The Weapons of the Weak Before the Movement

Mark Graber

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

The rule of law provides the foundation for structuring elite domination and a forge for fashioning the weapons of the weak.  The substance of law inevitably reflects the interests and values of the lawmaking, law enforcing, and law interpreting class.  One hardly needs to be a Marxist to understand how the law of property, contract, and business associations privilege those who have property to bestow by contract or protect by incorporation.  The freedom of the press secures the rights of those who have access to a press.  Elites that govern by law nevertheless provide a pathway by which the less fortunate successfully make rights claims.  The Supreme Court vindicated Joseph Lochner’s right to work his immigrant bakers more than ten hours a day, but the same justices would have vindicated the right of those bakers to receive their contracted-for wages.  A small incorporated black church in rural 1910 Alabama had the same limited liability as U.S. Steel.

Did Race Distort the rule of Taft v. Hyatt?

Guest Blogger

Black Civil Rights and Black Corporate Rights

Guest Blogger

The Appellate Void and Trump v. CASA

Andrew Coan

At yesterday's birthright citizenship oral argument, several justices (most notably Justice Kagan) expressed concern about the appellate void I described back in March: What if the government loses in the district court or court of appeals and simply declines to appeal? In a clear-cut case, where the government loses across the board, this strategy could deprive the Supreme Court of appellate jurisdiction and thereby prevent the establishment of any nationally binding precedent. The government could then defy a lower court judgment, daring it to enforce contempt sanctions without the cooperation of the executive branch or backup from the Court.

In a world without universal injunctions, the government would not need to go so far as defying lower court orders to exploit this appellate void. It could comply as to the plaintiffs, while refusing to treat any adverse lower court decision as binding precedent. If all of the government's losses are in district court, as might be the case for truly clear-cut constitutional violations, those decisions would not in fact establish any precedent, since district court decisions are non-precedential. In contexts where a class action is unavailable, this would leave anyone who lacks the wherewithal to bring their own suit without a judicial remedy. For something like the birthright citizenship order, such persons could number in the millions. 

This possibility has always been the strongest practical objection to universal injunction abolitionism and the narrow, private-law model of Article III that it rests upon. But the objection carries less force in a world where the government can be counted upon to appeal its defeats, preserving the Court's power to establish nationally binding precedents that are functionally indistinguishable from universal injunctions. Yesterday, the solicitor general insisted that we still live in that world. But the justices did not seem so sure. Nor did they seem sanguine about the possibility of widespread constitutional violations falling into the appellate void.

The future of universal injunctions--and perhaps the birthright citizenship order--might turn on these questions.

Penningroth’s Achievement

Guest Blogger

The Government's "Domicile" Argument on Birth Citizenship

Gerard N. Magliocca

One thing that was clear from today's argument is that the Court will not reach the merits yet. After another argument in October, maybe. Or maybe not until the circuit courts have weighed in.

The Solicitor General mentioned today the Government's merits argument rests in large part on the claim that "subject to the jurisdiction" in the Citizenship Clause requires that the parents of the children have a domicile within the United States. That's wrong for several reasons, but here's one that relates back to an argument that I made in some earlier posts.

The children of "gypsies" were expressly mentioned as people who would get birth citizenship under the Citizenship Clause. Traditional "gypsies" did not have a domicile. Indeed, you might say that the lack of a domicile (e.g., "wandering band of gypsies") is what defined that group of people and explains why they were persecuted for centuries. You can't reconcile that with a domicile requirement for birth citizenship. 

Legal Pluralism in “Before the Movement”

Guest Blogger

For the Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

Mark Tushnet

It’s commonplace to observe that major civil rights organizations from the 1910s to the 1960s received significant financial support from Black professionals and businesspeople who provided services to the Black community. Often that observation is coupled with comments about the ways in which that source of funding gave the organizations’ programs a middle-class tilt. And it is also sometimes coupled with the explanation: These contributors were insulated from retaliation by the white community in ways that, for example, schoolteachers, sharecroppers, and tenant farmers were not. 

Though he doesn’t focus much on the phenomenon just described, Dylan Penningroth foregrounds a deep explanation for it. Black professionals and businesspeople had the resources they did because they had ordinary contract and property rights, the same rights that whites had. And, indeed, a perhaps stronger point: The professionals among them—the barbers, dentists, and insurance agents—were often able to build their businesses because they had licenses from the white-dominated state. 

And things could have been different. Penningroth mentions an abortive effort to impose licensing requirements for washer-women in Atlanta. Professional licensing could have been administered as literacy requirements for voting were: nominally neutral as to race but in practice racially discriminatory. As I’ll argue, we can see hints of this sort of difference at several points in Penningroth’s narrative.

American Bar Association Silver Gavel Award for The Presidents and the People: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It (W.W. Norton, 2024)

Corey Brettschneider

Looking for Law in All the Wrong Places: Dylan Penningroth’s Before the Movement.

Guest Blogger

Balkinization Symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

JB

This week at Balkinization we are hosting a symposium on Dylan C. Penningroth's new book, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

We have assembled a terrific group of commentators, including Evelyn Atkinson (Tulane), Ian Ayres (Yale), Mark Graber (Maryland), Steve Griffin (Tulane), Carol Rose (Yale), and Mark Tushnet (Harvard).

At the conclusion, Dylan will respond to the commentators.

Review It All

David Pozen

By Katharina Pistor and David Pozen

Governance reform has become the latest flashpoint in debates over the future of Columbia. Under pressure from the Trump administration to “centralize” campus discipline and decisionmaking, our Board of Trustees has ordered a faculty-led review of the University Senate as well as a more limited, consultant-led review of its own “processes.” While we commend the project of institutional introspection, singling out academic senates for special scrutiny is a troubling development—and one that could spread far beyond Columbia unless checked. 

