Reverse Marbury

Andrew Coan

Recent developments have again raised the possibility that the Trump administration will openly defy the federal judiciary. This could play out in a number of different ways. But one plausible scenario has been largely overlooked: Government defendants might simply ignore a district court order while refusing to appeal. This strategy—what I have called “the appellate void”—would amount to a kind of reverse Marbury v. Madison, challenging judicial authority while leaving the Supreme Court powerless to respond.

When William Marbury sought a writ of mandamus from the Supreme Court directing Secretary of State James Madison to deliver his commission, Chief Justice Marshall faced a dilemma. If the Court issued the writ, President Jefferson would almost certainly have ignored it, exposing the Court's weakness. Yet dismissing Marbury's suit would signal that executive officials could violate legal rights without any judicial remedy.

As every first-year law student learns, Marshall's solution was to explain why Marbury was entitled to his commission, while holding that the Supreme Court lacked jurisdiction to order its delivery. In this way, the Court established judicial review of congressional legislation while issuing no order for the Secretary of State to defy. All President Jefferson could do was fume from the sidelines.

The appellate void places the shoe on the other foot. Where Marshall leveraged limits on the Supreme Court's jurisdiction to avoid issuing an order the President would have ignored, a modern President exploiting the appellate void could leverage those same limitations to ignore a district court order and shield this defiance from Supreme Court review. If the administration refuses to appeal, there is no case or controversy for the Supreme Court to decide. And under Marbury's own jurisdictional holding, the Court is forbidden from issuing a writ of mandamus ordering the government to comply because that would be an exercise of original, rather than appellate, jurisdiction.

For a fuller explanation, you can read my new paper on the appellate void here.

The Roberts Court’s Unprecedented Abuse of Precedent – And How It Is Destroying the Judiciary’s Role in the System of Checks-and-Balances

Guest Blogger

Bruce Ackerman

On SSRN:

From the days of the Federalist Papers and Marbury v. Madison, the Court’s commitment to reasoned elaboration of constitutional principle has served as the justification for its role in the system of checks-and-balances. Yet the very foundations of judicial legitimacy are at stake in two cases that the Roberts Court has scheduled for expedited consideration during the early months of its 2025-26 Term. These cases deal with the continuing legitimacy of Humphrey’s Executor’s unanimous decision upholding the constitutionality of “independent agencies” – most notably, the Federal Reserve and the Federal Trade Commission. This prospect has provoked a great deal of scholarly debate over the implications of relatively recent decisions by the Roberts Court on these issues. In contrast, my essay puts these decisions in a larger framework – emphasizing the crucial role played by the President and Congress in constructing “independent agencies” during the half-century preceding Humphrey’s unanimous decision upholding their constitutionality in 1935. It demonstrates that, after the breakthrough creation of the Interstate Commerce Commission by the Cleveland Administration, every President – from Theodore Roosevelt through Woodrow Wilson through Herbert Hoover – gained Congressional support for the creation of new independent agencies self-consciously organized to restrict presidential power in order to assure the deployment of impartial and expert regulation over crucial areas of socio-economic life. Justice Sutherland’s unanimous opinion of 1935 represents the self-conscious recognition of the legitimacy of this bipartisan affirmation of the role of expertise in modern government – and should not be cast aside without a principled confrontation with its historical foundations in American constitutional development.

No Appeal, No Compliance, No Remedy

Andrew Coan

When a federal district judge blocked the Trump administration's National Guard deployment to Portland, Stephen Miller called the ruling a "legal insurrection," and influential MAGA personalities called for the President to ignore the court's order. Though the administration ultimately appealed, this rhetoric marks an escalation. After several months of relative moderation, the prospect of outright executive defiance of the courts appears to be growing.

It is hard to predict exactly how such defiance would play out. But if the executive branch loses in district court and refuses to appeal, the Supreme Court would have no obvious vehicle to intervene and district judges few effective tools to enforce their own decisions. This “appellate void” is the product of several settled—and mostly pedestrian—jurisdictional rules, and the limits of the judicial contempt power.

