Aren’t We Special?: Article III’s Institutional Design

Jun 27, 2023 Lyrissa B. LidskyAdd a Comment

Lyrissa B. Lidsky

In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.

Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform.

In framing the problem of Article III exceptionalism, Professor McAlister explains that the reorganization of the operations of the federal judiciary was largely a response to “competing crises,” namely, “a vast rise in the number of small, seemingly pedestrian federal cases and an increase in both the number and complexity of ‘big’ cases.” Instead of lobbying to expand their ranks, Article III judges pushed for addressing the crises through means that preserved and even enhanced their own prestige.

At the trial court level, federal courts shunted their more routine or boring work to less prestigious judicial officers with far less job protection and lower pay. These Article I “adjuncts” to Article III judges include the federal magistrate judges, bankruptcy judges, and administrative law judges who now handle the vast bulk of the federal judicial workload on the civil side. Without them, the federal judicial system would cease to function, but their “lesser” status serves to emphasize the exalted status of their Article III brethren.

Article III judges also used “case management” tactics to exalt their status by keeping the most complex and interesting cases for themselves. Professor McAlister shows how the procedural device that allows a judicial panel to transfer and consolidate federal cases with similar facts to a single district court judges confers “elite status” on the judge to whom the “multidistrict litigation” is transferred. This procedure allows a single judge to resolve thousands of cases in one fell swoop, and these cases sometimes involve the most important, high-profile litigation in the country. The result is that “district court judges over the last fifty years have acted collectively to consolidate their authority, delegate their least sophisticated or valued work to others, and attract higher-profile, more elite civil work for themselves.”

At the federal appeals court level, judges also have taken measures to dispense quickly with cases that appear to be routine, to save their attention and energy for the most interesting and high-profile cases. Under its “triage” system, federal appeals courts do not schedule for oral argument cases that are preliminarily deemed easy; instead, judges resolve these cases without written decision, often by rubber-stamping the recommendations of staff attorneys. As Professor McAlister demonstrates, the effect is to funnel judicial energies toward “important” cases, while shifting their energies away from “unimportant” ones, which disproportionately comprise those brought by unrepresented or other marginalized litigants.

She also traces these same trends through macro-judging decisions reshaping Supreme Court operations. In 1988, the Supreme Court succeeded in convincing Congress to eliminate its mandatory jurisdiction, allowing it to completely control its caseload. The effect? A very dramatic reduction in the number of “merits” cases decided by the Court, providing Justices “more time to devote to their merits docket (including writing longer decisions or more separate decisions) and to engage in other pursuits (like seeking public recognition, getting book advances, and doing high-profile speaking gigs in far-flung locales).”

Meanwhile, and perhaps relatedly, the Court has refused to adopt ethics rules while such matters “are beyond congressional purview.” At the same time, a “judicial cult of personality” has taken hold: with their increased leisure time to write books, give speeches, and draft separate opinions, Justices seem to “have more time for pursuits that exalt themselves.” This affects judicial modesty and restraint, and, as Professor McAlister provocatively argues, may ultimately be detrimental to the public interest.

One of the strongest facets of this remarkably good article is its exploration of the dark side of the intensification of the “special” status of Article III courts. “Macro-judging” (again, the many decisions about how the federal courts operate) runs the risk of tainting “micro-judging,” the individual judicial decisions resolving cases—decisions that change the lives of the litigants and definitively interpret society’s operating rules. Macro-judging decisions that aggrandize judicial power and prestige will often work to the detriment of the least powerful in society: fewer, if any, judicial resources will be dedicated to hearing their cases, and less authoritative rulings will result in matters concerning them. As Professor McAlister points out, this is “reason enough for more aggressive congressional oversight and lawmaking in these areas.”

Professor McAlister’s proposals to counteract Article III exceptionalism are sound. First, she urges reinvigoration of Congress’s operational oversight of the federal courts in ways that would enhance the rule of law and improve the quality of justice for all. Congress must “resist judicial capture” and “act with greater sensitivity to the possibility of judicial aggrandizement—including, especially, by inviting dissenting voices and different constituencies into what formal processes exist.” Congress should be especially skeptical of judicial objections to court expansion, which often are a product of “entrenched (and rampant) elitism.” Building on the work of other scholars, she also urges Congress to consider requiring the Supreme Court to issue, without dissents or concurrences, unsigned per curiam decisions in every case. Or Congress might limit the issuance of nationwide injunctions, expand the federal judiciary, or take other measures to decrease the federal courts’ autonomy over their workload. All these options represent possible avenues for reform worthy of the further consideration this article ought to inspire.

Ultimately, Professor McAlister issues an optimistic call to action rooted in a desire to improve the quality of justice, and not merely the judiciary’s self-perception. She writes:

There’s every reason to think reforms that disturb the exceptionalism narrative of Article III might return the courts to a more passive, minimalist, or public-service orientation. . . .

Design features can encourage or discourage boldness and aggrandizement; they can elevate or diminish the public-service orientation of the federal courts; they, ultimately, have the power to define what is important to our judicial institutions. My point is this: it’s time for the people—acting through our elected representatives— to set our own judicial priorities for the Article III courts. Greater regulation of macro-judging may be one way to re-align those priorities to privilege the public-service mission of the judiciary—that is, a mission that heeds the priorities set by a democratic process—over the aggrandizement of Article III.

As I hope this review illustrates, her article makes a significant contribution to the literature on federal courts by identifying the tremendous and often overlooked costs of Article III exceptionalism. Further, it stands as a useful and timely corrective to a tendency within the legal academy and profession and sometimes the society at large “to romanticize or canonize the federal judiciary.” I hope the article’s sensible proposals for reform will receive the attention they deserve—and not merely within legal academia.

It is a testament to the thought-provoking quality of the article that it made me consider whether other recent Supreme Court practices I have been studying recently, such as anticipatory overruling or shadow docket signaling, might be operational decisions contributing to Article III exceptionalism. The exclusion of cameras in federal courts is another phenomenon suggesting our federal judges are “too special” for the tawdry scrutiny of the masses. (The rhetoric federal judges have used to reject cameras in the courtroom amply supports Professor McAlister’s thesis about judicial self-interest and self-perception.) Her article also made me wonder how the increased difficulty today of obtaining Senate confirmation affects judicial notions of “specialness” or otherwise affects subsequent judicial behavior. All this is to say that this article is generative. It is just the beginning of the tremendous contribution Professor McAlister’s work can make to our understanding, and perhaps reform, of the operation of the federal judiciary.

Bringing Real Harm Back to Canadian Free Speech Law

May 26, 2023 Leonid SirotaAdd a Comment

Leonid Sirota

Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approach to adjudicating freedom of expression claims, and an intriguing suggestion for what may replace it.

As Hutchison points out, and as I have noted elsewhere, things didn’t start out this way. At first, the SCC held that any law whose purpose was to restrict expression amounted to a limitation of the freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, which could only be upheld under s. 1 of the Charter if “demonstrably justified in a free and democratic society.” Only when the impugned law affected expression incidentally would the values associated with this right be relevant: political participation, the search for truth, and individual self-fulfillment. If these were impaired, a potential violation of s. 2(b) might still be on the cards, subject to justification under s. 1.

But the tail quickly came to wag the dog. When it was asked to consider the constitutionality of prohibitions on hate speech in R v Keegstra, the SCC chose to assess the expression at issue with reference to these same values. While it held that hate speech was prima facie protected expression, hate speech’s failure in the SCC’s eyes to do much for political participation, the search for truth, or even self-fulfillment meant that bans were justified.

This was so not only for the provisions of Canada’s Criminal Code, which provide a number of important safeguards and defenses, notably truth, but also for prohibitions in anti-discrimination statutes, to which even truth is no defense. As Hutchison summarizes Whatcott v Saskatchewan (Human Rights Commission), the SCC’s most recent decision in this area, “certain forms of expression advance free expression values, while other forms of expression serve to undermine those values. If expression is found to undermine free expression values, then the government will have freer scope to legally restrict it.”

