Protecting Free Speech from Itself

Toni Massaro & Helen Norton, Free Speech and Democracy: A Primer for 21st Century Reformers (Dec. 15, 2020), available on SSRN.

There has been a long-standing belief that more speech produces more freedom, and that a governmental regime is democratic to the extent that governmental control of speech is minimized. Recent developments have called these beliefs into question, however. Justice Brandeis may have said that sunlight is the best of disinfectants, but Donald Trump has given disinfectants a bad name, and cast doubt as well on their metaphorical referents through his unceasing falsehoods and his flirtation with or embrace of Russian internet disinformation. He is out of office, but his shenanigans are in fact examples of much more extensive dilemma that remains with us today. In a recent article I like lots, Toni Massaro and Helen Norton confront this dilemma and offer possible responses.

The problem, as the authors note, is that speech has been weaponized by a toxic mixture of new technology and extreme partisanship. The internet in particular, as a source of information that people increasingly rely upon, is less a marketplace of ideas and more a means of inducing people to buy into defective reports and harmful attitudes, by overwhelming them with input or misleading them with subliminal messages. Instead of addressing this problem, a conservative Supreme Court has weaponized free speech doctrine by treating government efforts to regulate defective products and harmful substances as an intrusion on the free speech rights of those who sell these products and substances in the actual marketplace. By thus overlooking serious threats to speech and instituting counter-productive protections, the Court has created a serious mismatch between real dangers and existing doctrine.

Professors Massaro and Norton respond to this situation by recommending what they call “tweaks” rather than “topples” – delimited doctrinal adjustments as opposed to comprehensive revisions. Their choice is based on the incremental character of judicial reasoning and the widespread reverence for current free speech protections. In fact, I think the authors undersell their recommendations. These can certainly be implemented incrementally, but they are based on important conceptual considerations that point toward new understandings of the way speech functions in the context of our modern world.

One recommendation is to shift our speech-oriented solicitude from the rights of speakers to the rights of listeners. As Robert Post has pointed out, First Amendment doctrine depends on relationships; without listeners, speech is only noise. If one reads too much John Stuart Mill, the image of speech that one will have in mind is discussion or debate among relatively equal parties. In the modern world, however, there is an asymmetry between the two. In part, this is because speech – that is, the ability to reach listeners – costs money. In part, it is because the speech that reaches listeners makes money, either directly by influencing ordinary people in their capacity as consumers or indirectly by influencing them in their capacity as voters. The result is that the wealthy speak and ordinary people listen. Professors Massaro and Norton propose that free speech doctrine should be tweaked to provide more protection to listeners. Instead of being so solicitous of professionals’ right to speak – or not to speak on religious grounds – the doctrine should protect those who consult these professionals and want to obtain necessary, truthful information. Instead of freeing the expenditure of money from campaign finance regulation, the doctrine should recognize that the essential freedom is the ability of voters to hear each candidate’s position and reach informed judgments.

Two other recommendations that Professors Massaro and Norton advance are to rethink the scope of state action to which the Free Speech Clause applies, and to rethink the concept of neutrality that defines a good deal of its substance. Here again, the operation of the internet raises crucial questions. While the authors acknowledge the value of the autonomy that the state action doctrine provides, they question its dichotomous rigidity. Internet providers may be private for certain purposes, but their ubiquity and influence suggest that inclusiveness requirements might be imposed on them by courts. Similarly, Professors Massaro and Norton acknowledge the force of neutrality arguments, but recommend that content-sensitive regulation may be constitutionally permissible if it is designed to avoid misleading communications such as robot-generated messages that appear to come from individuals.

The example of racist speech at private universities provides a further illustration of the authors’ argument. This may be one context where the public-private dichotomy on which the state action doctrine is based breaks down, given universities’ essential role in our increasingly knowledge-based economy, the proportion of their research that is supported by government grants, and the extent to which higher education is provided by government in most Western nations. Their private status could be challenged through exceptions to state action doctrine such as entanglement or public function, but such doctrinal tweaks might well be grounded on a more basic re-evaluation of the doctrine as it applies in particular contexts such as racist speech. Regulation of racist speech is content-based, and thus not neutral, but the “Court’s sometimes platitudinous claims to neutrality are descriptively inaccurate” for many of its decisions. In this case, doctrinal tweaks allowing content-based regulation might be supported by the more general recognition that universities, by virtue of constitutional decisions and federal legislation, are communities that explicitly welcome students of different races, ethnicities and religions. In this sense, they embody particular commitments, and the speech that they allow might be regulated on the basis of those non-neutral commitments.

All of this, of course, is controversial. Professors Massaro and Norton certainly do not deny the importance of free speech or the dangers of allowing government to regulate it. They remind us, however, that legal doctrine, no matter how well-established and revered, does not justify itself but rather must be justified by the purpose that it serves. New circumstances can sunder a previously secure connection between a given doctrine and its purpose. Modern modes of communication and increasing political polarization constitute such circumstances. They demand that we rethink free speech doctrine to ensure that it continues to serve its underlying purposes.

Cite as: Edward Rubin, Protecting Free Speech from Itself, JOTWELL (March 3, 2021) (reviewing Toni Massaro & Helen Norton, Free Speech and Democracy: A Primer for 21st Century Reformers (Dec. 15, 2020), available on SSRN), https://conlaw.jotwell.com/protecting-free-speech-from-itself/.