Academic Freedom of Law Reviews: Personal Statements Under Attack

Tom Ginsburg

 Academic freedom—classically defined as the freedom of research and teaching—is a complicated idea, and one that has come under severe attack in our era. One question that has not received much attention, is whether academic freedom applies to the student editors of law reviews. Last year, Aziz Z. Huq and I argued that it does. This is because the academic discipline of law has delegated to students its editorial judgement about what to publish. One could imagine an alternative world in which law looked more like every other discipline in the university, with journals edited by professional academics utilizing peer review to screen articles. That is not our world, in part because we think that there are pedagogical and intellectual benefits to be had from student-run journals. One consequence is that, in their exercise of editorial judgement, law review editors should be able to make their decisions independently, free from pressure by the administration or faculty.

Is the Librarian of Congress an Executive Official?

Gerard N. Magliocca

The Librarian of Congress joined the ranks of the suddenly unemployed last week. One fair question people might ask is, "Wait, didn't she work for Congress?" If so, how can she be fired by the President without cause?

Past scholarship pointed out that the Library of Congress is an unusual institution that is neither legislative or executive. The Library serves members of Congress by, in effect, providing research assistance. But it also houses the Copyright Office, which performs regulatory functions like other administrative agencies. And it's a giant library and museum for the public.

I doubt that the Librarian wields executive power that subjects her to at-will firing by the President. But we may see that tested in court soon.

UPDATE: In the long run, maybe Congress will move the Copyright Office to, say, the Department of Commerce. Then the argument that the Librarian of Congress is an executive official would be weaker. 

A Justice Souter Anecdote, or “Seeing a World in a Grain of Sand”

Mark Tushnet

Editors of constitutional law casebooks scramble at the end of each Term to edit the Court’s important opinions of the Term into a supplement available for use in the fall semester. The task is exacerbated by the Court’s tendency to clump important opinions in its last few opinion days. In the pre-electronic early 1990s the best you could do, at least if you didn’t go to the Court to pick up slip opinions, was to use the US Law Week, which typically published opinions on the day they were released and was available from the library the next day. 

The Court released its opinions in Lee v. Weisman on June 24, 1992. I edited it the next day, including substantial excerpts from Justice Souter’s concurring opinion, which offered his views on the original understanding of the First Amendment’s religion clauses. His opinion contained a footnote contrasting Thomas Jefferson’s articulated views and his practice as president. Arguing that Jefferson’s articulated views better expressed the original understanding, the footnote added after its description of Jefferson’s practice, “Homer nodded.”

How to Avoid Accountability

David Super

     The cuts and chaos generated by the Orwellian-named Department of Government Efficiency (DOGE) have done lasting damage to the federal government’s ability to meet the nation’s needs.  The arbitrary arrests, deportations, and renditions of immigrants and those perceived to be or associated with immigrants have both caused immense, unnecessary hardship in the short-term and debased this country’s moral authority for decades to come. 

     Yet beyond all this devastation, these actions have had an additional destructive effect:  distracting journalists and the public from transformative legislation making its way through Congress.  Even among politically engaged people, few are aware that the most important social legislation since at least the Affordable Care Act is on track to gut the most important parts of the social safety net, reverse the central achievement of the Affordable Care Act, and so vandalize our nation’s finances that major social initiatives may be effectively unaffordable for a generation to come.  This obscurity of President Trump’s “big beautiful bill” is very much part of the plan:  everything about it has been designed to remain in the shadows until it becomes too late.

Picking a Book Cover

Gerard N. Magliocca

Let me take a moment to explain why I picked this cover for my new book. I rejected a standard portrait of a Justice enrobed. Instead, this is a photo of Jackson testifying before Congress in 1937. 

With this choice, I wanted emphasize the importance of Congress in the Youngstown concurrence and in general. I also wanted to make the point that proper governance involves thought and wide consultation for what Jackson described as the necessity "the law be made by parliamentary deliberations" 

What Did “Subject to the Jurisdiction of the United States” Mean in the Oregon Citizenship Legislation of 1872?

Guest Blogger

Michael L. Rosin

In a recent Balkinization post Gerard Magliocca noted that he could find no example in federal law of “subject to the jurisdiction” not meaning “’subject to the law’ … or ‘subject to legal authority’ of the United States.” This post discusses the use of “subject to the jurisdiction” in an 1872 statute granting citizenship from birth. This was the first such citizenship legislation enacted into law after the drafting of the Fourteenth Amendment. It demonstrates that the phrase “subject to the jurisdiction” meant “subject to the legal authority of the United States.” If the phrase had meant “and not subject to any foreign power,” (the interpretation the Trump Administration gives to the phrase in the Fourteenth Amendment), the 1872 legislation would have had no effect.

The Ordinary Meaning of "Subject to the Jurisdiction"

Gerard N. Magliocca

The phrase "subject to the jurisdiction" appears many times in federal law. It's in the 18th Amendment. It's in a slew of federal statutes. I can find no example where the phrase is used to mean "allegiance" or any equivalent. Instead, the phrase is always used in its ordinary sense to mean that the object (either people or places) is "subject to the law" of the United States or "subject to legal authority" of the United States.

If someone can find a contrary example, I'd be interested to hear about it. 

The Big Picture

JB

The New York Times asked 35 law professors for their assessment of the constitutional situation during Donald Trump's second term in office. They got many thousands of words, which they boiled down into an op-ed that appeared this morning.

The Times ended up using only a single sentence of what I wrote. So I publish here what I originally sent them about some of the deeper causes of our current problems.

* * * * *

For the past forty or so years the United States has been descending into a deeper and deeper constitutional rot. The signs are (1) increasing polarization; (2) increasing wealth and income inequality; (3) policy disasters like the Iraq War and the 2008 financial crisis that convince ordinary people that their government is unconcerned with their welfare; and (4) and loss of social trust--between politicians of different parties, between the public and the political classes, and between the public and almost every institution of social life, whether it be science, medicine, the media, sports, business, or the academy. Loss of social trust is the cancer of democracies.