Hutchison’s careful reading of the SCC’s hate speech jurisprudence exposes its incoherence, subjectivity, and indeed failure to protect the values it invokes as constitutive of the freedom of expression. Instead of protecting the search for truth by individuals, however misguided this may sometimes prove to be, this case law rests on the conceit that the SCC has access to the truth, and that little is lost when competing views are prevented from being aired. Since the SCC has upheld hate speech bans that make no exception for true statements, its commitment to the value of truth seems rhetorical at best. The value of self-fulfillment, meanwhile, is turned from a justification for free expression into one for censorship in the name supporting the collective well-being of the groups victimized by hate speech. Last but not least, democracy is made into a synonym for tolerance―which, as Hutchison rightly notes, it isn’t always in Canada, any more than in other places―and, thus, into yet another justification for silencing those who will not get with the program.

Hutchison’s focus is on the SCC’s hate speech cases. However, his charge that the SCC’s invocation of the values that support freedom of expression is no more than a rhetorical smokescreen for restricting expressive freedomis borne out by the SCC’s treatment of other issues. For example, it has upheld the use of compelled speech in the face of a dissenting judge’s protestation that ordering a person to make “statements of facts in which, rightly or wrongly, he may not believe, or which he may find inaccurate, misleading or false” amounts to ordering him “to tell a lie.” So much for the search for truth.

Democratic participation fares little better. As I have pointed out elsewhere, “no debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.” Thus, the SCC has upheld restrictions on independent campaign expenditures so draconian that they prevented the publication of an ad in a national newspaper, back when ads in newspapers were still a thing. This was done, needless to say, in the name of enhancing the democratic process.

To address the flaws he identifies in the SCC’s freedom of expression jurisprudence, Hutchison proposes a new approach to the proportionality analysis that, through s. 1, governs the justification of limitations on Charter rights. This approach would “focus on the impairment of actual expression rather than underlying values,” which can be “easily employed to justify the suppression of disfavoured ideas.”

At the balancing stage of the proportionality analysis, Hutchison argues, the limitation of the freedom of expression should be set off not against the government’s objectives, as is now the case, but “the individual or social harms prevented by the restriction.” The harms, moreover, must be more than speculative—another distinction with current law, which gives considerable leeway to the government’s “reasonable apprehensions” of harms that might be produced by unregulated expression.

The language of harm can be, and in recent years has been, deployed expansively to justify all manner of restrictions on speech. Hutchison proposes a cabined definition to prevent the notion of harm from becoming a stand-in for the “values” he urges the SCC to discard, as well as to promote consistent and predictable adjudication in freedom of expression cases. Drawing on other cases that have considered the notion of harm, he suggests that limitations on the freedom of expression can only be justified where there is “tangible” “evidence that the targeted expression is likely to cause either (1) harm to individuals whose autonomy or liberty may be injured or (2) harm to society by predisposing individuals to antisocial conduct.” Harms that have not yet eventuated need to be discounted by the likelihood of their doing so.

This part of Hutchison’s argument is, I am afraid, vulnerable to criticism. I may trust him with applying the harm test as he frames it ― though, as will presently be apparent, I will not always be happy with the outcomes ― but I do not think I would trust the SCC. Hutchison’s test is an improvement on the Court’s current free-flowing invocation of “values,” but I doubt that whether an individual’s autonomy is injured by speech, let alone whether she will be predisposed to anti-social conduct, are matters that can be objectively resolved on the basis of judicially cognizable evidence. The prospect of manipulation by a willful court—which after all is the reason why Hutchison’s article is necessary and important—still lurks. Even apart from that, these questions are surely subject to reasonable disagreement.

Thus, Hutchison argues that Canada’s criminal hate speech statute would be constitutional on his approach. This is partly because of the various protections, including the defense of truth, available to the accused. Partly, though, this is because he believes that his harm requirement was met on the facts of Keegstra. There, a teacher’s antisemitic rants to his students “targeted a minority group that, within living memory, was subject to one of the deadliest extermination campaigns in human history” and “by denying the reality of the Holocaust itself … might increase the risk of similar tragedies occurring in the future.” One might wonder what tangible evidence there would be for such pessimism. One might also argue, or at any rate I have argued, that it is not hate speech, but the more polished and insidious insinuations of politicians that truly imperil minorities.

Nonetheless, Hutchison’s arguments have the merit of calling attention to the subjectivity of the SCC’s current approach to the justification of limitation on the freedom of expression, and indeed of other rights. His call for a more objective approach is no less important ― perhaps all the more so ― even if there is reason to doubt that his own proposal is objective enough. So is the focus on the costs and benefits to actual people rather than to abstract values. And so too is Hutchison’s insistence on real evidence to support the government’s claim that it has good reason to limit constitutional rights. The Charter itself, after all, only condones limitations “demonstrably justified in a free and democratic society.”

In short, Hutchison has done the Canadian legal community, and indeed the Canadian public, a considerable service. He has shown that the SCC’s long-dominant approach to freedom of expression cases is only a pretense of a defense of this right. In truth, freedom of expression in Canada is a privilege for those whom the SCC considers sufficiently inoffensive to the values of which some its judges have openly proclaimed themselves the ultimate guardians. There is a lesson there, too, for those in the United States and elsewhere who may look to Canada for what they may deem a more balanced approach to reconciling the imperative of the freedom of speech with the reality that speech can, indeed, deserve our hatred. The Canadian model is not a reconciliation, but a usurpation. Be careful what you wish for.

I would conclude with the following observation. Hutchison is not primarily a constitutional lawyer; he is a scholar of corporate law. His ability to challenge the entire framework of freedom of expression law built up by the SCC over more than 30 years ― something that, as Paul Horwitz has noted elsewhere, seldom happens in the cozy world of Canadian public law ― is above all proof of his curiosity and willingness to pursue interesting questions wherever they lead. But it is also testament to the value to scholarship and to legal inquiry more broadly of outsiders, in the broadest possible sense of the word. People who dare cross disciplinary boundaries or, in other cases, jurisdictional, or indeed ideological ones, can teach us more than those who never leave their geographical and metaphorical home.

The Problem is the Court, Not the Constitution

Apr 27, 2023 Jonathan FeingoldAdd a Comment

Jonathan Feingold

“But first, we must believe.” So concludes The Antiracist Constitution, where Brandon Hasbrouck confronts an uneasy question: In the quest for racial justice, is the Constitution friend or foe? Even the casual observer knows that constitutional law is no friend to racial justice. In the nineteenth century, Plessy v. Ferguson blessed Jim Crow. In the twentieth century, Washington v. Davis insulated practices that reproduce Jim Crow. Now in the twenty-first century, pending affirmative action litigation invites the Supreme Court to outlaw efforts to remedy Jim Crow.

Of course, “constitutional law” is not some independent and self-executing thing. It is little more than what five Supreme Court Justices say the Constitution means. We might, accordingly, reframe the opening question and instead ask: Has the Supreme Court been faithful to the Constitution? Hasbrouck offers a bold response. Since at least the fall of the Civil War, the Supreme Court’s race jurisprudence has been defined by constitutional infidelity. Hasbrouck views the Constitution as an antiracist document that holds the “tools of abolition democracy.” For the antiracists and abolitionists in the room, Hasbrouck has a message: The Constitution is on our side. Do not misread constitutional law for the Constitution. And to reclaim constitutional law, we must first reclaim the Constitution.

I want Hasbrouck to be right. I want a Constitution that distinguishes Jim Crow from affirmative action; grandfather clauses from race-neutral alternatives; racism from antiracism. I want to believe. But the story Hasbrouck tells would indict 150 years of constitutional jurisprudence. Hasbrouck is prepared. To put it in social-media vernacular, he came armed with receipts.

Through a kaleidoscopic highlight reel, Hasbrouck captains a journey through white supremacy in America. But he cautions that the Constitution is not to blame—at least not our Constitution. In Hasbrouck’s words, one hears echoes of the late Justice Thurgood Marshall, who on our nation’s 200^th birthday refused to celebrate the Constitution of our Founders. “While the Union survived the Civil War,” Marshall underscored, “the Constitution did not.” Our Founders’ Constitution died with the Confederacy. Our Constitution rose in its aftermath.