First and most fundamentally, a prevailing party generally cannot appeal. This rule is rooted in the case-or-controversy requirement of Article III. As the Supreme Court explained in Deposit Guaranty National Bank v. Roper, "A party who receives all that he has sought is generally not aggrieved by the judgment affording the relief and cannot appeal from it." A defendant's noncompliance with a district court judgment does not create appellate standing for a prevailing plaintiff. Of course, noncompliance does injure plaintiffs in the colloquial sense. But only an injury caused by the judgment itself creates standing to appeal. 

Mandamus ordering executive compliance might seem like the obvious solution. But when a court issues mandamus to an executive official—commanding compliance with legal obligations—the writ runs horizontally across the branches, rather than vertically within the judiciary. An action seeking this sort of "horizontal" mandamus constitutes an original proceeding, not an appellate one. Following the logic of Marbury v. Madison, the Supreme Court and courts of appeals lack the power to entertain a mandamus action seeking to enforce executive compliance with a district court's order in such cases.

In theory, the contempt power provides a powerful tool for enforcing executive compliance. District courts can impose steep and escalating civil fines on defiant executive agencies and officials. They can even order the arrest and imprisonment of recalcitrant officials. But as the best recent scholarly work demonstrates, contempt has always been a fragile remedy against federal government defendants. In the face of sustained and strategic executive defiance, the doctrinal and practical obstacles may well prove insurmountable.

The most fundamental reason for this is that civil contempt sanctions ultimately depend on cooperation from the executive branch. By statute, the United States Marshals Service is subject to "the authority and direction of the Attorney General." A President determined to defy the courts could threaten marshals with termination and direct the Attorney General to choke off the operating capacity of the office in question. Criminal contempt sanctions are another option. But the President's pardon power looms over any criminal contempt proceeding against federal executive officials.

For a fuller explanation, you can read my new paper on the appellate void here.

E-Book of "The Actual Art Of Governing" Available for Pre-Order

Gerard N. Magliocca

My book on Justice Jackson's Youngstown concurrence will be out on Kindle in two weeks. The book tour (live and virtual) starts in November.

AAUP v. Rubio and the Big Chill

Guest Blogger

Evelyn Douek

Since it was handed down last week, AAUP v. Rubio has been justifiably celebrated for its strong reaffirmation that the First Amendment protects the speech of noncitizens just as it does the speech of citizens. And there has been significant coverage of the rhetoric of Judge Wiliam Young’s “blistering,” “stirring,” “searing” rebuke of the Trump Administration’s campaign to deport noncitizens for their political speech, and the ways in which his 161-page opinion grappled with how to do justice in the Trump Era. Less attention has been paid, however, to a key jurisprudential move the opinion makes and its importance in this particular moment. AAUP v. Rubio marks the first case of the Trump Era to explicitly identify and reject the primary and most pernicious form of speech suppression employed by this Administration: Chill.

What makes the opinion novel is that the First Amendment rights it vindicates are not those of the non-citizens that the Administration has attempted to deport for their speech, but instead those similarly situated persons who are now chilled from expressing themselves freely. Mahmoud Khalil, Rumeysa Ozturk, and the many other noncitizens that have been rounded up for their pro-Palestinian speech were not before the court in AAUP v. Rubio—the various legal challenges to their deportations remain ongoing. Instead, the case was brought by organizations representing students and faculty who argued that the Administration’s practice of publicly targeting and making an example out of these other non-citizens chilled them in the exercise of their own First Amendment rights. As Judge Young correctly identified, the damage of this kind of chilling campaign to public discourse is in fact much more severe than any individual act of censorship.

This is because chill is an especially harmful but efficient form of speech control, as the Administration well knows. Direct censorship is laborious, ad hoc, and happens only after the fact. Chill, by contrast, is a form of prior restraint administered by the speaker themselves out of fear. And Judge Young found that it was exactly this kind of chill that the Administration set out to create.  The government never set out to “deport all pro-Palestinian non-citizens,” Judge Young observed. Instead, it set out to do something “more invidious—to target a few for speaking out … with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence.”