Birthright Citizenship and DOJ's Appellate Briefs

John Mikhail

In its appellate briefs in the birthright citizen cases making their way through the courts, the Department of Justice claims that the original meaning of the Constitution’s Citizenship Clause supports President Donald Trump’s Executive Order limiting birthright citizenship to American-born children whose parents are either citizens or legal permanent residents (LPRs). Although these briefs from the government might seem at first glance to be scholarly and well-supported, a close look at them reveals that DOJ is grasping at straws. Many of the authorities on which the briefs rely are misleading or derivative, while other more pertinent sources are mischaracterized or ignored. In a post on Just Security, I discuss eight notable examples, focusing on the brief in Washington v. Trump. DOJ’s other appellate briefs seem to be virtually identical and subject to the same criticisms.

Religious Exemptions?: What the Free Exercise Clause Means

Andrew Koppelman

For those who are interested, the Civitas Institute has posted a somewhat specialized conversation between myself, Michael McConnell, and Vincent Phillip Muñoz on originalism and religious exemptions.

The Supreme Court and the Alien Enemies Act: The Limits of the Passive Virtues in Trump 2.0.

Jonathan Hafetz

The current challenge to deportations under the Alien Enemies Act of 1798 (AEA) operates on two levels: it presents an important test of due process guarantees in the United States and a barometer for assessing the Supreme Court’s approach to the Trump administration’s sweeping claims of executive power.

In its plan to carry out mass deportations, the Trump administration has seized on this rarely used Founding era statute to deport hundreds of individuals to the notorious Center for Terrorism Confinement in El Salvador. The administration says it is sending Venezuelan members of the Tren de Aragua gang, but it has deliberately avoided any judicial scrutiny of its claims and innocent people have been caught up in the dragnet.

On April 7, the Supreme Court ruled that legal challenges had to be brought through habeas corpus proceedings in the district where the individuals were confined rather than in Washington, D.C. under the Administrative Procedures Act. (I wrote more about this decision here). While this procedural ruling handed a temporary victory to the Trump administration, the Court was unanimous in ruling that individuals subject to removal under the AEA were entitled to notice and an opportunity to challenge their deportations. But the Trump administration effectively ignored the Court, instead shuttling people between detention centers before trying to remove them in the dead-of-night without anything approaching due process (giving them, for example, at most 24 hours to challenge their removal without telling them where or how, and doing so only in English, a language many do not understand).

This attempted end-run around the Supreme Court mirrors the administration’s actions in the case of Kilmar Abrego Garcia, the Maryland man who was illegally—and mistakenly—deported to El Salvador (albeit not under the AEA). On April 10, the Supreme Court, in an unanimous ruling, directed the Trump administration to facilitate Abrego Garcia’s return to the United States. Once again, the Court moved cautiously, noting the district court should proceed with “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs” in implementing the Court’s ruling. But the administration then spurned this olive branch, stonewalling the district judge when she tried to get any information about Abrego Garcia and insisting it had no responsibility to do anything to right the wrong and bring him back to the United States. When the administration  moved for an emergency stay of the district court’s ruling that “facilitate” meant actually doing something, it prompted a blistering opinion from Fourth Circuit Judge J. Harvie Wilkinson III, who, in the panel's opinion denying the motion, called the administration’s position “shocking” to any sense of liberty and urged it to remember that the rule of law is “vital to the American ethos.”

These cases underscore the limits of Alexander Bickel’s “passive virtues” in judicial decisonmaking. For Bickel, courts could achieve better and more lasting results by taking small steps and ruling narrowly, rather than issuing sweeping constitutional pronouncements. But an incremental approach designed to foster interbranch dialogue only works when the branches are open to communication. It’s a dubious strategy for a president who, like Trump, treats such overtures as weakness and an invitation to assert power more aggressively.

Amicus Brief on the Tariffs

Gerard N. Magliocca

I was pleased to join this amicus brief arguing that the tariffs are unlawful. Thanks to Michael McConnell for taking on the role of Counsel of Record.

Why is Justice Alito so trusting of the Trump administration?

Andrew Koppelman

Who knew that Supreme Court Justice Samuel Alito was such a trusting person?  The ordinarily hard-edged jurist strained to take the Trump administration at its word in his dissent from the Supreme Court’s emergency order on Saturday prohibiting the Trump administration from deporting a group of Venezuelan migrants under the Alien Enemies Act (AEA).

I reflect on this puzzling phenomenon in a new column at The Hill.

Abrego Garcia Will Return When the Administration Needs Him

Gerard N. Magliocca

 Every week I get a call from a reporter asking if we are in a constitutional crisis. In this week's edition of "No," let me sketch out a scenario for the Abrego Garcia case. First, a brief history lesson.

After Worcester v. Georgia, Georgia refused to effectuate Worcester's release from jail. President Jackson did nothing. Chief Justice Marshall lamented that this was the end of the Constitution. After six months, though, Jackson faced a bigger problem. South Carolina was defying federal authority to impose tariffs. At that point, he needed the Court on his side. So he negotiated with the Governor of Georgia and Worcester was magically pardoned.

Abrego Garcia will probably be magically produced by El Salvador when the Administration loses one of the four cases now pending on the legality of today's tariffs. The Administration will then need the Court on its side. And it's clear that Trump cares a lot about tariffs. Being in the Court's doghouse when that case is brought on the emergency docket won't be worth keeping one guy erroneously deported.

The only reason I say "probably" is that, to quote Claude Rains, it's also possible that El Salvador will announce that Abrego Garcia "died trying to escape." 

The Bank of the United States and the Unitary Executive

Gerard N. Magliocca

I'm sure somebody must have said this before, but anyway.