To understand our Constitution, Hasbrouck uplifts “oft-ignored original public meanings of the Reconstruction Amendments.” This “originalist” turn builds on scholarship that documents how the Reconstruction Congress used and endorsed race-conscious tools to build a new America. Specifically, Hasbrouck features the arguments of antebellum abolitionists and the Reconstruction Amendment’s congressional champions. He also centers an all-too-frequently overlooked constituency: Black Americans. Hasbrouck explores how contemporary Black communities viewed the broader project of Reconstruction—and what this says about the Constitution itself. Black Americans saw the Reconstruction Amendments as integral to a racial project to transform and remake America’s social, economic, and political orders. Taken together, these diverse historical sources of original public meaning reveal a document infused with, and animated by, antiracist and abolitionist commitments.

To complement this history, Hasbrouck interrogates the origins of constitutional colorblindness, a judicial philosophy often deployed to defuse antidiscrimination law’s liberatory promise and potential. Proponents of colorblindness trace the theory to Justice Harlan’s Plessy dissent. Writing for himself in one of the Court’s most notorious cases, Harlan proclaimed that “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The ritual of invoking Harlan’s words holds a certain logic. As with right-wing entities that appropriate civil rights icons like Martin Luther King and Brown v. Board of Education, this rhetorical move shrouds racially regressive projects under the veil of equality itself. Hasbrouck pulls back the veil through a simple yet uncommon tactic: he places Harlan’s language in context. As Hasbrouck explains, Harlan was no abolitionist interested in realizing the promise of multiracial democracy. To the contrary, Harlan harbored white supremacist views and believed de jure segregation was unnecessary to uphold America’s racial hierarchy. Harlan’s words speak for themself: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.”

The Antiracist Constitution leads to a liberating realization. Those on the front lines fighting for an antiracist and abolitionist America enjoy more than moral authority. They also enjoy constitutional authority. Constitutional law continues to impede racial justice in America. But the problem is not the Constitution. The problem is a Supreme Court whose hostility to civil rights comes in spite of, not because of, the Constitution. If such a claim appears bold, one reason is that constitutional fidelity has long been the exception to the rule—the outlier to a constitutional jurisprudence that privileges the status quo over constitutional command.

Against this backdrop, Hasbrouck invites us to reclaim our Constitution. This entails more than locating antiracist and abolitionist politics within the Constitution itself. It also requires recuperating color-consciousness as constitutionally compelled, not just constitutionally permitted. It also requires challenging colorblindness as not simply anti-egalitarian, but also anti-Constitution. One might say Hasbrouck calls on us to shift from racial justice defense to racial justice offense. The Constitution has our back. But first, we must believe.

Former President Trump: Inflammatory Speaker or Criminal

Mar 30, 2023 Mark KendeAdd a Comment

Mark Kende

There can be no doubt that January 6, 2021, was one of the worst days in United States history. Outgoing President Donald Trump held a rally with supporters near the Capitol, urged them to keep “fighting” (the adverse election results and more), and sent them to illegally storm the barriers of the U.S. Congress. A Trump supporter lost her life, and numerous Capitol police and security officials were injured trying to defend the site. Many Trump supporters carried weapons but, miraculously, nobody in Congress was injured. Among the attackers were members of right wing extremist groups like the Proud Boys, who Trump encouraged.

One of the key questions in this tragic episode is whether the President himself committed a crime by engaging in inflammatory speech. The January 6 Congressional Committee has urged the U.S. Department of Justice to bring charges against Trump. But one legal defense that President Trump will employ is that the U.S. Constitution’s First Amendment protects his speech. Law professors Alan Z. Rozenshtein and Jed Shugerman answer the question of whether this defense should prevail in their impressive forthcoming article, January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.

The article focuses principally on whether the Supreme Court’s famous per curiam decision in Brandenburg v. Ohio protected his speech. In Brandenburg, the Court ruled unconstitutional an Ohio Criminal Syndicalism statute that was being used to prosecute Ku Klux Klan members. The KKK members were verbally advocating disobedience of the law and various racist views. The Court adopted a multi-part test for when a prosecution against inciting speech could be allowed under the First Amendment and said the test had not been satisfied. The test required that a speaker deliberately advocate illegal conduct, and that there be a likelihood of imminent lawlessness taking place. The Court in Brandenburg said mere advocacy of illegality, as opposed to incitement, was not enough. And there was certainly no imminent danger.

Brandenburg is still good law, and there have been cases where the Court seems to have given a very pro-speech interpretation of the test. But it is a very short opinion on a vital topic. It is also not clear how the case applies in certain contexts, like the Internet. Trump’s January 6 speech was ambiguous in that parts of the speech urged fighting, while other parts were more toned down. Yet most people agree that President Trump’s speech encouraged and supported the rioters. Nonetheless, a strong formalistic reading of Brandenburg might protect him. To put it another way, the case’s meaning is not perfectly clear, and the January 6 context is especially difficult.

The authors note these problems, as well as earlier inflammatory incidents in which Trump was involved. The article’s authors argue that “The key lesson from these cases is that ’mere abstract teaching‘ is different than ’preparing a group for violent action.’” The authors use other incitement-type cases to gain a perspective on the problem, such as NAACP v. Claiborne Hardware Co. (NAACP organizer essentially threatens members who are not sufficiently committed to protest effectively).

The authors also reference the one major decision dealing with similar issues regarding President Trump’s actions on January 6, Thompson v. Trump. There, D.C. District Court Judge Amit Mehta conceded that Trump did not “explicitly encourage the imminent of use of violence,” but held that Trump’s lengthy effort to discredit the election could be viewed as “encouraging the attack on the Capitol.” Perhaps inspired by this opinion, the authors argue that the crucial incitement answer is found in the overall context of the situation, which included actions even before the worst statements. Based on this framework, the authors make a strong case that Trump took actions that convert his statements to unprotected incitement.

For example, the authors show that Trump urged security officials to remove the “magnetometers” that were keeping the January 6 crowd farther away from him and the Capitol. Moreover, Trump made a statement that ratified the rioters’ view that Vice-President Pence deserved to be killed for his inaction. And Trump apparently wrestled with his Secret Service driver, in an effort to get the car to the Capitol where the riot broke out. The authors argue that these acts, along with Trump’s earlier fervent rejections of the election results, “represent concrete steps to incite, insurrect, and obstruct.” What makes the article even more interesting is the analogy it draws to incidents involving the era of Aaron Burr. Trump’s actions removed any ambiguity from the intent behind his speech and pushed it into the criminal category.

The one problem with the article—one that shows the difficulty of the issue—is that some of the “actions” that it refers to, as distinct from speech, are actually expression. But overall, the article is helpful in clarifying the incitement principles regarding President Trump’s speech and actions on January 6, 2021.

Belonging, Community and Allegiance: Frederick Douglass’s Theory of Citizenship

Feb 27, 2023 Rebecca ZietlowAdd a Comment

Rebecca Zietlow

Frederick Douglass was a monumental presence in the antebellum era, a leader in the antislavery movement, and an essential figure in the Reconstruction Era. Until now, however, legal scholars have largely neglected to plumb the depth and breadth of his philosophical works. In Douglass’s Constitutional Citizenship, Bradley Rebeiro presents Douglass as not only a skilled political strategist, but also a sophisticated philosopher who articulated a detailed theory about the link between citizenship and fundamental rights.

According to Rebeiro, Douglass adopted a broad vision of citizenship rights to support his argument that Black people were part of “the People” protected by the United States Constitution. Rebeiro explains, “The Constitution’s Preamble set out a citizenship worthy of one’s allegiance and devotion, if only the Union were to embrace fully the promise of its own aspirations as articulated in the Declaration of Independence and reimagined in the Gettysburg address.” In Dred Scott v. Sandford, the United States Supreme Court reached the opposite conclusion. By contrast, Douglass’ writings provided a blueprint for the full emancipation of enslaved people. It was this emancipatory project—one that entailed not only the end of enslavement, but inclusion as equal citizens in the national polity—that eventually animated the Reconstruction Congress.

Although historians refer to the Reconstruction Era as the Second Founding, constitutional scholars know far too little about the second founders. In recent years, constitutional scholars have turned their attention to the leaders of the antislavery movement who developed constitutional arguments that influenced the Reconstruction Era. Frederick Douglass stands out among those antislavery constitutionalists because of his personal experience, his effective advocacy skills, and his sophisticated analysis of the legal and philosophical issues raised by the fight against slavery and for human rights.