Gaming Out the Appellate Void

Andrew Coan

Last spring, I wrote about the possibility that the executive branch might defy a district court order and refuse to appeal. As the prevailing party, the plaintiffs could not appeal. The result would be an appellate void, in which lower federal courts lack effective tools for enforcing their decisions against a recalcitrant executive and higher courts lack any obvious path to intervene.

Alternatively, after the Supreme Court's decision in Trump v. CASA, Inc., the executive branch might comply with court orders only as to specific plaintiffs, while continuing to enforce the challenged policies against everyone else. By refusing to appeal, the President would deny higher courts any opportunity to weigh in, without actually defying any binding judicial order. 

I have now written a full-length article gaming out these scenarios (forthcoming in Cornell Law Review).  The article first explains the jurisdictional dynamics that create the appellate void and why contempt sanctions offer little practical remedy. It then analyzes why a President might find this strategy tempting. In effect, the appellate void constitutes a reverse Marbury v. Madison. Instead of the Supreme Court asserting the power of judicial review, while leaving the President powerless to push back, the President would assert the power to defy the federal courts, while leaving the Supreme Court powerless to respond. 

This result is not inevitable. The appellate void strategy has real costs that might dissuade the President from embracing it, and courts and litigants have many potential responses. But if successful, the strategy would have large implications for judicial review, separation of powers, and the rule of law. The full article is available here. 

The Art of Replacing the Law with the Deal

Joseph Fishkin

The Government Shutdown and the Filibuster

David Super

     Senate Majority Leader John Thune evidently plans to keep bringing up the House-passed continuing resolution daily so that Senate Democrats must repeatedly deny it the sixty votes it needs to pass.  Meanwhile, House Speaker Mike Johnson has been keeping his chamber out of session so that Republicans can argue that the only way to end the shutdown quickly is to pass the House Republicans’ continuing resolution. 

     This is all rather silly theater.  Senate Democrats have proposed their own continuing resolution, and the government shutdown remains in place as much because Senate Republicans deny sixty votes to the Democratic bill as because Senate Democrats deny sixty votes to the Republican bill.  If the Senate were to agree on a bill, the House could be brought back in less than a day.  Indeed, if the Senate passed a continuing resolution with broad bipartisan support, the House could go back into session almost immediately with only a handful of Members, vote to suspend the rules, and pass the legislation with everyone agreeing not to prompt a quorum call. 

     Various informal bipartisan groups of senators are forming to try to facilitate the search of a settlement, but with the Republican leadership determined to make Democrats buckle there is no receptivity at the moment to any mediation.  Republicans seem to be shifting from claiming that Democrats are demanding health insurance for undocumented immigrants – an outright lie that most reporters recognized as such – to saying that health insurance premiums should be addressed in December – which is after open enrollment and after many low- and moderate-income families will have had to make painful financial choices about whether they can continue to afford health coverage.  We may see several rounds of this grasping for a winning message before anyone considers modifying their substantive position. 

     Underlying all this is the question of why Majority Leader Thune does not eliminate the filibuster and then pass the continuing resolution with the simple majority that he possesses.  It would seem that he is the one person who could end the shutdown tomorrow without yielding on any policy positions.  We cannot be sure he is not doing so, but several explanations seem likely.

Balkinization Symposium on Dylan C. Penningroth, Before the Movement-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023).

1. Jack Balkin, Introduction to the Symposium

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

3. Mark Tushnet, Legal Pluralism in “Before the Movement”

4. Steve Griffin, Penningroth’s  Achievement

5. Evelyn Atkinson, Black Civil Rights and Black Corporate Rights

6. Ian Ayres, Did Race Distort the rule of Taft v. Hyatt?

7. Mark Graber, The Weapons of the Weak Before the Movement

8. Dylan C. Penningroth, Symposium Response 1: The strange career of civil rights

9. Dylan C. Penningroth, Symposium Response Part 2: Centering and de-centering race

Shutdown, You’d Better Take Care

David Super

     Appropriations for much of the federal government just lapsed.  This begins a partial shutdown of the federal government.  The general news media is extensively covering this story’s broad outlines.  This post does not seek to retell that story but rather comments on five issues that media accounts are missing or confusing. 

