Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State by Mark Tushnet :: SSRN

Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State by Mark Tushnet :: SSRN

Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State

Harvard Public Law Working Paper No. 22-03

31 Pages Posted: 3 Apr 2022 Last revised: 9 May 2022

Mark Tushnet

Harvard Law School

Date Written: February 18, 2022

Abstract

This Essay offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific inquiries showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects of the COVD crisis in 2020.

A summary of the overall argument is this: The COVID virus had characteristics that made it exceptionally difficult to develop policies that would significantly limit its spread until a vaccine was available, and some of those characteristics went directly to the claim that the administrative state could respond flexibly to rapidly changing conditions. But, and here is where the developing critique of claims about scientific expertise enters, the relevant administrative agencies were bureaucracies with scientific staff members, and what those bureaucracies regard as “the science” was shaped in part by bureaucratic and political considerations, and the parts that were so shaped were important components of the overall policy response.

Part II describes policy-relevant characteristics of knowledge about the COVID virus and explains why those characteristics made it quite difficult for more than a handful of democratic nations to adopt policies that would effectively limit its penetration of their populations. Part III begins with a short presentation of the aspects of the STS critique of claims about disinterested science that have some bearing on policy responses to the pandemic. It then provides an examination shaped by that critique of the structures of the Food and Drug Administration and the Centers for Disease Control, showing how those structural features contributed to policy failures. Part IV concludes by sketching how the STS critique might inform efforts to reconstruct rather than deconstruct the administrative state, proposing the creation of Citizen Advisory Panels in science-based agencies.

Keywords: administrative law, COVID, science and technology studies

Suggested Citation:

Tushnet, Mark V., Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State (February 18, 2022). Harvard Public Law Working Paper No. 22-03, Available at SSRN: https://ssrn.com/abstract=4038420 or http://dx.doi.org/10.2139/ssrn.4038420

The Administrative State, Inside Out by Cass R. Sunstein :: SSRN

The Administrative State, Inside Out by Cass R. Sunstein :: SSRN

The Administrative State, Inside Out

Harvard Public Law Working Paper No. 22-02

15 Pages Posted: 1 Apr 2022 Last revised: 9 May 2022

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: March 29, 2022

Abstract

In the United States, are administrative agencies illegitimate? A threat to democracy? A threat to liberty? A threat to human welfare? Many people think so, and in important ways, they are surely correct. But an understanding of the actual operation of the administrative state in the United States, seen from the inside, makes it exceedingly difficult to object to “rule by unelected bureaucrats” or “an unelected fourth branch of government.” Such an understanding casts a new light on some large and abstract objections from the standpoint of democracy, liberty, and welfare. Indeed, it makes those objections seem coarse and insufficiently uninformed. What is needed is less in the way of arguments from adjectives and nouns, and more conceptual and empirical work on welfare and distributive justice, and on how regulators can increase both.

Keywords: administrative state, nondelegation doctrine, welfare, liberty

JEL Classification: K, K10

Suggested Citation:

Sunstein, Cass R., The Administrative State, Inside Out (March 29, 2022). Harvard Public Law Working Paper No. 22-02, Available at SSRN: https://ssrn.com/abstract=4069458 or http://dx.doi.org/10.2139/ssrn.4069458

The Young Lords: Building Power through Direct Action - Fernandez - LPE Project

The Young Lords: Building Power through Direct Action - LPE Project

Johanna Fernández (@JFernandez693) is associate professor of History at Baruch College of the City University of New York and author of The Young Lords: A Radical History.

PUBLISHED 05.12.22

They had simply been looking for a space to feed breakfast to poor children before school. The First Spanish United Methodist Church (FSUMC) seemed an ideal place. Conveniently situated in the center of East Harlem, the spacious building was closed except for a couple of hours on Sunday. But its priest, an exile of Castro’s revolutionary Cuba, denied the use of the church. In late December 1969, two months after their initial request was denied, the militant activists known as the Young Lords nailed the doors of the FSUMC shut after Sunday service and barricaded themselves inside.

Although this Puerto Rican counterpart of the Black Panther Party is today largely unknown, those seeking to build a more just world have much to learn from their tenacity and intrepid organizing skills. Beginning in 1969, this unexpected cohort of New York radicals unleashed a series of riveting urban guerrilla campaigns against the city’s racist policies and contempt for the poor.