Douglass spoke from a lived experience of enslavement and effectively drew on that experience as an advocate. During the antebellum era, Douglass travelled throughout the United States and abroad to garner support and raise funds for the antislavery effort. During the Civil War, Douglass was one of the few Black leaders to meet personally with President Abraham Lincoln. Douglas helped persuade Lincoln to allow people who had been freed from slavery to serve in the Union army, a key to the success of the Union effort and to the fight for measures granting rights to newly freed slaves. After the war, Douglass continued to advocate for the rights of free Black people, including those freed from slavery. He maintained a high-profile political role for the next thirty years, fighting for voting rights and women’s rights and resisting the era of retrenchment after the demise of Reconstruction.

Rebeiro’s article is part of a group of papers presented at the Salmon P. Chase Symposium, this year, organized by Randy Barnett, who himself has highlighted Douglass in his writings on antislavery constitutionalism.  Douglass has also received attention from other libertarian scholars, and Justice Clarence Thomas quoted Douglass in his dissent to the Court’s decision in Grutter upholding race-based affirmative action. Douglass was a controversial figure in his own time. He began as a protégé of William Lloyd Garrison, who condemned the U.S. Constitution as a “covenant with death and an agreement in hell.” Douglass created a major rift in the abolitionist movement when he announced that he had changed his mind and had come to believe that the Constitution condemned slavery. Regardless of the reason for his change of heart, it is clear that Douglass understood the power that claiming the Constitution as his own would have for his antislavery agenda. Rebeiro’s article helps us to understand why.

In this article, Rebeiro details Douglass’ vision of belonging, community, and allegiance in his writing on the rights of citizenship. Douglass describes an inclusive national community built by its own members, including newly freed slaves. In this inclusive community, government would protect the natural rights of its members in return for their allegiance to the community. As Rebeiro explains, Douglass based his views on the social contractarian ideology of Locke and Hobbs. But by contrast to libertarians like Barnett, Rebeiro argues that community membership, not individual rights, were central to Douglass’ vision of citizenship.

According to Douglass, the central goal of the community is to “maximize the health and well-being of its members” and protect the common good. Among the most important rights in a healthy community is the self-ownership of its members. This right, previously denied to enslaved persons, lays the foundation for self-governance and the primacy of natural rights for all. Other leaders of what historian Kate Mazur has called the first civil rights movement, the movement for equal rights for free Black people, also employed the language of citizenship. Antislavery activists such as John Bingham also seized on citizenship as a source of fundamental rights.

Who would belong to Douglass’s envisioned American political community? Douglass advocated birthright citizenship—that every person born in this country automatically became a citizen. Birthright citizenship was a radical idea in Douglass’s time, although it was shared by some other antislavery constitutionalists, such as Lysander Spooner and Joel Tiffany. Douglass understood that in order to fully belong, free Black people needed to demonstrate their allegiance to the national community. It was especially important to show that free Black people belonged in the country to combat the antebellum colonization movement, leaders of whom argued that free Black people should be sent “back” to Africa. Thus, he encouraged Black men (including those who had just been freed from slavery) to show their allegiance to the national community by volunteering to fight for the Union Army. At the same time, Douglass pushed President Abraham Lincoln to allow Black people to serve in the army. Lincoln eventually agreed, and issued the Emancipation Proclamation as a war measure, justified by the need of the Union army for reinforcement by newly freed slaves. Douglass’s strategy proved successful. During Reconstruction-era debates, members of the Reconstruction Congress cited the sacrifices of Black Union soldiers as they spoke in favor of granting them birthright citizenship and fundamental rights.

Throughout his life of political advocacy, Douglass wrote volumes of political and philosophical works, full of insight that can help scholars to understand the constitutional changes wrought—and promises soon betrayed—by the Reconstruction Era. Readers of Rebeiro’s article will begin to appreciate the depth of Douglass’ insights and yearn to learn more about this fascinating figure. Douglass’ Constitutional Citizenship is an important contribution, not only to the field of legal history but also to the emerging field of scholarship about the constitutionalism of social and political movements. Douglass is finally getting the attention that he deserves from legal scholars, and Rebeiro is poised to be a leader in the field of Douglass studies.

Religious Liberty for Some

Jan 30, 2023 Cary C. FranklinAdd a Comment

Cary C. Franklin

Since Dobbs came down, I have given many talks and talked with many journalists about abortion law, and the one topic that always arises is religion. People are aware that the Roberts Court has been deeply solicitous toward religious claimants seeking exemptions from various laws—almost always religious conservatives who refuse to provide services to LGBTQ people, obey COVID restrictions, or provide health plans that cover contraception. People often ask about the prospect of using these expansive protections to secure exemptions from abortion bans for people motivated by religious commitments to seek or provide abortions. Sometimes they ask about using the Establishment Clause to argue that abortion bans are religiously motivated and endorse a religious doctrine many Americans don’t share. People asking these questions are generally optimistic. Sometimes, that optimism is coupled with a certain satisfaction that the Court has painted itself into a corner: the Justices may have expanded protections for religious people in cases involving conservative Christians, but surely, they are now compeled to extend those protections to religious liberals as well.

Richard Schragger’s and Micah Schwartzman’s new article, Religious Freedom and Abortion, provides sharp and insightful analysis of these questions. The article examines recent establishment and free exercise decisions and shows that, in many cases, religious liberals who do not subscribe to conservative Christian conceptions of when life begins or who have religious motivations for seeking or providing abortions should prevail under the Court’s new doctrines. But, the article argues, to think such claimants will prevail is to misunderstand the politics of the Roberts Court’s First Amendment jurisprudence—and the fact that it’s politics all the way down.

On the establishment side, Schragger and Schwartzman discuss instances in which lawmakers enacting anti-abortion legislation have violated obligations of religious neutrality by making arguments explicitly biased against people whose religious commitments lead them to support abortion rights. In equal protection and free exercise cases, the Court uses a totality of the circumstances approach to detect animus or illicit purpose underlying facially neutral laws. Schragger and Schwartzman argue there’s no reason the same test shouldn’t apply under the Establishment Clause, and that some anti-abortion legislation ought to be in trouble under this test—particularly given the comments the Court counted as evidence of religious bias in Masterpiece Cakeshop.

Establishment-based challenges to abortion restrictions appear even stronger under reasoning endorsed by Justice Alito and three other Justices in a recent case involving Yeshiva University. In that case, Alito argued that an antidiscrimination law that compelled the University to recognize an LGBT student group “impos[ed] its own mandatory interpretation of scripture” and required Yeshiva to “make a ‘statement’ in support of an interpretation of Torah with which the University disagrees.” On this understanding, Schragger and Schwartzman observe, “[a]n abortion ban might ‘impose its own mandatory interpretation of scripture,’ and, in prohibiting ‘conduct that aids and abets the performance or inducement of abortion,’ it might also be described as requiring religious organizations, and their clergy, to speak in a manner consistent with an interpretation of the Bible with which they disagree.”

These claims have little chance of succeeding at the Court. There’s an outside possibility the Court will dispose of the religious neutrality requirement altogether and simply permit religiously motivated abortion bans. Some academics are pushing the radical theory that preventing religious people from using law to impose their religious views on others violates free exercise, and some Justices could adopt that outlook. But, Schragger and Schwartzman argue, it’s more likely the Court will “avoid[] the total abandonment of a secular purpose requirement while rarely, if ever, enforcing it”—even in cases where anti-abortion lawmakers clearly fail to satisfy “the obligation of religious neutrality” as the Roberts Court has defined that concept in free exercise cases.

One might think free exercise provides a more plausible route to victory for religious liberals because expanding free exercise rights has been a key priority of the Roberts Court. Smith—which held that free exercise does not require exemptions from neutral and general applicable laws—may still be good law, but the Court has substantially limited or declined to apply it in recent cases. Religious conservatives seeking exemptions from facially neutral laws prevailed in Burwell, Masterpiece Cakeshop, and Fulton, and the Court dramatically expanded free exercise protections in a series of COVID decisions holding that public health regulations limiting social gatherings, including for religious worship, were not “generally applicable” and thus triggered strict scrutiny under the Free Exercise Clause. As the Court explained in Tandon, “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”

The victors in these cases were conservative Christians. But, in principle, the Court’s new approach to free exercise should also yield victories for religious liberals. The legislative histories of some abortion restrictions reveal comments at least as hostile to religious liberals as the comments in Masterpiece Cakeshop were toward religious conservatives. And all abortion bans ought to be in serious trouble under Tandon’s single secular exception approach because they all contain exceptions—at a minimum to preserve the pregnant person’s life, sometimes also for rape and incest, fetal abnormality, and the pregnant person’s health. The Court made it clear in Tandon that the question of whether “activities are comparable . . . must be judged against the asserted government interest that justifies the regulation.” In the case of abortion, the government’s interest is in protecting the fetus, and religious exemptions present the same threat to the fetus as secular exemptions. Indeed, in a case involving public health regulations, the Sixth Circuit explicitly held that the government cannot favor “life-sustaining” activities over “soul-sustaining” activities that pose similar risks.