     First, the cause of the shutdown is not as clear as it might be.  Democrats decided weeks ago that they would demand extension of expiring health insurance premium tax credits as a condition for any continuing resolution lasting more than a few days.  This makes sense:  even though the credits do not formally expire until the end of the year, open enrollment is fast approaching.  Millions of people may drop health coverage if the prices they see reflect the absence of the enhanced credits.  The affordability of health coverage clearly resonates with the electorate, and this issue is already splitting the Republican caucus. 

     On the other hand, Democrats have a more fundamental problem:  no “clean” continuing resolution is possible because the Administration has demonstrated that it will not follow appropriations legislation.  Democrats provided crucial votes for a continuing resolution in March, with the continuation of programs they favored their main motivation.  The Administration then ignored many of those appropriations while congressional Republicans moved a partisan rescission of billions of dollars for foreign aid and public broadcasting.

     Last Friday, the first impoundment case to reach the Supreme Court.  The Court stayed a district court’s injunction requiring the Administration to honor the admirably clear appropriations for a variety of foreign aid programs.  The Court did not say that the Administration was likely to prevail on the merits – as it has in many other cases decided on its Shadow Docket – and indeed went out of its way to caution against reading its action as signaling a decision on the merits.  Nonetheless, it granted a stay on a balancing of the equities.  Many of the grantees have already folded from the lack of the withheld funds, and more likely will be gone before the Court can decide the case on the merits.  Thus, as a practical matter, the Trump Administration is free to ignore appropriations acts, including a “clean continuing resolution”, for the foreseeable future.

     It is hard to see how Democrats can agree to a continuing resolution for any length of time that does not contain language firmly barring the (already preposterous) legal theories the Administration has offered to justify its impoundments.  But apparently they will not be emphasizing the Administration’s blatant disregard of the previous “clean continuing resolution” for which the Democrats voted. 

     Second, this shutdown may be harder than most to end precisely because the Administration has obliterated its ability to make a credible deal.  The path to ending past impasses was often greased with quiet promises to fund this or that project dear to powerful members of the minority party.  But if the Trump Administration will not honor statutory language, it certainly will not be bound by quite understandings or the ubiquitous appropriations “report language”.  This Administration also has shown far less sensitivity to public opinion than its predecessors, including Trump 1.0.  Congressional Republicans worry about offending swing voters, but they worry much more about offending the President.

     Democratic leaders, in turn, have remarkably little flexibility.  Much of their base is furious, having accepted a not-entirely-justified perception that Democrats are not fighting hard enough.  Fear of being skewered on Bluesky has profoundly shaped Democratic leaders’ choices, often in ways that actually undercut the progressive agenda.  After taking the difficult choice to provide the key votes for the continuing resolution in March, Democratic leaders were humiliated when the Administration impounded funds for many of the programs they voted to preserve.  These leaders will have difficulty backing down again even if public opinion turns decisively against them.  And because progressives have gotten into the habit of believing cherry-picked polling results circulated on social media, they may not give leadership the room to back down even if the shutdown is clearly losing the public. 

     Third, the only reason the Democrats have any say in any of this is because of the filibuster.  Alas, terrible cases of laryngitis seem to have afflicted the voices that caustically denounced anyone arguing for preserving the filibuster to guard against disaster. 

     Fourth, Office of Management and Budget Director Russell Vought’s threats of mass layoffs in the event of a partial government shutdown is a transparent fake – yet it seems to be drawing in a great many credulous commentators.  A partial government shutdown does not grant OMB any special powers.  In fact, it actually may temporarily make layoffs even more unlawful. 