As Barry Gottehrer, advisor to then NYC Mayor John Lindsay, told me in an interview, the Young Lords “couldn’t be placated with anti-poverty money, and you couldn’t mess with them either. They took over a church and a hospital and made out like bandits on the evening news.” In Chicago, they occupied a police precinct. In so doing, the Young Lords identified and targeted the embodiments of power at the local level—institutions of influence and authority in the everyday lives of urban dwellers. They weren’t simply fly-by-night activists; they were grassroots organizers who launched strategy-driven campaigns. They built a highly disciplined revolutionary organization with an analysis of the root causes of structural problems, a theory of change, and a vision for a new society, one organized around human need rather than profit.  

As Pablo Guzmán, one of the founders of the Young Lords, summarized the political divisions between the Young Lords and the board of the church: “Their idea is that Puerto Rican people dig being poor, and that they made it [through hard work], so why can’t everybody else. . . . They think that Puerto Rican women on welfare spend their money on beer, play the numbers, and dig the gutter.” The board presumed that the poor brought poverty onto themselves through their irresponsible behavior and lack of values, personal drive, and work ethic. The reasoning implied that the poor did not deserve sympathy; help would only enable shiftlessness and deepen dependence—all of which justified the board’s refusal to allow use of the church to feed poor children.

In the 1960s, amid a new wave of displacement occasioned by postwar economic and demographic changes, these deep-seated ideas about poverty gained widespread political currency when social scientists developed a theory of culture to explain poverty. Drawing on anthropologist Oscar Lewis’s 1959 study of Mexicans, they posited that low-income people were trapped in a self-perpetuating “culture of poverty,” a web of pathological behaviors that, when passed down to their children, reproduced intergenerational cycles of poverty and hindered economic advancement.

For their part, the Young Lords argued that displacement, post war deindustrialization, automation, and colonization drove want among Puerto Ricans. Their battle with the FSUMC is one of many examples of how people of color used protest and direct action to force their way into public debate and challenge the logic of such arguments.

CHURCH OCCUPATION

In the wake of increasing state violence against activists, the decision to turn the Lord’s house into a protest site was a brilliant tactical move. It created a sanctuary protected from violent reprisals. A year earlier, in April 1968, after hundreds of Columbia University students occupied major campus buildings protesting the Vietnam War and the university’s gentrification of Harlem, students were dragged from occupied buildings by police wielding billy clubs.

At the East Harlem church, such violence was politically untenable.

Alexander Hamilton, Enslaver? New Research Says Yes - The New York Times

Alexander Hamilton, Enslaver? New Research Says Yes - The New York Times

By Jennifer Schuessler

Published Nov. 9, 2020Updated Nov. 11, 2020



The question has lingered around the edges of the pop-culture ascendancy of Alexander Hamilton: Did the 10-dollar founding father, celebrated in the musical “Hamilton” as a “revolutionary manumission abolitionist,” actually own slaves?

Some biographers have gingerly addressed the matter over the years, often in footnotes or passing references. But a new research paper released by the Schuyler Mansion State Historic Site in Albany, N.Y., offers the most ringing case yet.

In the paper, titled “‘As Odious and Immoral a Thing’: Alexander Hamilton’s Hidden History as an Enslaver,” Jessie Serfilippi, a historical interpreter at the mansion, examines letters, account books and other documents. Her conclusion — about Hamilton, and what she suggests is wishful thinking on the part of many of his modern-day admirers — is blunt.

“Not only did Alexander Hamilton enslave people, but his involvement in the institution of slavery was essential to his identity, both personally and professionally,” she writes.

Alito's Arrogance and the End of Roe | Garrett Epps Washington Monthly

Alito's Arrogance and the End of Roe | Washington Monthly

By Garrett Epps

This may be just me, but one paragraph in Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization stands out for its thoroughgoing mix of hypocrisy and dishonesty. Advocates of legalized abortion, Alito writes, argue that “without the availability of abortion … people will be inhibited from exercising their freedom to choose the types of relationships they desire, and women will be unable to compete with men in the workplace and in other endeavors.”

But, Alito explains, the foes of abortion have the answer to this lament:

They explain that attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted “safe haven” laws, which generally allow women to drop off babies anonymously; and that a woman who puts her new­born up for adoption today has little reason to fear that the baby will not find a suitable home. They also claim that many people now have a new appreciation of fetal life and that when prospective parents who want to have a child view a sonogram, they typically have no doubt that what they see is their daughter or son.