Under the unitary executive theory, why was the Bank of the United States constitutional? The Bank was led by a Director who could not be removed by the President. It was the most "independent" independent agency in our history. This was, of course, one reason why the Bank was unraveled in 1836.

Perhaps the answer is that central banking is not part of the executive power. This would explain why the Federal Reserve also sits outside the unitary executive. But if central banking is not part of the executive power, what else falls outside of that category?

Can the Supreme Court Remove a Solicitor General?

Gerard N. Magliocca

I introduce the following as an interesting hypothetical. Rule 8 of the Supreme Court's Rules states:

1. Whenever a member of the Bar of this Court has been disbarred or suspended from practice in any court of record, or has engaged in conduct unbecoming a member of the Bar of this Court, the Court will enter an order suspending that member from practice before this Court and affording the member an opportunity to show cause, within 40 days, why a disbarment order should not be entered. Upon response, or if no response is timely fled, the Court will enter an appropriate order.

2. After reasonable notice and an opportunity to show cause why disciplinary action should not be taken, and after a hearing if material facts are in dispute, the Court may take any appropriate disciplinary action against any attorney who is admitted to practice before it for conduct unbecoming a member of the Bar or for failure to comply with these Rules or any Rule or order of the Court.

Query: Could the Court therefore disbar a Solicitor General from practice before the Court? Or would that effectively be an impeachment and conviction of that officer that is beyond the Court's authority? In the hypo, the person would still hold the SG office but could not perform that office's main function.  

When "Good" Laws are Given to Bad People

Mark Tushnet

I'm about to "defend" the statute that's being used to remove Mahmoud Khalil from the United States. But I have to begin by saying as forcefully as I can that I don't believe for a moment that the Trump administration is using the statute in good faith. Yet I also don't believe that any judge, even one who deep down might share that view, would actually hold that the use was in bad faith (much less that two court of appeals judges would, much less that five Supreme Court justices would). So, as a matter of legal analysis, we're stuck with trying to see whether or how the statute might be found not to apply in the present circumstances, either as a matter of statutory interpretation or constitutional law.

You have to piece together two provisions to get the full picture. The first states that noncitizens, including permanent resident aliens, can be removed (the current term for "deported") when the secretary of state has “reasonable grounds to believe” that the noncitizen’s continued presence or actions in the United States would have “potentially serious adverse foreign policy consequences.” The second provides that the foreign policy provision can't be invoked "because of the alien's past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States, unless the Secretary of State personally determines that the alien's admission would compromise a compelling United States foreign policy interest." 

Here's a scenario where these provisions make sense. Jair Bolsonaro fomented a failed coup in Brazil. He then came to the United States lawfully, that is, with some sort of visa. Suppose that while he was in the United States he continued to urge his supporters in Brazil to plan for some future antigovernment activities, including a possible coup. Assume that this counts as "mere advocacy" and not "incitement to imminent unlawful conduct" under US free speech law. The Brazilian government lets the United States know that it regards Bolsonaro's presence in the United States as a demonstration of US hostility to it. The Secretary of State concludes that Bolsonaro's statements are complicating US negotiations with Brazil over some important military or trade arrangements. (Remember, this is a hypothetical!). The Secretary finds (referring to the Brazilian government's objections) that Bolsonaro's continued presence has "potentially serious adverse foreign policy consequences," one of which is the negotiation difficulties, which "compromise a compelling ... foreign policy interest." (You can fill in other figures for Bolsonaro; older readers might say "the Shah of Iran" or "Martin Bormann" [though there's a separate provision dealing with Nazis].)

It seems to me clear that allowing Bolsonaro's removal under these circumstances might well be good policy and raises no substantial constitutional questions. Khalil is obviously different from Bolsonaro--an obscure graduate student rather than the former president of another nation. But it's not clear to me that the statute should be read to exclude Khalil from its coverage--and that notwithstanding the fact that the legislative history indicates that the provision should be applied sparingly (or that it originated in the notorious McCarren-Walter Act).

Take the "one obscure person" versus "former president" distinction. Foreign policy problems take lots of forms. Some can be created by a single person, but others can be created when a bunch of people--acting in concert or independently--do things that cause such problems. So, it seems to me, the statutory question is whether the Secretary of State has "reasonable grounds to believe" that Khalil's statements, taken together with those of others (both US citizens and noncitizens) compromises the (assertedly) "compelling" foreign policy interest in combating anti-Semitism. With questions of good faith put to the side (for reasons I've mentioned), it seems to me highly unlikely that the federal courts would (ultimately) conclude that the Secretary's decision was unreasonable.

Some, including apparently President Trump's sister when she was a federal judge have said that the statute was unconstitutionally vague because it fails to give those subject to potential removal fair notice of what activities will trigger their removal. That, though, seems to me the result of the fact that compelling foreign policy interests can cover a wide range and indeed can change from time to time. So, for example, gaining access to some rare mineral might be a compelling foreign policy interest today but not five years from now. Or, more pertinently, combating anti-Semitism might be a compelling foreign policy interest today but not when the person subject to removal received his or her visa (or green card). So, it seems to me, it would be difficult to write a statute that dealt with the problem to which this one is addressed in any more specific terms. The statute's as clear as the subject matter permits.

At least insofar as I've been able to follow the discussions that leaves the First Amendment. The relevant doctrine is that of unconstitutional conditions, and I confess at the outset that I don't have a firm grasp on what that doctrine actually is (nor, I think, does anyone else). The doctrine is triggered when a person seeks something that the government has discretion to grant or withhold. The government says that it will give you that thing only if you either say things the government likes or refrain from saying things the government dislikes. The idea behind the doctrine is something like this: The government can't leverage the discretionary power it has over the thing you want to get you to do something else. And, to the extent there's an explanation for that principle, it seems to be that the government can define the scope of its discretionary program, so it can indeed leverage its power to get you to do things consistent with the program's goals, but it can't get you to do things outside the program's scope.