     In a lapse of general appropriations, the Appropriations Clause of the U.S. Constitution and the Anti-Deficiency Act preclude the federal government from paying employees whose salaries are not covered by some specific appropriation still in force.  The Act also prohibits government officials from accepting unpaid service not explicitly authorized by law “except for emergencies involving the safety of human life or the protection of property”.  The Act clarifies that this emergency exception “does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.” 

     In practice, this means that most federal employees are furloughed and locked out of their jobs.  A few unlucky “essential employees” are required to report but not paid.  This arrangement has worked through numerous appropriations lapses without any widespread problems.  Therefore, no layoffs – nothing beyond these temporary furloughs – are needed to honor the Anti-Deficiency Act.  In fact, because laying off government employees permanently is not an “emergency involving the safety of human life or the protection of property”, any Administration official performing this function during an appropriations lapse would be violating the Act.  Violations of the Anti-Deficiency Act carry criminal penalties, although we should not hold our breath waiting for Attorney General Bondi to bring indictments. 

     The layoffs that Director Vought threatens also violate civil service law in various ways, most obviously by providing less than the required sixty days’ notice.  The Administration has wantonly disregarded civil service law since January, but public employees’ unions’ suit was rejected on the grounds that any challenges must begin as grievances before federal personnel agencies.  That will often be impossible, however, because President Trump unlawfully fired the only Democratic member of the Merit Systems Protection Board, denying it a quorum to act on complaints.     

     The Administration has demonstrated its desire to lay off federal employees en masse since it took office:  this has absolutely nothing to do with a lapse in appropriations.  The only reason any federal employee is still working is that the Administration concluded that the risk of political embarrassment from abandoning that function outweighed the marginal appeal of sacking another civil servant. 

     Nothing about a government shutdown changes that calculus.  With or without a government shutdown, the Administration will lay off anyone it thinks it can get away with dumping; with or without a government shutdown, the Administration will not lay off anyone whose departure it fears will blow back on it.  Director Vought’s threats are naked attempts at intimidation that should not affect anyone’s assessment of a government shutdown, whatever they think about federal workers. 

     Finally, as someone who spends a fair amount of time talking with reporters about current events, I have noticed that, as a group, reporters are getting less and less interested in whether this or that Administration action is legal.  Law has limited value as predictor of what this Administration will do.  And with the Supreme Court so frequently overriding lower courts’ injunctions against the Administration’s lawlessness in minimally reasoned Shadow Docket orders, even many of the brightest and most capable reporters seem to feel little need to sort through statutes and caselaw.  I do not share their skepticism, but persuading them that law matters is getting more and more difficult.  That by itself is a fundamental change in our constitutional order. 

     @DavidASuper.bsky.social @DavidASuper1

Virginia Is For Vengeance

Gerard N. Magliocca

Presidents sometimes try to wield the criminal law against their political opponents. It never works. Jefferson went after Aaron Burr. That failed. FDR targeted Andrew Mellon. That was a flop. And so on. The Comey indictment (and the others that will surely be brought) will meet the same end.

The Mellon example is instructive. He was our most powerful Treasury Secretary not named Hamilton. Mellon was also wealthy. FDR wanted him prosecuted on criminal tax fraud charges. Robert Jackson, newly arrived at the DOJ, objected that a criminal charge was unwise and unwarranted. He was overruled. A federal grand jury in Pittsburgh then refused to indict Mellon, which was a major embarrassment for the Government. A civil tax case ensued that was still going on after Mellon died.

Grand juries work best when they are asked to indict well-known members of a local community on flimsy charges. Mellon was famous in Pittsburgh because (you might say) he owned half of town. James Comey, by contrast, is not a local celebrity. He just lives in Virginia. Nevertheless, the grand jury asked to indict Comey rejected one of the Government's three charges. That is unusual. There is some confusion about what else happened, which should come as no surprise given the resignation of the prior interim U.S. Attorney. Comey's defense attorneys must be licking their chops.