Now there are three things wrong with this rosy picture of childbirth. First, the all-caring nanny state that Alito describes—guaranteeing medical care, pregnancy leave, and freedom from discrimination—not only does not exist for most Americans but also has been blocked in large part by Alito and the others who form his majority (we do not know whether he has five votes or six, though he writes with the assurance of a ward heeler who knows the fix is in to stay). As of 2020, 91.4 percent of Americans do have some form of health insurance—but 30 million Americans do not. One reason that many do not is that the Court’s conservative majority went out of its way to gut the Medicaid expansion provision of the Affordable Care Act, which offered health insurance to lower-income Americans; as a result of that decision, conservative states have refused to allow families within their borders to take advantage of this program. Since then, Alito himself, with the conservative majority, has made it clear that any employer with the vaguest kind of religious objection to contraception doesn’t have to provide insurance that covers it—a gap that harms women in particular. Nor is this conservative majority particularly concerned with the injustice of sex discrimination on the job (remember Lilly Ledbetter?).***

***[Justice Samuel] Alito insists that abortion is different from any other right “because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘un­born human being.’” 

Thus, “to ensure that our decision is not mis­understood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

We have Sam Alito’s word on that; many do not find that reassuring (I am one) and predict a renewed assault on contraception, LGBTQ rights, and same-sex marriage. That may come, but as scripture says, “Sufficient unto the day is the evil thereof,” and this day has enough present evil to occupy us here and now. For the moment, the nation should focus on the very real and immediate effects this contemptuous judicial coup de main will inflict on real women, children, and families as soon as the edited version (even if softened in the editing process with soothing John Roberts–style rhetoric) is released.

For the same reason, I think that the swoons of horror coming from the right at this leak may safely be ignored. There have been leaks before—most recently when someone on the conservative side of the Court leaked that Chief Justice Roberts had changed his vote in the Obamacare cases. (That was done to pressure Roberts to conform to the conservative attack on the Affordable Care Act.) Leaks from the Court are not new, but they have been rare and (rightly) regarded as dishonorable.

But those were in a very different country, and besides, that Court is dead. The Court that readies itself to gut American women’s reproductive rights is a very different beast. This Court has been transformed—in the broad light of day, with the collaboration of at least the three Trump appointees, who willingly joined the Trump/McConnell project—into an extension of the Republican Party. Its majority members are willing to troop to the McConnell Center in Louisville to bend the knee before their partisan patron and to do his bidding under cover of their black robes.

Justices like to speak of Congress and the president as the “political branches,” implicitly claiming for the Court a place as “nonpolitical” and above partisan reproach. That locution is achingly obsolete today; few institutions in the United States are as openly partisan as the post-Trump Supreme Court.

So here, dear justices, is a lesson in politics. The White House and Congress must deal with leaks, and now so must you. Leaks are a fact of political life. Get used to them. 

Maria Marcus, Public Interest Lawyer and Mentor, Dies at 88 - The New York Times

Maria Lenhoff  Marcus's father Arthur was a member of the Austrian Constitutional Court.  After the court ruled against the Nazis in 1938 he had to flee with his family.  Maria, five, skied from an Austrian mountain top to freedom in neutral Switzerland.  Her father became a law professor at the University of Buffalo. - GWC

Maria Marcus, Public Interest Lawyer and Mentor, Dies at 88 - The New York Times

By Sam Roberts

Maria Marcus, a law professor who as a public interest lawyer defended civil rights in the South and successfully argued six cases before the United States Supreme Court representing New York State, in one instance winning unemployment benefits for striking workers, died on April 27 at her home in Manhattan. She was 88.

Her death was confirmed by her daughter Valerie Marcus.

Professor Marcus argued the cases before the Supreme Court representing the New York attorney general. She was an assistant attorney general from 1967 to 1978 and chief of the office’s litigation bureau from 1976 to 1978.

In early 1979, the court agreed, 6-to-3, in New York Telephone v. New York State Department of Labor, that the state was empowered to require companies to pay unemployment benefits to striking workers. (Professor Marcus argued the case in 1978.)

The justices rejected the argument by the phone company that because the law implicitly favored labor over management, it had to yield to federal labor laws calling for governmental neutrality. In its ruling, the court affirmed an appellate court’s decision that held that even though the law placed the state on the side of labor during a strike, Congress had not imposed a uniform national policy on jobless benefits for strikers, leaving it to the states to decide.nue reading the main story

According to the Supreme Court Historical Society, of the 160 women who have argued before the court since 1880, only eight appeared more than Professor Marcus. She was tied for ninth place with five lawyers, including Ruth Bader Ginsburg, for the most arguments by a woman before the court from 1880 to 1980.