This doctrine should provide a solid foundation for arguments for religious exemptions from abortion bans. But Schragger and Schwartzman are rightly confident the Court will not apply its new free exercise jurisprudence in a consistent manner. Their article examines various unprincipled ways the Court could decline to protect religious liberals. The most radical approach, advocated by some scholars, would be to hold that religious liberals (often the focus here is on liberal Jews) are not entitled to free exercise protections because, unlike religious conservatives, they are not actually obligated to obey religious law.

But the Court does not need to break so radically with tradition. Another way to pick and choose who gets protection would be to revive Smith. Indeed, Schragger and Schwartzman speculate the Justices may have decided to limit and intermittently ignore Smith, rather than clearly overrule it, in anticipation of free exercise challenges to abortion bans. If the Court were to overrule Smith, Schragger and Schwartzman show there are additional (inconsistent and deeply unprincipled) ways to play around with the concept of compelling interest to deny religious people exemptions from abortion bans.

The doctrinal analysis in this article is smart, cogent, and helpful. But the thing I like best about this article is that it provides a particularly good model of how to do legal scholarship when confronted with a deeply politicized Court intent on implementing a partisan agenda. The article is neither naïve nor despondent. It does not pretend the Court will implement its new doctrines and interpretive methodologies consistently, and that the expansion of free exercise exemptions will actually provide religious liberals with a means of winning abortion rights from these Justices. Yet the article is not simply critical or cynical. Relief may not come from this Court, but, Schragger and Schwartzman argue, there may be greater scope for religious freedom arguments on behalf of religious liberals under state constitutions. And just because they’re skeptical of religious liberals’ prospects of securing abortion rights under the First Amendment by persuading the Justices to apply the law evenhandedly doesn’t mean they’ve given up on any possibility of change. They have shown that the Court is engaged in a political project. Politics is the best, and perhaps the only, way to counteract that project.

Movement on Judges

Dec 2, 2022 Leah LitmanAdd a Comment

Leah Litman

A National Law Journal article described how, in keeping with prior Democratic administrations, President Biden has relied less on clerkship experience—or at least a particular kind of clerkship experience—than prior Republican administrations. The article observed that while “the road to the bench for many Trump nominees ran through the chambers of a handful of particular judges and justices” (such as Justices Thomas and Scalia), “Biden has relied far less on feeder judges in his nominations.”

Why might that be? And is that a good or a bad thing? A recently published article by Brandon Hasbrouck offers one way of thinking through this. In Movement Judges, Hasbrouck writes movingly (no pun intended) about the importance of appointing jurists “who understand[] that our Constitution contains the democracy-affirming tools we need to dismantle systems of oppression”—judges who “consistently bear in mind the consequences cases have for individuals’ real lives beyond the courtroom.” (Full disclosure: I’m thanked in the article’s acknowledgments for comments on a draft.) Hasbrouck further describes a movement judge as a jurist who is “more committed to shifting fundamental understandings of how the law operates.” And he contrasts these judges and the strategies for appointing these judges with the kinds of judges and the kinds of strategies that Republican administrations have pursued; Hasbrouck describes the Republican strategy as a top-down, hierarchical approach to judicial selection that may have advanced the “conservative legal movement’s” goals, but does not offer the kind of sociological or democratic legitimacy that movement judging would.

Part of what makes Hasbrouck’s article so important is that it challenges some recent calls for progressives to turn to the Constitution outside the courts, or popular or legislative constitutionalism, in the current era of Republican-captured federal courts. While there are many powerful criticisms of judicial supremacy, I’ve sometimes wondered what such accounts have to say about cases where courts are simply asked to enforce existing laws or to interpret existing laws, yet refuse to do so. What would jurisdiction-stripping proposals do for those cases? What exactly is popular constitutionalism or legislative constitutionalism supposed to do in those circumstances? In Part II of Hasbrouck’s Movement Judges, Hasbrouck explores how even the most revolutionary liberationist movements depend on courts, which leads him to conclude that they demand movement judges too. It’s a timely rejoinder and complication to existing accounts calling for progressives to look beyond the courts.

What makes Hasbrouck’s case for movement judges even more powerful is the case studies he provides of movement judges. There’s Supreme Court Justice Sonia Sotomayor; Chief Judge of the Fourth Circuit Roger Gregory; Judge Carlton Reeves of the Southern District of Mississippi; and North Carolina Supreme Court Justice Anita Earls. If you haven’t heard the last name, you should: Justice Earls was one of the Justices in that court’s Harper v. Moore, which will be heard by the Supreme Court in December. She also authored the pathmarking recent opinion that addressed what to do about legislation and state constitutional amendments that were enacted or proposed because of the support of legislators elected from unconstitutionally racially gerrymandered districts, and was in the recent majority opinion requiring the state to provide a sound education for all North Carolina students. Hasbrouck more than makes the case for these movement judges without the benefit of the more recent opinions, but the judges’ recent opinions only underscore that Hasbrouck knew what he was doing, both when he identified some jurists as movement judges and when he wrote so powerfully about their importance.

Another case that’s pending at the Supreme Court underscores Hasbrouck’s emphasis on the importance of movement judges who will advance the law to serve movement aims. It also suggests that Republican administrations have, despite the top-down approach to judicial selection, done a good job of selecting judges who use their positions to move the law to further “movement” (broadly conceived) goals. The case (Jones v. Hendrix) is also about an issue that Hasbrouck wrote about just a few years ago in Saving Justice: whether people who were wrongly convicted or mistakenly sentenced in federal court because of an error of statutory interpretation can file a habeas petition challenging their conviction or sentence. A little more than a decade ago, the federal courts seemed to agree that the answer was yes. People who received more time in prison than the law allowed, or who were convicted of something that isn’t a crime, could indeed file a habeas petition.

But then a judge on the Tenth Circuit suggested that all of those federal courts were wrong and pioneered a different approach. That judge, of course, was Neil Gorsuch, who’s now on the Supreme Court that will ultimately decide the question. It’s yet another case study that underscores the importance of movement judges—at least in the sense of jurists who are focused on moving the law in particular directions. And if you have doubts about how the Court should resolve the case, Saving Justice should convince you. It also might convince you that a current or future administration should select Brandon Hasbrouck as a movement judge. (The opening of Movement Judges describes Hasbrouck’s interview with a judicial selection commission.)

Hasbrouck’s Movement Judges sounds a cautiously optimistic note about President Biden’s nominees; he says that the administration is “shooting in the right direction” even if the administration is not “aiming at the target.” What Hasbrouck hopes to see is a slate of judges open to the possibility of pursuing democratic movement goals in a movement-oriented way, rather than judges with a more establishment bent or outlook toward the world. That is, the administration might be looking just for nominees with certain credentials in a particular hierarchy. They might also be appointing judges who are actively looking to move the law to further movement goals, in the way that some recent Republican nominees have attempted to do so.

But maybe the fight isn’t just about what administrations should look for when they are selecting judges, but about what judges should do when they decide what kind of judge they want to become over the course of their career. Hasbrouck’s article might be directed not just to future Democratic administrations as they consider what kind of judges to appoint, but also to individual nominees who make it through the hurdle of the confirmation process. And maybe some of them will find reasons to be open to the (more democratic) movement demands that Hasbrouck encourages them to listen to.

We Care

Nov 4, 2022 Paul HorwitzAdd a Comment

Paul Horwitz

The leak of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization was an embarrassment to the Supreme Court as an institution. Its perpetrator(s) ought to be found out and censured or punished. But consider the leak in a different light: as an experiment in communications. When the final opinion came out on June 24, there was no desperate casting-about to understand it. Of course there were additional opinions, including the dissent, to absorb. But as to the meat of the opinion, there was no spectacle of Supreme Court reporters flipping pages on the steps of the Court, trying to boil down tens of thousands of words in an instant; there was no unnecessary lack of public understanding of the decision. The nation was not happier. But was it better served?