Symposium Response Part 2: Centering and de-centering race

Guest Blogger

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

Dylan C. Penningroth

Looking at the Symposium overall, I think these posts have drawn out what I hope is a creative tension in the book’s approach to race. On the one hand, the book invites law scholars to move race and race relations toward the center of the curriculum and the profession. But then it asks historians, and especially African American historians, in essence to de-center race relations. There were both conceptual and pragmatic reasons behind this dual approach. Conceptually, I felt that the history of race had too often been conflated with the history of Black people, and that this conflation inadvertently wound up treating African Americans instrumentally—as something more like a window into the soul of America than as people worth studying in themselves. From a purely pragmatic point of view, using local court records practically compelled me to think hard about centering race: the overwhelming majority of the cases involving Black people were between Black people. Obviously, white supremacy produced these skewed proportions, and yet it seemed important to take seriously what Black-Black cases had to say, especially when I saw other kinds of sources saying similar things. It is by now axiomatic that Black people fought for “independence in their working lives,” autonomy for “their families and communities,” and “equal citizenship” in the body politic.[1] But what did autonomy mean to a Black tenant farmer like Nate Shaw (Ned Cobb) who said that his own father treated him “just like slavery”? What did equal citizenship mean to Black women who were treated as second-class citizens in their churches and fraternal orders, the citizenship that mattered most (or at least most immediately) to Black people before the movement?

Symposium Response Part 1: The strange career of civil rights

Guest Blogger

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

Dylan C. Penningroth

Many thanks to Jack Balkin and Balkinization for hosting this symposium. I’m grateful to Carol Rose, Evelyn Atkinson, Ian Ayres, Mark Graber, Mark Tushnet, and Steve Griffin for taking the time to read and provide such probing comments on Before the Movement. It has taken me awhile to post my response, in part because it has been so much fun to absorb and learn from their comments.

The contributors beautifully bring out several of the book’s main themes, and space allows me to touch on only some of their constructive critiques. The first, as Professor Griffin notes, is how Black people used and thought about law from the 1830s to the 1970s, how a subset of nineteenth-century rights and privileges came to be understood as “civil rights,” and how that term, over the next century or so, slowly came to stand for the principles of nondiscrimination and anti-humiliation that animate much of modern civil rights law. If had been more daring and witty, I might have titled the book “The Strange Career of Civil Rights.”[1]

The second theme is the sources I used to tell this story. Of course, I am far from the first historian to go asking big questions of small courts. Since the early 2000s, a number of legal historians have made the trek to the courthouse door, including Laura Edwards, Melvin Ely, Sarah Barringer Gordon, Martha Jones, Anne Twitty, Kimberly Welch and, more recently, Sarah L. H. Gronningsater. Aside from the physical and logistical challenges of researching in under-funded facilities that are not really “archives,”[2] all of us have confronted the analytic and conceptual challenges of taking the legalities latent in local court records and relating them to the “mandarin materials,” as Robert Gordon termed them, of appellate case law, statutes, and treatises.[3] But increasingly, on days when I walked past the inevitable Confederate statue to beg another circuit clerk’s permission to rummage around in the courthouse attic, I felt the presence of a different intellectual tradition than perhaps the ones we had been trained in; that we were actually following in the footsteps of earlier generations of Black historians, who had to negotiate with the gatekeepers of official records in the unfathomably harsher environment of the 1930s and 40s. Only a few of those earlier historians were professional scholars, like Luther Porter Jackson. Mostly they were lay historians—church officers, like A.M.E. Bishop Richard R. Wright,[4] or lawyer-memoirists, like Thomas Calhoun Walker,[5] or keepers of family history, like my great-great-uncle Thomas Holcomb. What they wanted to demonstrate was that, right in the maw of a nation dedicated to white supremacy, “free Negroes” and their descendants had “made a record” of achievement in education, landownership, and trade.[6] And they believed that record entitled them to “the good will and respect of [their] neighbors and fellow citizens,”[7] as Jackson put it—or what activists called “public rights”[8] or “first-class citizenship.”[9] These earlier Black historians’ linking of common-law rights to “classes” of citizenship eventually helped inform my argument about how the idea of civil rights changed. Often stuffed with thumbnail sketches and hopeful statistics about Black churches and property ownership and literacy, these works were more than mere “encyclopedic pep talks” or “storehouses of uplift ideology” in the mold of Booker T. Washington.[10] Whatever else they were, they also hinted at a history of Black legal thought, one that seemed to me to be in dialogue with questions of racial justice but not contained by them. More immediately, those early Black historians seemed to suggest that there were certain continuities across the gulf of the Civil War: that white people more or less took it for granted that Black people could own and trade things.[11] That, at least in the realm of civil rights, the transformation came gradually, raggedly, and perhaps rife with irony.