She taught at the Fordham University School of Law from 1978 until her retirement in 2011. She was only the second woman to become a tenured full professor there.

Professor Marcus moderated Fordham’s award-winning moot court program for 42 years. In 1995, a team of hers won the National Moot Court Competition sponsored by the New York City Bar Association and the American College of Trial Lawyers.

She was credited with writing one of the earliest law review articles on domestic violence, “Conjugal Violence: The Law of Force and the Force of Law,” in 1981.

Judge Nicholas Garaufis of Federal District Court in Brooklyn, who was a co-counsel on the unemployment benefits case before the Supreme Court, described Professor Marcus in a phone interview as a “rigorous litigator who was a perfectionist, but a tremendously patient mentor.”

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Dana Milbank: | Supreme Court’s hacks reward Republicans’ betrayal of democracy - The Washington Post

Opinion | Supreme Court’s hacks reward Republicans’ betrayal of democracy - The Washington Post

By Dana Milbank

So Senate Republican leader Mitch McConnell thinks the leak of the Supreme Court’s draft opinion overturning Roe is a “toxic spectacle” and an “attack.” Chief Justice John Roberts calls it a “betrayal.”

Cry me a river.

There is indeed a toxic spectacle and a betrayal going on here, but it isn’t the leak. It’s the betrayal of democracy by McConnell’s Republicans and the toxic spectacle of the Roberts court aiding it.

The reported 5-to-4 split on the draft shows that this cataclysmic ruling would be forced on the public by the narrowest possible majority. This means the ruling is possible only because of the seat on the court McConnell and his Republican colleagues effectively stole by refusing for 293 days to confirm — or even consider — President Barack Obama’s duly nominated candidate, Merrick Garland.

Will the Supreme Court survive the stench of overturning Roe? | Courthouse News Service

Will the Supreme Court survive the stench of overturning Roe? | Courthouse News Service

As abortion rights are hanging by a thread while the country waits for the high court to make its ruling on Roe v. Wade, legal experts say the court’s legitimacy is on the same path. 

KELSEY REICHMANN / May 4, 2022

Alito cites Matthew Hale, 17th century reactionary, on women's rights

In Justice Alito’s draft opinion reversing Roe, he writes about “an unbroken tradition of prohibiting abortion on pain of criminal punishment,” up until Roe in 1973. He cites, as historical authority, Sir Matthew Hale. Let me tell you about Hale & his views toward women. THREAD

 

Guten Tag, please find the unroll here: https://t.co/sdgsBYtw08 Share this if you think it's interesting. 🤖

— Thread Reader App (@threadreaderapp) May 4, 2022

"A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court" by Jed Handelsman Shugerman :: SSRN

"A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court" by Jed Handelsman Shugerman :: SSRN

Jed Handelsman Shugerman

Fordham Law School

Date Written: May 4, 2022

Abstract

Over the past three decades, the Supreme Court has struck down federal statutes by a bare majority with unprecedented frequency. This Article shows that five-four decisions regularly overturning acts of Congress are a relatively recent phenomenon, whereas earlier Courts generally exercised judicial review by supermajority voting.
One option is to establish the following rule: 

The Supreme Court may not declare an act of Congress unconstitutional without a two-thirds majority. The Supreme Court itself could establish this rule internally, just as it has created its nonmajority rules for granting certiorari and holds, or one Justice who would otherwise be the fifth vote could adopt the rule on his or her own. 

Congress arguably has the power to enact such a rule under the Exceptions and Regulations Clause in Article III of the Constitution.

Part I of this Article traces the institutional value of deference to Congress and of voting by consensus throughout the history of the Supreme Court, and along with a detailed appendix, it shows how rare 5-4 splits were in invalidating federal legislation. 

Part II supports this voting rule with deliberative democratic theory, epistemology, and constitutional values. A consensus rule minimizes the problem of, and more importantly, the appearance of, arbitrariness, and it promotes democracy's values of dialogue, consensus, reason, and legitimacy. The Constitution's structure of checks and balances and the Article V amendment process point to a two-thirds rule as symmetrical and appropriate for constitutional politics, especially for one branch to check the other two.

Part III discusses the mechanics of the rule in practice. Interviews with some of the judges on state courts indicate that their courts abide by the rule in good faith and do not subvert it. 

Part IV argues that Congress has the power to create the rule, as Article III "exceptions and regulations" for the Supreme Court's jurisdiction. 