Viewed in that light, these two articles are well-timed. They are also nicely complementary. One, Barry Sullivan and Ramon Feldbrin’s The Supreme Court and the People: Communicating Decisions to the Public, is comparatively oriented and practical in nature, drawing on other constitutional courts’ experience to suggest some basic improvements in Supreme Court communications. The other, David Fontana and Christopher N. Krewson’s The Rhetorical Power of the Supreme Court, is arguably less practical but more ambitious. It argues that extrajudicial discussion by the Justices about the Supreme Court constitutes a “rhetorical power” that can spur more productive public discussion of constitutional law. These are certainly different approaches. But both articles agree that the Court faces a legitimacy problem that can in, some measure, be addressed by better communication. We may doubt the likelihood of the cure. But the prescription is well worth the attention, practically and for its own sake.

Fontana and Krewson start with the basic premise that the responsibility of democratic public officials to speak comprehensibly to the people extends beyond the “rhetorical presidency” and “rhetorical legislature,” and includes the “rhetorical Supreme Court.” Of course, the Court “speaks” all the time. But its opinions are neither “widely known nor widely understood. If the Justices want to speak to the people they must sometimes speak like the people.”

This, they contend, the Justices have been doing to an increasing degree, by “speak[ing] more about important constitutional issues in public.” This is a good thing: without sacrificing legitimacy, “The Justices can be bilingual: They can speak the technical language of the judicial opinion and the comprehensible language of the layperson,” thus enabling more Americans to take part in our “constitutional conversations.”

Fontana and Krewson develop their argument through a set of interesting studies, surveying reactions to public statements and appearances by Chief Justice Roberts and Justice Sotomayor, as well as a hypothetical appearance by Justice Alito. They find that even a fairly bloodless official statement by Chief Justice Roberts, asserting that “[w]e do not have Obama judges or Trump judges,” had a positive effect on public perceptions of the legitimacy of the Supreme Court. But they are more enthusiastic about the “democratic rhetorical power” of more informal and approachable justices, of whom Justice Sotomayor is their prime example. (Those who have seen Justice Thomas’s public appearances might add him to the list.) Sotomayor, they argue, is effective because she is direct, personal, appeals to her own life experience, and emphasizes her humanity. Such an approach, they find, strongly increases the public’s favorable views of Sotomayor—or of Justice Alito, making a hypothetical appearance using a similarly personal style—and of the legitimacy of the Court itself. Such appearances “can be constructive from the perspective of the democratic situation of the Supreme Court,” creating a more engaged public audience than judicial opinions alone can achieve.

There is a lot to engage with in this paper. I surely have not done justice to it here. There are also many points for potential questions or disagreements. That is only natural, given the article’s ambitious scope. It’s also natural given the paper’s use of terms and concepts—legitimacy, connection, engagement, “the democratic potential of the Supreme Court,” “popular empowerment,” and so on—that defy precise definition and are hardly absolute goods.

One might ask, for example: What is the right level of public perception of the legitimacy of the Supreme Court and its members? I take as a given that there is value in sociological legitimacy—in a general public view that the Court is legitimate. But, as Richard Fallon has noted, we might also think of the Court in terms of moral and legal legitimacy. Personable judges launching a charm offensive on the lecture circuit might unduly improve public perception of the legitimacy of a Court that is not, in fact, particularly legitimate across those other dimensions.

Similarly, what is the optimum level of approachability when Justices speak to the public? Contrasting Roberts’s statement with Sotomayor’s speech, the authors argue that public engagement was limited in the former case because “there was no mention of Roberts’s life story, no example of particular people positively affected by the worldview reflected in his statement, or any other attempt to stimulate.” Surely this limited its public impact. But one might just as easily be grateful for these omissions. We expect what we grow accustomed to. Once presidents started planting carefully scouted “normal people” in their reserved seats at the State of the Union Address, and warmly exploiting them in their speeches, this junk quickly became an annual ritual. It’s effective, but awful. Nor does it ensure that the audience actually understands the state of the union any better—even if it thinks it does. Would Roberts’s statement truly have been better had it included a homespun invocation of boyhood in Indiana? The Court’s opinions could be more readable and much shorter. But there is a lot to be said for not being too approachable and too informal.

I have other questions. Are the statements they examine truly “substantive,” as they suggest, or mostly merely vapid? What does it mean to call such statements and appearances “authentic?” Does it make a difference, in considering their ostensible authenticity, that the most personably oriented appearances by the justices often consist of millionaires hawking their “authentic” books to make more millions? But one may take all this as a compliment. Such questions are a natural consequence of a paper that is commendably ambitious, that brings a variety of tools to its work, and that engages with the question of public appearances by justices on a deeper and more detailed level than most treatments of the subject.

Barry Sullivan and Ramon Feldbrin’s article, The Supreme Court and the People: Communicating Decisions to the Public, is, one might say, equally expansive but less ambitious. It begins from a shared concern: the Court speaks primarily through its elephantine opinions, and its failure to communicate its decisions represents a missed opportunity to shore up its “political capital and legitimacy.” The authors are not, however, concerned with extrajudicial speech writ large, or with the “rhetorical power” of the Court and its members as a broad concept. Their article takes taking the centrality of judicial opinions as a given, while asking how well or poorly the Court disseminates its written work.

Why, to take the example that leads off the paper, did reporters do a poor job in reporting the Affordable Care Act decision? Some of the blame clearly lies with the reporters, who race to be first rather than best. But most of it lies with the Court. Its absurd attachment to a fixed “Term” leads it to issue multiple major opinions in a pile at the end of June, making it harder for intermediaries like the press to absorb and convey the import of the opinions. It offers no formal help to the press in understanding those opinions. Its press officer’s remit is limited. Its default position is to exasperatedly blame the press for errors, as if the Court’s indifferent approach does not contribute to them. It may think its approach maintains the institutional seriousness of the Court and keeps it above the fray. But it achieves the opposite result.

Sullivan and Feldbrin’s contribution lies in the comparative materials they bring to bear on the question of Supreme Court communication practices—and, in contrast to Fontana and Krewson’s deeper theoretical dive and unconventional recommendation, in their insistence on “sensible, possible innovations that would improve the Supreme Court’s communication of its decisions to the press and the people.” It ain’t fancy. But it is refreshingly practical.

Many of the innovations Sullivan and Feldbrin discuss have been noted elsewhere. If anything, it would be astonishing that American constitutional scholars are not more aware of them, were it not for the power of American parochialism. But those innovations are usefully brought together here and explained clearly and well. The authors focus on Germany’s Federal Constitutional Court and the supreme courts of Canada and Israel. All three courts have found ways to acknowledge and enhance “the vital importance of correct, complete, and timely accounts of their work.” All of these measures are achievable here.

In Canada, for instance, the Supreme Court employs an Executive Legal Officer, who briefs journalists about the Court’s opinions on an embargoed and off-the-record basis, so that they are able to describe them accurately when they are issued. It “space[s] out the announcements of its decisions so that reporters [will] not be overwhelmed.” It issues “Cases in Brief:” summaries of its decisions designed to be accessible to the lay reader. And, in an effort to reach Canadians outside of its Ottawa sanctum in a way quite different from the speaking tours of individual American justices, it recently began holding oral argument road-shows. (This comes on top of its longstanding practice of televising oral arguments.)

The German Federal Constitutional Court has compensated for the length and complexity of its written opinions by creating a press office “that regularly prepares press releases with detailed descriptions of selected decisions.” It provides advance access to important judgments on a selective and embargoed basis. And its opinions begin with “leading sentences” that provide a clear description of the judgment, a practice that one commentator calls “far more satisfying and useful than the rambling reporters syllabus” for American Supreme Court judgments. The Israeli Supreme Court has experimented with broadcasting its arguments, and provides “short summaries of important decisions” that are issued at the same time the judgments are released to the public. When the court issued an opinion on the controversial question of the citizenship status of foreigners who convert to Judaism outside of Orthodox communities, it “took the unusual step of releasing a Q&A document…with the deliberate purpose to better explain the reasons for the long-awaited and contested decision to reporters and the public.”