We might explain this continuity in terms of ideology—specifically, white people’s investment in the belief that law was not (just) an instrument of class power. More frequently, as Professor Graber points out, I look to Derrick Bell’s interest-convergence theory. This was a “triumph of informal property over formal law,” Professor Rose writes, where wide swaths of white southerners—including huge numbers of non-slaveowning whites—enjoyed easy access to cheap, convenient goods and services from enslaved Black people, an enjoyment procured not (just) through “brute compulsion” but through legal marginality and indeterminacy.[12] White southerners benefited precisely from the law’s refusal to speak clearly and consistently about slaves’ property and contracts. (To which I would add that there are uncomfortable resonances with the benefits American citizens enjoy from the work of undocumented immigrants today.)

Balkinization Symposium on Serena Mayeri, Marital Privilege-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Kimberly Mutcherson, The Staying Power of Marriage Inequality

3. Julie C. Suk, Promoting Equality and Marriage

4. Clare Huntington, Understanding the Roots of Today’s Marital Inequality

5. William N. Eskridge Jr., Marital Supremacy, Liberalization & Privilege

6. Douglas NeJaime, From Status to Function

7. Kristin Collins, Marital Privilege and Immigration Law

8. Serena Mayeri, Response to Commentators

Oral Argument as Eulogy

Gerard N. Magliocca

In Gideon v. Wainwright, Justice Harlan concurred that Betts v. Brady should be overruled but complained that Betts "is entitled to a more respectful burial." The same could be said for Humphrey's Executor, either on the interim docket or when Trump v. Slaughter is decided.

That said, I'm not sure whether to envy the attorney who will argue Slaughter. That person will surely lose. But going in knowing that you will lose may provide the freedom to say whatever you want. 

Response to Commentators

Guest Blogger

For the Balkinization symposium on Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025).

Serena Mayeri

I am immensely grateful to each of the symposium participants for taking time to engage so thoughtfully with this book, and for the countless ways their intellectual influence and personal generosity enriched the project over the dozen-plus years of its gestation. I can’t possibly do justice here to each set of comments, much less the authors’ own scholarly oeuvres and impact, so offer just a few reflections on some of the themes their posts raise.

Jawboning Late Night: A Lesson in How Corporate Consolidation Creates Free Speech Problems

Guest Blogger

Daniel Browning

ABC Pulls Kimmel Off the Air

On Wednesday, September 17^th, ABC announced its decision to pull “Jimmy Kimmel Live!” off the air indefinitely following Kimmel’s monologue about Charlie Kirk’s assassination.

Disney’s decision came shortly after FCC chairman Brendan Carr made the following thinly veiled threats against ABC. Carr also called on licensed broadcasters to “push back on” networks and “preempt” content that does not serve local communities. Sure enough, Nexstar, which owns many ABC affiliate stations, announced that it would “preempt ‘Jimmy Kimmel Live!’ for the foreseeable future.” ABC suspended Kimmel shortly thereafter.

Jawboning and the First Amendment

As other commentators have observed, Kimmel’s suspension appears to be a paradigm case of “jawboning”—where the government indirectly censors expression by pressuring some private intermediary to censor the expression directly.