Part V briefly surveys similar proposals during the 1820s, Reconstruction, the Progressive Era and the 1920s, the New Deal, the Warren Court, and the Burger Court.
If the goal of judicial review is to guard against government abuses, there also must be safeguards against the Court's abuse of its final and supreme power over the law.

Suggested Citation:

Shugerman, Jed Handelsman, "A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court" (May 4, 2022). Georgia Law Review, Vol. 37, No. 3, 2003, Available at SSRN: https://ssrn.com/abstract=

The unthinkable has happened | Verniero - Opinion - nj.com

This is not what the founders had intended. Alexander Hamilton could not have been clearer in Federalist Paper No. 78 that to do their jobs properly, judges had to be independent of the elected branches. That independence is accomplished by lifetime tenure and the freedom to act without regard to popular opinion or political influences. A leaked judicial opinion trespasses on the court’s work by distorting the entire dynamic in which judicial decisions are reached and finalized.- Peter G. Verniero

Former New Jersey Supreme Court Justice Peter Verniero is shocked, shocked, by the "Unthinkable" breach of protocol by someone unknown - who did the rest of us the favor of a glimpse  of the the Supreme Court on the brink of reversing a half century of law because they have been able to construct a supermajority of judges, not voters.

I think  most people are shocked by the tone and the conclusions of Justice Samuel Alito's draft  opinion in Dobbs v. Jackson Women's Health. which apparently expresses the views of a majority of the Court for whom the draft opinion proposes to speak.  That is the substantial evidence of the depth of the emotional and ideological divide in the Court and the country.  200 Fed Soc vetted new 

judges are already showing that readiness to drastically intervene in administrative and other 

Executive policy decisions.  Alarming but not unexpected. What shocks me is that the draft's proposed deference to local prosecutors and legislators could lead to the indictment of women and doctors, and even those who sell medicine or provide material aid.

In my opinion the least important thing we could do is add to the clanging of the bell about a breach of protocol by someone unknown, a breach which may be a violation of law.  In the great scheme of things this breach is a nick, not the body blow that the draft threatens.

The breach will be yesterday's news tomorrow.  We can await the investigation.  I think we all agree that if the leaker applied to work for us we would turn him/her down for fear that he/she would breach the confidentiality we owe our clients.  Since there is broad sentiment to say something about the breach I would say no more than that.  We have no basis for speculating who is responsible for the leak.  Nor does this leak have any broad implications except for the leaker.

- GWC

The unthinkable has happened | Opinion - nj.com
By Peter G. Verniero


The once unthinkable has now happened. A draft opinion of the United States Supreme Court has leaked to the press, apparently for the first time in history. The leak itself reflects another sad step toward casting the court as a political body. Whatever your preferred jurisprudence, a leak of this kind is a most unfortunate development for the rule of law.


The leak involved the case of Dobbs v. Jackson Women’s Health Organization, which implicates abortion rights found under Roe v. Wade. That the leak related to an abortion decision only exacerbates the harm that it has inflicted on the judiciary as an institution. Few issues other than abortion have caused more national divisiveness. There are deeply held views on both sides. It is a critically important subject deserving of an orderly judicial deliberation.



That orderly deliberation has now been interrupted. A wave of public praise or criticism for the draft opinion is being registered by advocates, depending on their perspective. Such commentary after an opinion’s official release is a healthy hallmark of democracy. But a high volume of commentary on a draft opinion runs the risk of something else entirely.



A judicial opinion goes through many iterations before it is officially released. Sometimes the final product closely resembles the first draft, sometimes not. Indeed, sometimes a first draft of a majority opinion turns into a concurring or dissenting opinion by the time the court is finished with it. Unless the final version of Dobbs ends up, word for word, being the same as the leaked version, we always will wonder whether the final version was unduly influenced by public commentary.

Alito’s Plan to Repeal Roe—and Other 20th Century Civil Rights - The Atlantic

Alito’s Plan to Repeal Roe—and Other 20th Century Civil Rights - The Atlantic

By Adam Serwer (Staff Writer)

If you are an American with a young daughter, she will grow up in a world without the right to choose when and where she gives birth, and in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies.

That is the significance of the draft Supreme Court opinion leaked to Politico, which shows that the right-wing majority on the Court intends to discard Roe v. Wade and Planned Parenthood v. Casey, landmark precedents guaranteeing the constitutional right to abortion. The justices can change their minds before judgments are issued, but their opinions are drafted after they’ve taken an initial vote on the cases themselves. The draft likely reflects the direction of the final decision, even if the scope of that decision changes.