None of the innovations described by Sullivan and Feldbrin are beyond questioning, both on their own terms and in terms of their suitability for transplantation to American soil. Many of these questions would fall under the general rubrics of democracy and elitism. Insofar as the practice of providing advance access to and explanation of its opinions will be selective, involving an accredited or invited press, it may smack of special privilege or elitism in a way that might be acceptable elsewhere but unpalatable here. (I set worries about leaks to one side; Americans are doing just fine on that front despite the lack of advance access. And although leaks like that in Dobbs are extraordinary, the seemingly annual post-Term tradition of individual justices airing their grievances to a few hand-picked reporters is no less elitist.)

Others involve the role of the Court. There is an easily crossed line between “explaining” a court’s decisions and propagandizing on behalf of that court qua political actor, illustrated by the reported hiring of a PR advisor by the president of the Israeli Supreme Court to “improve the Israeli Court’s public image.” The justices of our Supreme Court may care about its perceived legitimacy and public support, but still think its actual legal and moral legitimacy require it to let the people decide what they think about it without any interventions on their part. They may also think that even its perceived legitimacy would lose more than it gained from such an attempt. But of course, that is a form of non-neutral public relations strategy too. As Abraham Lincoln said, if you choose not to decide, you still have made a choice.

Both authorial pairs have made a valuable contribution to discussions of the public-facing approach of the Supreme Court. Just as important, in true peanut-butter-and-chocolate fashion, the roughly contemporaneous appearance of both articles adds a complementary value to each one, and to both taken together. Each provides a different focus. In Fontana and Krewson’s case it is the contribution that might be made by individual justices speaking extrajudicially; in Sullivan and Feldbrin’s case it is what the Court might do institutionally to make its opinions more accessible. Fontana and Krewson bring interesting empirical tools to bear on the issues they raise; Sullivan and Feldbrin employ comparative work to expand our sense of what is possible. Fontana and Krewson offer a valuable theoretical discussion; Sullivan and Feldbrin work in the practical realm. Together, they taste great.

In several senses, both papers are also very timely. The Court’s public approval standing has plummeted. Regardless of its legal or moral legitimacy, its role in the culture wars in a polarized society, and its convenience as a target in partisan politics, will not enhance its perceived legitimacy. The justices are well aware of this and are attempting to respond, at least on an individual basis. It is thus an excellent time to think about what the Court could do to shore up its real and perceived legitimacy.

In another sense, one may ask how much anything could help much right now. I say this not because the current 6-3 majority is disfavored by most law professors and journalists and many others; millions of Americans are delighted by it. But it is entirely possible that on both sides of that divide, the overriding concern will not be with “legitimacy” as such, but with acceptable results. The tendency to put that conversation in the language of legitimacy will only “weaponize” that term, to use the cliché of the day. The Court may find that whatever communications strategy it adopts will be the equivalent of baling out a sinking frigate with a tablespoon. That said, the issue is certainly not going away. Between them, these two articles offer food for thought and viable, practical options.

The Press’s Responsibilities as a First Amendment Institution

Oct 3, 2022 Helen Norton1 comment

Helen Norton

At a time when it’s all too easy to dump on the press, it may be surprising to find press law scholar Erin Carroll, a former journalist herself, adding to the criticism. Yet in News as Surveillance, a symposium essay, she illuminates “how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well.”

21^st-century technologies now empower platforms to collect and aggregate information about us, and then to use this information to influence our choices to their own advantage, and in ways that we would resist if we were aware of their efforts. More specifically, platforms’ surveillance of our reading habits and preferences enables them to design and deploy interfaces that change our decisions about when to buy, click on, read, or forward specific content. Informed by data surveillance and fine-tuned through A-B testing, these interfaces can double, triple, even quadruple our willingness to accept online offers and requests.

It turns out that the press is part of this problem. Carroll explains the substantial extent to which news organizations collect—and allow others to collect—data about their online readers. Indeed, “[n]ews websites are among the internet’s worst offenders when it comes to tracking their visitors. News sites contain more cookies and other like devices aimed at vacuuming up user data than do gaming, shopping, sports, or pornography sites.” And here too, the information collected and aggregated by this surveillance enables those sites to manipulate their readers, as some news organizations have studied “how a particular piece of news might make a reader feel” and how to target advertising to that reader accordingly.

Maybe we shouldn’t be surprised. The press now confronts existential threats. It faces an environment where an ever-growing number of speakers compete for our increasingly scarce attention through a variety of features that manipulate us into staying online longer, thus spending more money and shedding more data. Who can blame the press for vying for our eyeballs, our time, our data, and our dollars with the same techniques that rivalrous speakers and platforms are using to bury it?

Carroll can. She describes news organizations’ surveillance of their readers as inflicting injuries to our democracy different in degree and in kind from the considerable harms posed by surveillance capitalism more generally (see, for example, here, here, and here). For instance, armed with the extensive information about our reading habits and preferences served up by surveillance, news organizations can feed us more of what we’re already reading to keep us online as long as possible. In this way, Carroll explains, news surveillance narrows the “menu of news from which we can choose,” limiting our efforts to explore and discover, and reducing our exposure to “surprise and serendipity.” This harmful feedback loop also exacerbates “the very real danger of journalists using likeability and shares as a measure of a story’s importance.”

Carroll also worries that we will be less likely to read the news when news organizations monitor our reading history—and that this, in turn, means that “we will likely know less about our neighbors, our communities, and the world around us. When we act in personal and political capacities it may be from a place of ignorance. Likewise, we may avoid action altogether.” For a brick-and-mortar parallel, think of a public library that tracks what we read and then uses that information to shape our choices about what to read (and what to buy). This is not what we want from libraries—nor from newspapers.

Carroll expects more from the press precisely because it is “a named beneficiary of the First Amendment” that serves the constitutionally valuable functions of watchdog, educator, curator, and more. Although the definition of the “press” for First Amendment purposes is contested, here I adopt (and I think Carroll would too) Sonja West’s functional understanding of the press that attends to its actual ability and commitment to gather news and disseminate it to the public in ways that serve as “a check on the government and powerful people.” Although today almost any of us can be a publisher, West points out that relatively few of us have the training, capacity, or dedication to be newsgatherers.

When the press (as defined above) monitors our reading history and then uses that information to manipulate our choices, it violates the intellectual privacy that is key to our constitutionally protected freedoms of thought and expression. Carroll sees this as an ethical breach, “a special brand of betrayal” by an institution “dependent on its readers’ trust, one that checks abuses of power.” And this betrayal harms not only us, but also the press itself: “it is not a winning long-term business model for the press.” (Carroll is not alone among the press’s defenders in asserting that the press’s status as a First Amendment institution carries with it First Amendment responsibilities as well as First Amendment rights. Peter Coe, for instance, suggests that a news organization’s constitutional protections should depend on its demonstrated commitment to ethical behavior when gathering and publishing the news.)

But by no means has Carroll has given up on the institution she loves. Like others, she calls for new business models and policy measures to relieve some of the economic pressure on the press, thus reducing its financial incentives to surveil its readers. Emphasizing transparency as among the press’s greatest virtues, she also urges the press to reveal its own surveillance practices. Along these lines, she applauds the New York Times for reporting on, and publishing op-eds condemning, its and other news organizations’ surveillance of their readers.

And in other work, Carroll suggests that our democracy would be healthier if at times the rest of us behaved more like journalists. She describes journalism as “a method and a practice—an evolving system for gathering, curating, and conveying information. Among its aims are accuracy and truth, the checking of power, and the creation of spaces for criticism and compromise,” through tools that include “verification using multiple sources, interviewing those with first-hand knowledge, and correcting errors.” In proposing that thinking and acting like journalists can help us build constructive habits of mind, her work parallels the connections drawn by Vince Blasi between free speech and the development of positive character traits like “inquisitiveness, independence of judgment, distrust of authority, willingness to take initiative, perseverance, and the courage to confront evil.”

In News as Surveillance, Carroll exposes some unflattering truths about the institution she so values, even as she shares her continuing hopes for it (and for the rest of us). In so doing, she poses ambitious, maybe existential, questions for the press. What does the press’s behavior tell us about what it values? And what does that, in turn, tell us about whether and when we should value the press?