Of course everything turns here on what the scope of the program is. For admission to the United States, it would seem to be something like: letting people in whose presence in the United States, whether temporarily or permanently, is consistent with the government's foreign policy goals. (I should note that scholarship on the unconstitutional conditions doctrine sometimes suggests some limitations other than "leverage on things outside the program's scope," but they are, in my view, even less likely to find judicial support in Khalil's case.)

And, if that's the scope of the program, I'd bet that the courts would hold that the "leveraging" effects of discretionary denial is within the program's scope. So, in the end, at least as a predictive matter I'd bet that Khalil's likely to lose his statutory and constitutional challenges (though he might have some interim victories, which might not be trivial in terms of their effects on generating general opposition to Trump's policies; in particular, I look forward to the effort to depose Marco Rubio to find out what exactly he "personally" knew about Khalil when he signed the document directing Khalil's removal).

In our podcast Mike Seidman and I have been going back and forth on the question of whether it's politically helpful to challenge Trump administration policies on constitutional grounds (I think probably a bit sometimes, he thinks probably not). The Khalil case poses a different and in some ways more troubling problem. His removal is an obvious injustice but, I've strongly suggested above, the injustice is in some sense perfectly legal. (I'm reminded here of the last line of Grant Gilmore's Ages of American Law: "In hell there will be nothing but law, and due process will be meticulously observed.") 

What to do? Well, maybe get a bunch of judges willing to look realistically at the good faith of government officials. I won't hold my breath. Or listen to Thomas Jefferson (and hold your breath): "[O]ur present situation is not a natural one.... A little patience, and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to it’s true principles." In short, don't elect witches.

Balkinization Symposium on Legal Pathways Beyond Dobbs-- Collected Posts

JB

 Here are the collected posts for our Balkinization Symposium on Legal Pathways Beyond Dobbs. 

1. Jack Balkin, Introduction to the Symposium

2. Cary Franklin, History and Tradition’s Equality Problem

3. Mary Ziegler, The History and Tradition of Criminalization

4. Michael C. Dorf, Enumerating a Post-Dobbs Pathway

5. Evan D. Bernick, Cthulhu and the Constitution

6. B. Jessie Hill, Abortion Rights as Health Care Rights as Equality Rights

7. Meghan Boone, The Question of Female Personhood

8. Kimberly Mutcherson, The Shared DNA of Roe and Dobbs: Potential Life as a Tool of Subordination

9. Laura Portuondo, Anti-Devaluation as Reproductive Justice

10. Douglas NeJaime, Biological Parenthood and Inequality

11. Neil S. Siegel, The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads

12. Courtney Cahill, The Other Footnote

The Other Footnote

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Courtney Cahill[1]

Some scholars say that constitutional equality law was built in the shadow of a footnote: “famous footnote four” from the 1938 Supreme Court decision United States v. Carolene Products Co.  If recent transgender jurisprudence is any indication, then constitutional sex equality law could deteriorate on the heels of a different footnote.

That footnote, footnote twenty from the 1974 decision Geduldig v. Aiello, was all-but-dead until the Supreme Court resurrected it in Dobbs v. Jackson Women’s Health Organization.  Dobbs is mostly about why abortion isn’t protected as a matter of due process, but in dicta, Dobbs also explains why abortion isn’t protected as a matter of sex equality.  Quoting footnote twenty from Geduldig, which held that pregnancy discrimination wasn’t sex discrimination, Dobbs posits that the regulation of a procedure or trait unique to one sex isn’t, in fact, sex discriminatory.  For Dobbs, footnote twenty was the “precedent” that “squarely foreclose[s]” the sex equality argument for reproductive rights.

Dobbs’ use of footnote twenty is a precedent manufactured in real time – and therefore, by definition, not a precedent at all – that lacks grounding in text, history, and actual precedent.  Nothing in the text of footnote twenty, the briefing history behind footnote twenty, nor the judicial interpretation of footnote twenty in any pre-Dobbs decision supports Dobbs’ reading of the footnote as an authority for why courts may effectively rubber stamp discrimination grounded in biological characteristics unique to one sex.  Dobbs’ footnote twenty revisionism was bad enough in Dobbs, but since Dobbs, lower and state courts have amplified Dobbs’ error by relying on footnote twenty (as read through Dobbs’ eyes) to uphold not just criminal abortion laws but also countless forms of transgender discrimination on the theory that discrimination is presumptively constitutional if it is tethered in some way, however remote, to ostensible sex-based differences.

The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Neil S. Siegel 

Lacking theoretical ambition in the current moment, I want to make a point about methodological inconsistency that will include but extend beyond equal protection law in the context of sex, sexual orientation, and gender identity. 

Last Term, the U.S. Supreme Court decided United v. Rahimi, 144 S.Ct. 1889 (2024), holding that the Second Amendment permits someone found by a court to pose a credible threat to the physical safety of another to be temporarily disarmed. Justice Neil Gorsuch wrote a concurrence opining on the proper method of constitutional interpretation. “Come to this Court with arguments from text and history,” he wrote, “and we are bound to reason through them as best we can.” “Faithful adherence to the Constitution’s original meaning may be an imperfect guide,” he continued, “but I can think of no more perfect one for us to follow.” 

In writing those words, Justice Gorsuch appeared unembarrassed by their inconsistency with the reasoning of several momentous majority opinions he joined that term—none of which had a tenable basis in the text or original meaning of the Constitution or the statute at issue. See Trump v. United States, 144 S.Ct. 2312 (2024); Trump v. Anderson, 144 S.Ct. 662 (2024); Fischer v. United States, 144 S.Ct. 2176 (2024). The two Trump cases were instead based on structural inferences, consequentialist reasoning, and analogies to precedent. As the conservative originalist scholar William Baude opined, “Trump v. Anderson’s holding lacked any real basis in text and history,” and “[t]he court’s reasoning [in Trump v. United States] went well beyond any specific part of the Constitution or any determinate constitutional tradition.” As for Fischer, Justice Amy Coney Barrett wrote in dissent that the Court “does textual backflips to find some way—any way—to narrow the reach” of the criminal provision in question. 