The draft, written by Justice Samuel Alito, is sweeping and radical. There is no need to dwell too long on its legal logic; there are no magic words that the authors of prior opinions might have used in their own decisions that could have preserved the right to an abortion in the face of a decisive right-wing majority on the Court. The opinion itself reads like a fancy press release from a particularly loyal member of the GOP Senate caucus. Alito’s writing reflects the current tone of right-wing discourse: grandiose and contemptuous, disingenuous and self-contradictory, with the necessary undertone of self-pity as justification. Alito, like the five other conservative justices, was placed on the Court by the conservative legal movement for the purpose of someday handing down this decision. These justices are doing what they were put there to do.

Alito claims to be sweeping away one of the great unjust Supreme Court precedents, such as Dred Scott v. Sanford, which held that Black people had no rights white men were bound to respect, or Plessy v. Ferguson, which upheld racial segregation. But in truth, Alito is employing the logic of Plessy, allowing the states to violate the individual rights of their residents in any way their legislatures deem “reasonable,” as the opinion in Plessy put it. Homer Plessy’s argument was that the segregation law violated his Fourteenth Amendment rights, and that those rights should not be subject to a popularity contest in every state in the union; what Alito describes as a “restrictive regime” of constitutional protection for abortion rights is the kind of safe harbor Plessy himself sought.

In Plessy, Justice Henry Billings Brown held that Louisiana’s segregation law, as far as the Fourteenth Amendment was concerned, “reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature.” Alito has now applied this same logic to abortion—but not just abortion—arguing that in the future, courts should defer to state legislatures “even when the laws at issue concern matters of great social significance and moral substance.” There’s no doubt that the Louisiana legislature felt the 1890 Separate Car Act was such an issue.

“Plessy is, at its absolute core, a states’-rights case, in which the Court envisioned a notion of federalism so weak, so toothless, so bereft of substance that the federal government had no legitimate role in protecting Black people from states imposing racial segregation upon them,” Aderson Francois, a law professor at Georgetown University, told me. “This draft does the same thing: It envisions a notion of federalism so weak, so toothless, so bereft of substance that the federal government has no legitimate role in protecting women from states imposing forced births upon them.”

The implications of this ruling are therefore tremendous. 

Could Congress Ban Abortion Nationwide if Roe Gets Overruled?

Could Congress Ban Abortion Nationwide if Roe Gets Overruled?

By Ilya Somin (Antonin Scalia School of Law, George Mason University)

As you probably know by now, a leaked draft Supreme Court opinion indicates there may well be five justices prepared to overrule Roe v. Wade. For a long time, many assumed that if Roe were to be overruled, abortion policy would be "left to the states." That will indeed happen in the short run. But such a state of affairs might not last. Many Republicans have been advocating nationwide bans on abortion, including very sweeping ones that would forbid all abortions more than six weeks into a pregnancy.  For their part, many Democrats, including Senate Majority Leader Chuck Schumer, back nationwide legislation protecting abortion rights.

Would such laws be constitutional? I have written about this issue twice before (see here and here). The bottom line is that current Supreme Court precedent likely would enable Congress to ban most, if not all, abortions if it wanted to. That's because the Court has endorsed a ridiculously broad interpretation of Congress' powers to regulate interstate commerce. But that precedent might be pared back, thanks in part to that unlikely champion of abortion rights, Clarence Thomas.

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Jurisdiction Stripping as a Tool for Democratic Reform of the Supreme Court: Written Testimony for The Presidential Commission On The Supreme Court of the United States by Christopher Jon Sprigman :: SSRN

Jurisdiction Stripping as a Tool for Democratic Reform of the Supreme Court: Written Testimony for The Presidential Commission On The Supreme Court of the United States by Christopher Jon Sprigman :: SSRN

NYU School of Law, Public Law Research Paper No. 21-34

24 Pages Posted: 16 Aug 2021 Last revised: 6 Dec 2021

Christopher Jon Sprigman

New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy

Date Written: August 15, 2021

Abstract

In this written testimony I will focus in depth on what I believe to be the most promising strategy for reducing the power of courts. That is for Congress to use the power that the Constitution has always given it to override, in appropriate cases, decisions of the Supreme Court and indeed any federal court. Not through an Article V amendment, which is virtually always an impossible hurdle to clear. But rather through Congress’s Article III authority to strip the jurisdiction of both the Supreme Court and the lower federal courts. Congress’s virtually plenary power to determine courts’ jurisdiction is, if used with discretion and determination, a power to enforce Congress’s interpretations of the Constitution’s meaning, and to deprive courts of jurisdiction to review those interpretations. It is, in effect, a power to limit, or to qualify, judicial supremacy.