Lessons from Progressives’ Use of “Conservative” Constitutional Principles to Battle Trump

Aug 18, 2022 Ilya SominAdd a Comment

Ilya Somin

During the Trump Administration, progressives often found themselves resisting administration initiatives by appealing to constitutional principles traditionally associated with conservatives and libertarians: federalism limits on “commandeering” of state and local governments, separation-of-powers constraints on federal spending and regulation, and traditional civil libertarian approaches to freedom of speech that have come under increasing disfavor on the left.

In his compelling recent book Principles Matter, legal scholar Carlos Ball argues that progressives should stick to these ideas in the future as a matter of principle, not just as temporary litigation strategies deployed against Trump. He makes a strong case that, in some ways, could be even stronger and more far-reaching.

For many decades, constitutional federalism was out of favor on the political left because of its association with opposition to the New Deal and “states’ rights” defenses of racial segregation. Ball recognizes this history, but also points to episodes where federalism has been deployed for causes progressives approve of, such as opposition to the Fugitive Slave Acts in the 19th century and state resistance to federal marijuana prohibition.

As he chronicles, the Trump administration saw a massive upsurge in the use of federalism arguments by the left, most notably in the largely successful effort to resist Trump’s efforts to coerce “sanctuary cities” and states into helping him expel  undocumented immigrants, a subject I have written about myself. Here, liberal states and localities relied on anti-commandeering principles pioneered by conservative and libertarian jurists and legal scholars—and opposed by most liberals at the time.

Ball also describes how liberals used federalism to resist Trump on several other fronts, including environmental policy, the War on Drugs, and Trump’s efforts to pressure states into early “reopening” during the Covid-19 pandemic.

He tells a similar story regarding separation of powers. Historically, liberals have often sought to curb presidential power when it comes to national security and foreign policy issues but have often supported, or at least accepted, its growth in the domestic sphere. Ball effectively argues that this stance should be reconsidered in light of the experience of the Trump years. Separation-of-powers restrictions on the executive were crucial to liberal efforts on the sanctuary cities issue (as the executive sought to attach conditions to federal grants that Congress never authorized), efforts to combat Trump’s use of emergency powers to build his border wall, and much else.

Ball urges liberals to endorse more rigorous judicial enforcement of federalism and separation-of-powers constraints in the future, even if doing so will sometimes constrain progressive policy priorities. He does so for three interlocking reasons. First, these limits on federal power–especially executive power–can forestall the great downside risk of an illiberal authoritarian president like Trump subverting constitutional government and inflicting great harm throughout the nation. Preventing this danger, he argues, is more important than making policy gains at the margin.

Second, federalism constraints would enable large parts of the country to pursue progressive policies even in the face of a hostile president or Congress. Progressives are likely to retain control of many key states for a long time to come, and these states’ autonomy is a valuable resource.

Finally, the conventional wisdom that conservatives benefit from a weak federal government and liberals from a strong one is, Ball suggests, in need of revision. Particularly since the rise of ethnonationalism under Trump, conservatives have an expansive agenda for the use of federal power—particularly when it comes to issues like trade, immigration, and law enforcement. Now that the Supreme Court has overruled Roe v. Wade, conservatives might also seek to enact nationwide restrictions on abortion. Such laws might be vulnerable to federalism challenges.

It is notable that Ball is willing to go so far as to advocate a revival of a strong nondelegation doctrine, an idea championed by conservatives such as Supreme Court Justice Neil Gorsuch but anathema to many on the left. But, as Ball explains, broad delegation can easily be exploited by the right for dangerous purposes. In fact, it was used by Trump to impose unprecedented restrictions on immigration during the Covid pandemic.

When it comes to the First Amendment, Ball documents how courts’ broad approach to freedom of speech stymied a variety of President Trump’s efforts to use the power of government to punish his critics. While liberals have never rejected robust judicial protection of freedom of speech in the same way as they have for federalism and domestic uses of executive power, recent trends in liberal legal thought advocate major exceptions to such protections, including arguments for the regulation of “hate speech”, for bans on the spread of “misinformation,”  and for restricting the speech of those who supposedly wield excessive influence (such as wealthy individuals and corporations spending money on campaign and issue advocacy).

Ball correctly points out that hate speech laws can just as easily be used to prosecute left-wing speech as that of the right, and in fact have been used that way in jurisdictions that have them. It’s not hard to imagine how such power could be used by the likes of Trump.

Professor Ball might have done well to extend his argument in at least three ways. First, his defense of federalism could be augmented by recognition of the value of giving people opportunities to “vote with their feet.” Policy variation between states and localities enables people to choose those jurisdictions whose policies best suit their needs. Historically, this has been an especially great boon to the poor and disadvantaged, seeking opportunity and escape from oppressive policies. Foot voters have incentives to make better-informed and less-biased decisions than ballot-box voters. By contrast, a one-size-fits-all federal policy makes foot voting far more difficult, as the only way to do it would be to leave the country entirely. The new law—or laws—of abortion will surely bring this point front and center for many progressives.

If progressives believe “blue state” policies are genuinely superior to red ones, they should welcome the opportunity to prove it by attracting foot voters from red jurisdictions. In cases where the former end up actually losing residents to the latter, the loss can be a useful signal that they need to reform some of their policies. For example, there is growing recognition that blue states such as California need to cut back on exclusionary zoning that artificially increases the cost of housing and drives out poor and lower-middle-class residents, thereby also potentially cutting them off from valuable jobs and other opportunities.

Second, Ball could extend his embrace of federalism to encompass limits on the scope of federal regulatory authority under the Commerce Clause. While traditionally championed by liberals, the Supreme Court’s incredibly broad interpretation of this power has licensed somedangerous and destructive policies that the left has good reason to abhor. For example, rulings like Gonzales v. Raich (which reached the absurd conclusion that the power to regulate interstate commerce includes the authority to bar the possession of marijuana that had never crossed state lines or even been sold in any market within a state) underpin the enormously destructive federal War on Drugs, which has caused great harm to minorities and the poor.

It is too often forgotten that the iconic New Deal-era Commerce Clause decision in Wickard v. Filburn—the most expansive Commerce Clause ruling prior to Raich—upheld a law designed to promote a nationwide cartel to increase the price of wheat, thereby raising the price of food in the midst of the Great Depression, when millions of people were already finding it hard to make ends meet and to avoid malnutrition.

Progressives might want to consider whether avoiding such awfulness is worth the price of cutting back on some uses of federal regulatory power they might like. Perhaps the answer is “no.” But it will take a lot to outweigh the massive harm caused by such policies as the War on Drugs and federally sponsored food cartels that victimize the poor.

While most of Ball’s analysis is insightful and on-target, I have a few nits to pick. In the historical sections of the book, he (like many scholars) overstates the extent to which the Lochner-era Court was committed to “laissez-faire” economic policy—in reality, it upheld far more economic regulations than it struck down—and overstates the progressive benefits of the New Deal-era expansion of federal power. Wickard v. Filburn is just one of many examples where the latter disadvantaged rather than helped the poor.

A more general problem is that Ball avoids specifying exactly how tight limits on federal power or executive authority should be, or what constitutional theories should be used to generate answers to these questions. This potentially leaves him open to accusations of a “fair-weather” approach to federalism and separation of powers. Both, of course, are common problems on both sides of the political spectrum. Ball generates the beginnings of a response to this critique by emphasizing his willingness to adhere to the limits he advocates even in cases where they impinge on progressive priorities, and gives a number of examples. But a more systematic approach to this issue might help.

A related issue is that the political valence of federalism and separation of powers has shifted at times in the past, and could potentially shift again. Recent left-liberal reliance on these principles reflects an era where federalism is no longer associated with bigotry, and national power no longer associated with tolerance and equality, to anything like the same extent as was true at the height of the Civil Rights movement.  The political impact of executive power has also shifted over time. Conservatives were more hostile to executive authority and liberals more supportive during the post-New Deal era, when the Democratic Party controlled the White House most of the time and that dominance seemed likely to continue. While Ball calls for adherence to federalism and separation-of-powers constraints as a matter of principle, it is not entirely clear to what extent this call is shaped by the conditions of the present political moment.

Despite such caveats, Principles Matter is an important contribution to the debate over constitutional limits on government power in the wake of Trump. Scholars, policymakers, and legal commentators across the political spectrum have much to learn from it.