There is a lesson here, and it also applies when President Trump does not benefit from the Court’s deviations from textualism and originalism. When the political stakes are high, most of the conservative Justices cannot be counted on to be methodologically consistent—to be principled. It can be frustrating to be a student of the current Court because an unprecedented number of Justices purports to assign first-class interpretive status to relatively strict versions of textualism and originalism and second-class interpretive status to structural, doctrinal, and consequentialist modalities of interpretation. It can be demoralizing to be a student of this Court because those same Justices do not appear to really mean it when the consequences of applying that proclaimed interpretive hierarchy are unpalatable.

Emergency?

Gerard N. Magliocca

This week on "Supreme Court ER" we have new requests on an erroneous deportation and (I would think) on overruling Humphrey's Executor. Next week we may see one appealing a TRO blocking tariffs.

My observation is that if any of these situations present genuine emergencies, the correct course of action would be for the Court to treat the request for relief as a petition for certiorari and grant review. (I have no opinion on what temporary relief, if any, is warranted if a case is granted.). If there is no emergency, then the request should be denied.

What the Court is doing instead strikes me as the worst of both worlds. They are not granting review, but they are commenting on this and that in a hasty fashion. I can understand that they want to avoid the circus (that they helped to create) for as long as possible, but I'm not sure they can or should.

Letter to the Brazilians, 1977

Andrew Coan

I have never signed an open letter, for the usual reasons people adopt this policy. But the recent proliferation of law faculty letters made me curious about their history and impact. So, as one does in 2025, I asked ChatGPT for a Deep Research report on this question. The most interesting example it turned up was the "Carta aos Brasileiros"--Letter to the Brazilians--of 1977. This episode, new to me, offers a thought-provoking case study for both sides of the current debate over the ethics and efficacy of such letters. It should also interest anyone concerned with democratic backsliding and the rule of law.

Drafted by Professor Goffredo da Silva Telles of the University of São Paulo, the "Carta" was cosigned by dozens of prominent legal scholars and declaimed by Prof. Goffredo before an audience of thousands in the university courtyard. It condemned the illegitimacy of any government “founded on force,” rather than the will of the people, and memorably defined dictatorship as a regime that “governs for us, but without us.” Goffredo was a well-known anti-Marxist and conservative, making him an especially effective messenger. The letter is often credited as a catalyst for Brazil’s gradual return from military dictatorship to constitutional government in subsequent years.

From the Arcades of Largo de São Francisco, the 'Free Territory' of the São Paulo Law School, we address all Brazilians with this Anniversary Message, which is the Proclamation of Principles of our political convictions. As heirs to the legacy received from our forebears, on the occasion of the 150th anniversary of legal education in Brazil, we wish to bear witness – for future generations – that the ideals of the Rule of Law (Estado de Direito), despite the circumstances of the present moment, live on and remain active, today as yesterday, in the vigilant spirit of our nationhood. We want to say, especially to the youth, that we are here, and we remain here, determined as ever to fight for Human Rights, against the oppression of all dictatorships. Our fidelity today to the fundamental principles of Democracy is the same that has always existed under the shadow of these Arcades – an unfailing and active fidelity that has inscribed the pages of Liberty in the history of Brazil.

Biological Parenthood and Inequality

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Douglas NeJaime

The law too often treats parenthood as simply a biological fact—one that naturally flows from birth or DNA. Indeed, courts refer to the birth parent or genetic parent as the “natural” parent. The law routinely treats biological parents as legal parents, regardless of whether they are in fact parenting their children. At the same time, the law consistently treats nonbiological parents as legal strangers, even when they have formed a deeply bonded parent-child relationship. This legal system harms children, making their relationships to the people who are parenting them less stable and secure. As this brief essay shows, this system also perpetuates, yet obscures, inequality.

Same-sex couples are not similarly situated to different-sex couples with respect to biological parenthood. They typically include a parent without a gestational or genetic tie to the child. Despite this, courts and legislatures fail to appreciate the ways in which a biology-based system of parental recognition discriminates against LGBTQ people. Consider just one example. Darla Grese and Denise Hawkins had a child together with donor sperm. They raised their child for several years before separating. Eventually, Grese, the biological mother, refused to allow Hawkins, the nonbiological mother, to maintain her parent-child relationship. The Virginia courts determined that Hawkins, without a biological tie to the child, was not a legal parent. Hawkins argued that a biological requirement for parentage harmed LGBTQ parents. Unconvinced, the Virginia court held that the state’s “definition of parentage does not discriminate between same-sex and opposite-sex couples.” The court saw no differentiation between a nonbiological mother in a same-sex couple and a nonbiological father in a different-sex couple, reasoning that “the non-biological/non-adoptive partner is not a parent irrespective of gender or sexual orientation.”

On this view, biological connection is a neutral and benign feature of parental recognition. For some, the exclusion of LGBTQ parents is not merely an incidental consequence of a framework derived from nature; instead, it is the very reason to adhere to the framework. Today, the appeal to biology provides a less overtly hostile way to privilege the heterosexual, gender-differentiated family.

"The Actual Art of Governing" Now Available for Pre-Order

Gerard N. Magliocca

I'm pleased to announce that my next book is now available for pre-order from Oxford University Press. Here is the abstract for The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case:

Since the adoption of the US constitution, there has been ongoing calibration of the power balance between the three branches of government, often in the face of rapidly changing social and political contexts. In 1952, US Supreme Court Justice Robert H. Jackson took up this debate in Youngstown Sheet & Tube Company v. Sawyer, a watershed case that barred President Harry S. Truman from seizing privately operated steel mills during the Korean War. Concurring with the majority decision, Jackson penned an opinion that would become the authoritative source on the constitutional boundary between congressional and executive authority.