Sprigman, Christopher Jon, Jurisdiction Stripping as a Tool for Democratic Reform of the Supreme Court: Written Testimony for The Presidential Commission On The Supreme Court of the United States (August 15, 2021). NYU School of Law, Public Law Research Paper No. 21-34, Available at SSRN: https://ssrn.com/abstract=3905354 or http://dx.doi.org/10.2139/ssrn.3905354

Weaponizing the Electoral System | Stanford Law Review

Weaponizing the Electoral System | Stanford Law Review

By Samuel Issacharoff - NYU

Abstract. 

The gravest threat to our democracy does not come from obstacles to voting—indeed, despite state-level efforts at retrenchment, voting remains far easier across the country than in 2008 when the United States first elected a Black president. Rather, the greatest concern is the effort to solidify party control of election mechanisms, turning the ordinary task of tabulating election results into an opportunity for partisan mischief.

Under the strains of 2020, despite COVID-19 and its many challenges, the system held up remarkably well. But the stability of these structures depends on a long-haul bipartisan commitment to repeat engagements, a commitment anathema to the demands of populist immediacy. These deservedly obscure local agencies and officials were targeted by President Trump as a vulnerability in the process of certifying election results and one that could be manipulated through partisan appeals.

This Essay will examine the fragility of election structures that depend on bipartisan agreement to certain ground rules. I argue that democracies depend on two critical features: (1) a commitment to repeat play; and (2) institutional guardrails such that the majority (or even plurality) will win according to preset rules, but not win too much. The populist fervor of the times threatens both. This Essay explores how close to the abyss the election system came in 2020, and how delicate the balance remains going forward.

Introduction

The assumption that elections should determine the presidency is so ingrained in the American political psyche that the United States held contested elections even during the Civil War and World War II. This is decidedly not the norm in other democracies—Churchill, for example, faced no new parliamentary elections during the War. But in the United States, elections historically have gone forward, with the ordinary forms of election administration determining the winner and, most critically, the ordinary forms of rotation in office playing out, even in fraught election periods.

Until January 6.

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Yale Law Journal - Policing the Polity

Eisha Jain discusses America’s “deportation-centric” immigration paradigm, from its genesis in Chinese Exclusion, and to its modern use as a justification for domestic surveillance and racial exclusion, and proposes an alternative “polity-centric” approach.

Yale Law Journal - Policing the Polity

ABSTRACT. The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S. communities. 

Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices—including race-based demands to justify one’s presence—in light of the aim of building an integrated political community. 

This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine.

AUTHOR. Assistant Professor, University of North Carolina School of Law.

SEGALL: Of John McGinnis, Adrian Vermeule, Originalist Fallacies, and the Common Good - Dorf on Law

Dorf on Law: Of John McGinnis, Adrian Vermeule, Originalist Fallacies, and the Common Good

By Eric Segall

Last week on the Law & Liberty blog, Professor John McGinnis, a well-known academic originalist and libertarian, reviewed Professor Adrian Vermeule's new book "Common Good Constitutionalism." Vermeule's anti-originalist writings have been upsetting originalists for some time now and for good reason. His critiques of originalism are as persuasive and compelling as his program for what he deems to be the "common good" is disturbing. But we can learn a lot about the fallacies of originalism through a serious examination of McGinnis's futile attempts to critique Vermeule's book.

McGinnis begins by saying Vermeule's attacks on originalism are unlikely to succeed because "the originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists."

The Supreme Court does have a majority of Justices who self-identify as originalists but that is simply not the same as saying they decide cases like originalists. The examples of anti-originalist behavior on the Court could fill a book but here are a few key ones:

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Dorf on Law: Endorsement, Coercion, and the Nature of Legal Tests

Dorf on Law: Endorsement, Coercion, and the Nature of Legal Tests

By Michael Dorf (Cornell)

First, as Holmes famously stated in his Lochner dissent, "general propositions do not decide concrete cases." Even though constitutional tests are typically more specialized and thus less general than the constitutional text they implement, they are invariably somewhat general. That, after all, is what it means for a test to be a test--whether formulated as a rule or a standard. Even if the application of some test is straightforward in the context in which it is initially formulated, new cases will arise as to which the test will be indeterminate; or the test will be determinate but it will determine a plainly wrong (because unanticipated) answer, calling for the test's modification. Tests are necessary but insufficient to implement the Constitution.