In The Actual Art of Governing, eminent legal historian Gerard N. Magliocca takes a close look at this landmark opinion, providing a deep reading of the decision and the context surrounding it, and explaining its lasting influence. Magliocca skillfully shows how Justice Jackson's opinion broke free of the rules for judicial writing, taking a pragmatic approach to constitutional interpretation that drew on personal experience and historical examples, rather than sticking strictly to the text, judicial doctrine, and original public meaning. The framework that Jackson proposed took on crucial significance during the fallout of Richard Nixon's Watergate abuses and has continued to be relied upon in controversies involving the reach of the US President's power, including actions taken by Donald Trump. Magliocca concludes by arguing that a proper reading of Jackson's Youngstown concurrence would lead to significant curbs on emergency powers, the discretion of the federal courts, and presidential authority.

Anti-Devaluation as Reproductive Justice

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs. 

Laura Portuondo 

The Supreme Court has extended a broad new vision of equality to religious conservatives that is unavailable to women, people of color, or LGBTQ+ people. In recent free exercise decisions, the Court has held that it violates religious equality to “devalue” religious interests. Under this anti-devaluation theory of equality, religious conservatives have become today’s most successful constitutional equality litigants. Witnessing this success, some reproductive rights advocates have brought religious equality challenges to abortion restrictions. While such litigation may generate short-term wins, it is unlikely to yield lasting results. The new religious equality doctrine is malleable and offers hostile judges numerous offramps to deny progressive religious equality claims. Moreover, these claims seem most likely to benefit the most privileged—well-resourced women in supportive religious communities—and are thus a poor fit for the long-term goals of reproductive justice. This essay thus offers a different strategy. It proposes integrating an anti-devaluation theory of equality into race and gender equality law itself. This essay sets out this theory and how it could work in the reproductive justice context. It then explains this theory’s potential and limitations as a tool to promote reproductive and gender justice. 

Although recent free exercise doctrine is convoluted, its theory of equality is simple: equality forbids devaluing protected interests. This anti-devaluation theory is not entirely novel. It appears to trace to the 1970s, when some constitutional scholars argued that discrimination includes “selective sympathy or indifference” towards minority groups. An anti-devaluation theory of equality most obviously forbids overt government hostility to the interests of a protected group. But it also forbids laws that reflect simple bias against or a failure to comprehend the interests of a protected group. Unlike present race and gender equality doctrine, this anti-devaluation theory permits—and often requires—attention to a law’s effects. One of the primary ways that the Court identifies devaluation in the free exercise context is by asking whether lawmakers have treated protected conduct (religious exercise) worse than other conduct (nonreligious conduct) that similarly undermines the government’s interests. Such disparate treatment is discriminatory under this anti-devaluation theory because it suggests that lawmakers either discounted or failed to comprehend the interests of the disfavored group.

The Shared DNA of Roe and Dobbs: Potential Life as a Tool of Subordination

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs. 

Kimberly Mutcherson [1] 

In Roe v. Wade and Dobbs v. Jackson Women’s Health, Justices Blackmun and Alito claim they are not choosing a theory of life and/or declaring when life begins nor are they declaring a fetus to be a constitutional person. While the two opinions come to very different conclusions about the existence of a right to an abortion in the federal constitution, they share the common thread of failing to take serious account of the rights of the pregnant woman — a person whose life and personhood are not in question. Thus, rather than avoiding declaring a theory of life, the Court has consistently articulated a theory of pregnant life by refusing to accord pregnant women rights of autonomy and bodily integrity given to any other competent adult person in the vast majority of circumstances. In Dobbs, Alito essentially erases pregnant women altogether in favor of protecting the right to life of a fetus, presumably at any point during a pregnancy. In Roe, Justice Blackmun’s majority opinion created a structure that assumed that the desires of a person living an actual life could be forced to yield to “potential life”[2] at least during the 3^rd trimester of pregnancy when a fetus is presumably “viable.”[3] Given the deep commitment to protecting bodily integrity that permeates U.S. law, those who subordinate pregnant women to the nascent lives they carry bear the burden of articulating a secular account of potential life as paramount to lives in being, and the Court’s abortion jurisprudence consistently failed to do so.

Understanding the Congressional Budget Irresolution

David Super

     In the wee hours this morning, the Senate approved the concurrent resolution on the budget and sent it to the House for consideration next week.  One moderate (Sen. Susan Collins) and one fiscal hawk (Sen. Rand Paul) opposed the measure along with all Democrats.  Democrats forced Republicans to vote down amendments to protect Medicare and Medicaid, to restore the staff that Elon Musk has cut from the Social Security Administration, to rebalance tax cuts more towards the middle class, to avoid explosive increases in the deficit, and, of course, to stop military planning from being conducted over Signal chats.  The outcome was a foregone conclusion. 

     A congressional budget resolution is a procedural prerequisite to advancing budget reconciliation legislation to make changes to revenue and entitlement spending legislation.  Like a reconciliation bill, a budget resolution is immune from filibusters and hence can be, and usually is, passed on a uni-partisan basis. 

     The budget resolution sets out the basic contours of a reconciliation bill – how much it must gain or can lose in revenues, how much it must save or can add in direct spending, and how all this is allocated among the chambers’ various committees.  The idea is that fiscal responsibility will be enhanced if Congress agrees on outer limits before Members get too deeply enmeshed in fighting for this or that politically attractive provision.  This year’s budget resolution could hardly be farther from that ideal.

     Congressional Republicans have two fundamental problems with their fiscal proposals.  First, their plan depends on debilitating and deeply unpopular cuts to Medicaid, nutrition assistance, and student loans.  With a recession now likely, the prospect of slashing benefits just as more people need them is politically toxic.  And second, even with these deep cuts in aid to the vulnerable, the Republican tax proposals are a massive budget-buster.  No Member who votes for this reconciliation bill can ever again be taken seriously in protestations about the deficit. 

     On the face of it, this dilemma might seem likely to fracture the Republican Caucus, with deficit hawks pushing to rein in the tax cuts and ramp up the entitlement cuts while moderates push to protect Medicaid, nutrition aid, and student loans.  This is precisely the kind of decision that the budget resolution process is intended to force.  The Republicans’ actual path, however, has been quite different. 

     Initially, it turns out that the only actual Republican moderates are in the Senate.  House Republican “moderates” have proven they will vote for anything the leadership puts in front of them; they just claim to be moderates to help them win close districts.  They objected to Rep. Jim Jordan becoming speaker because his provocative brand of extremism would make their “moderate” branding unsustainable, but on substantive legislation they have posed no problems for the leadership – even in a closely divided House where just two or three of them could easily force changes. 

     Then, too, the “deficit hawks” turn out to be less principled than partisan.  Unlike the “moderates”, they have been willing to defy their leadership to vote down spending bills.  But they generally have only done so under Democratic presidents.  The tax cuts President Trump is proposing would balloon the deficit far more than all the prior bills they voted down combined.  Yet the “deficit hawks” have done nothing to temper that extravagance, confining themselves to advocating even more devastating cuts to programs for low-income people. 

     House and Senate Republican leadership therefore regarded their problems as cosmetic rather than substantive and concocted a cosmetic rather than substantive solution.  Instead of negotiating the contours of the coming reconciliation bill as conference committees are expected to do, they opted to give each faction a fig leaf to cover its votes. 

     For the House “deficit hawks”, the budget resolution directs the House (only) to make cuts of staggering proportions in programs for low-income people.  The prescribed House bill would still increase in the deficit radically, but the “deficit hawks” already voted for that when they supported the budget resolution on initial passage earlier.  The “compromise” does not ask them to vote for any greater increase in the deficit than they already have. 

     For the Senate moderates, the “compromise” budget resolution establishes a relatively low minimum amount of cuts to safety net programs in the Senate (only).  It thus would allow a reconciliation bill that would fund the tax cuts almost entirely by increasing the deficit.  The resolution allows the Senate to propose deeper human services cuts, but it has little reason to do so as its reconciliation bill will go to conference committee with a House bill with draconian reductions. 

     For the House “moderates”, the budget resolution offers essentially nothing – because the House “moderates” have repeatedly demonstrated that nothing is required to secure their votes. 

     The various groups can cast their eyes on the other chamber’s half of the budget resolution:  House “fiscal hawks” can worry that the Senate bill is likely to be an even bigger budget-buster, and Senate moderates can worry about draconian cuts to the safety net in the coming House reconciliation bill.  But the leadership is counting on each group to focus on their own chamber’s part of the resolution.  Perhaps the House “moderates” can tell their constituents that they are voting for huge human services cuts because the budget resolution allows their Senate counterparts (but not them) to vote for smaller cuts. 

     The game plan seems to be to obscure the meaning of all votes prior to the vote on final passage of the conference agreement on the reconciliation bill.  The House will pass a bill the “deficit hawks” can stomach (with the “moderates” promising that the human services cuts will come down in conference with the Senate).  The Senate will pass a bill with less headline-grabbing safety net cuts as its “deficit hawks” promise greater “fiscal sanity” in negotiations with the House.  Then the leadership will craft a final agreement that looks essentially like the House bill and ram it through before its contents are widely known.  A few Senate Republican moderates, particularly those up for re-election next year, can vote “no” without endangering its passage; everyone else will justify their votes as necessary to prevent a tax increase at the outset of a recession. 

     To further camouflage what they are doing, Republican leadership is attempting an audacious revision of accounting rules.  When they enacted the 2017 tax cuts, they insisted that the cost was “only” $1.9 trillion by insisting that many provisions would have no fiscal effect in the years after their scheduled expirations.  Now Republican leadership wants to assume that that previously-neglected fiscal effect is already in the baseline so that the effect of their legislation will be measured by how much it further increases the deficit beyond the policies in the 2017 Act.  Thus, the deficit impact of the 2017 policies beyond the end of this year would never be taken into account for either bill.  This would be the equivalent of the Democrats enacting an expanded, refundable Child Tax Credit for a year – which they did – and then claiming it cost nothing to make it permanent – which they did not, and which Republicans would have denounced to no end had the Democrats tried.

     Republican efforts to persuade the Senate Parliamentarian to accept this “current policy” baseline in defiance of law appear to have run into a brick wall – a useful reminder of the value of a parliamentarian with integrity even if one disagrees with some of her decisions.  Instead, they will have their budget committee chairs present tendentious tables with the costs of continuing the 2017 tax cuts baked in.  This likely will shape the coverage of credulous journalists insufficiently numerate to recognize the inconsistency of this position with the one many of the same Republicans adopted in 2017 and those fearing a retaliation if they write stories deemed “biased” by Republican leaders. 

     Leadership will keep the actual bills concealed until just before they come up for a vote.  In particular, they do not want the time between the legislation’s release and a key vote to include a congressional recess, when constituents can urge their Members to vote it down.  House Republicans apparently believe they can get their reconciliation bill drafted and passed before the Memorial Day Recess.  Given the passivity of the “moderates” and “fiscal hawks”, they may well be correct.  Indeed, the larger difficulty may be between special interests jostling to add their pet provisions to the tax cut package.  If the leadership is not confident it can lock down a deal before the recess, however, it likely will keep the legislation obscure to allow Members to represent it as whatever might please their districts.  In general, however, the leadership seems to feel it must move quickly before voters’ irritation with chaotic governance and anxiety about the economy narrow Republicans’ room to maneuver.

     @DavidASuper1  @DavidASuper.bsky.social