Second, losers in legal debates typically do not give up. They regroup and fight on another front. Thus, prior to the Supreme Court's 1989 decision in Richmond v. Croson, justices who thought race-based affirmative action generally permissible argued for intermediate scrutiny. After they lost that battle, they argued--successfully--that the kind of strict scrutiny applicable to such affirmative action programs was different from conventional strict scrutiny in that it is not "fatal in fact." Opponents of affirmative action have been pushing back since then and will likely triumph next term in the UNC and Harvard cases. One sees a similar dynamic in the Court's free exercise jurisprudence. Since Employment Division v. Smith, the Court has officially rejected claims for religious exceptions from neutral laws, but increasingly it finds laws that seem religion-neutral are discriminatory.  In these two examples we see that once the Court settles on a test, the debate over what test to apply morphs into a debate over what the applicable test means.

Third, it is sometimes assumed that the choice between two (or more) tests poses a question of whether to adopt a liberal or conservative approach. We talk about strict, narrow, and forgiving tests, for example. That's sometimes true but not always. This week's oral argument in Kennedy v. Bremerton School District was a nice illustration....

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A Return to Classical Law? –Law & Liberty Symposium - re Vermeule's Common good Constitutionalism

A Return to Classical Law? –Law & Liberty Symposium - re Vermeule's Common good Constitutionalism

If there is one thing that conservatives have almost unanimously agreed on, it is that the Constitution’s meaning does not change over time. Few things have unified the right like the long-term battle against a morphing Constitution that adapts to apply justice according to what, in the judgment of the interpreter, the times require.

But even as originalism has gradually become the most widely accepted interpretive approach, some on the right have begun to argue for its abandonment. Adrian Vermeule’s new book, Common Good Constitutionalism, marks the most ambitious attempt yet to convince conservatives to jettison originalism in favor of left-wing constitutional theories. Law & Liberty contributors assess the book’s merits in a variety of contexts, including originalist methods, federalism, the broader postliberal project, and the relationship between formalist institutions and the common good.

Originalism for the Common Good
John O. McGinnis

A Common Good Requires a Common People
Jesse Merriam

Uncommonly Bad Constitutionalism
James M. Patterson

Policing Common Good Constitutionalism
James R. Rogers

Classical Historicism?
Paul Seaton

No emotional loss allowed for Affordable Care act: Cummings v. Premier Rehab Keller (04/28/2022)

20-219 Cummings v. Premier Rehab Keller (04/28/2022)

Many will have no remedy against discrimination. When a dr misgenders a patient but provides care. A hs student suffers sexual harassment. A Black customer is mistreated but ultimately served. The econ harm is likely zero. The dignitary harm is huge. Breyer gets it pic.twitter.com/JeUpV1g0gh

— Liz Sepper (@lsepper) April 29, 2022

Eric Segall: : Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

Dorf on Law: Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

By Eric Segall

A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway. 

I was probably wrong.

I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk about Vermeule's work during the debate. I skeptically asked both the Judge and the lawyer if they thought common good constitutionalism had any valence or relevance for the students and lawyers in attendance. They both were adamant that it had. Additionally, over the last few weeks, I've noticed a huge uptick on social media both among academics and others talking about common good constitutionalism as well as more book reviews, essays, etc., on Vermeule's work. I also was recently invited to participate in a book group discussion among academics covering his work. 

Like I said, I was probably quite wrong about the limited reach of common good constitutionalism and my belief that Vermeule's excellent critiques of originalism and formalism can be separated from his moral and religious visions, which I find quite troubling.

Vermeule's book fails to directly address what courts and legislatures should do on many issues of equality and equity that most people feel strongly about. Moreover, because a significant aspect of Vermeule's critiques of legalisms correctly focuses on the lack of transparency resulting from a focus by judges on procedures not substance, here are ten questions of substance for Vermeule to answer. Given both the rancor about his work, and his statements on Twitter that his book does not support that criticism, I think these questions should be fair game so we know where he stands. I have provided my answers as well (for the record, I’ve invited him to come on my Supreme Myths Podcast and he has politely said neither yes or no). 

One last thing before the questions. I have never met Professor Vermeule but we have communicated often by direct message and I have enjoyed these engagements. This blog post is not meant to put him on the spot but rather to encourage him to engage openly and honestly with his critics. I hope he responds.

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