Just last year, in N.R.A. v. Vullo, the Court reaffirmed that government jawboning can violate the First Amendment whenever it coerces a private intermediary to censor speech. In Vullo, a state official offered not to prosecute an insurance underwriter, Lloyd’s, for regulatory infractions in exchange for Lloyd’s’ agreement to sever ties with the N.R.A. The Court held that, by offering the inducement in order to punish the N.R.A.’s speech, Vullo had engaged in unconstitutional coercion.

After Vullo, the constitutionality of government exhortations for private intermediaries to interfere with a third-party’s speech turns on whether the government’s communication is persuasive (constitutional) or coercive (unconstitutional).

Why the Kimmel Case Raises Important First Amendment Issues

Other commentators have called for Kimmel to bring a First Amendment challenge against the government, on the theory that FCC Chair Carr’s threats against broadcasters were unconstitutionally coercive.

In some ways, this does seem to be an easy case. Carr makes vague comments that appear to threaten networks and broadcasters, and ABC suspended Kimmel shortly thereafter. Thus, Kimmel might have an easier time establishing standing than did the various plaintiffs in Murthy v. Missouri. The Court in Murthy held that the various plaintiffs lacked standing, in large part, because they could not show that government pressure caused their injuries. The social media platforms, Justice Barrett reasoned, “had independent incentives to moderate content.”

In other ways, though, the Kimmel case raises to the fore important complexities that the Court has not adequately addressed in its jawboning jurisprudence.

Doctrinally, the coercion/persuasion rule, as developed in Bantam Books and Vullo provides very little guidance to courts in adjudicating jawboning claims. Conceptually, there is a huge gap between government communications that could rightly be labeled “persuasive” and communications that could be called “coercive.”

Consider an example that arose in the Murthy litigation—President Biden’s comment that social media platforms were “killing people” by allowing users to spread misinformation. Persuasion or coercion? I, for one, couldn’t say. The problem here is that there are myriad forms of government pressure that are neither persuasive nor coercive—but are rather somewhere in between.

While Vullo settles the question in clear cases where government pressure can be easily identified as coercion or persuasion, it leaves courts without clear guidance in cases, perhaps like the one here, where government pressure occupies the space between coercion and persuasion.

The much larger, more systemic problem, however, is that the modern corporate law infrastructure makes jawboning both much more effective and much more difficult to challenge in court.

Because traditional media is increasingly owned by a small handful of firms, government jawboning is increasingly likely to prove effective, for two reasons.

First, the government can hold out a regulatory carrot (as relevant in the Kimmel case, approval of an acquisition) in exchange for “voluntarily” censoring expression. For corporate executives, the cost of censorship will be much cheaper than the cost of drawing the government’s ire, especially as the arms race to add subsidiaries creates more nodes at which the government can leverage its regulatory authority.

Second, the consolidation of smaller firms into large mega-firms (like Disney) decreases the cost to the government of targeting disfavored expression. The government only needs to pressure a small handful of firms rather than many.

The corporate landscape that makes jawboning more effective also makes it more challenging for speakers to bring successful First Amendment jawboning claims.

It can often make good business sense for highly consolidated and diversified firms to censor speech even irrespective of government pressure. For example, before deciding to suspend Kimmel, Disney CEO Robert Iger reportedly was hearing from advertisers who feared a conservative firestorm and from Disney employees who reported receiving threats. And because Disney owns an array of subsidiaries, Disney executives had to worry about a Kimmel-related boycott of their theme parks, cruises, merchandise, and other programming. These non-governmental pressures very well could’ve given Disney executives “independent incentives” to suspend Kimmel.

So What Can be Done?

Doctrinally, the  Court in jawboning cases should focus more on whether the government harbored an unconstitutional motive—whether the government intended to censor unfavorable expression—than on whether the government’s communication could be labeled coercive or persuasive. In the alternative, the Court should provide further guidance on how to determine whether the government’s communication with the private intermediary rises to the level of unconstitutional coercion.

More systemically, we should begin to think about corporate consolidation and oligopoly as a free speech problem. As firms become more consolidated and diversified, traditional media, which is crucial for public discourse, becomes more vulnerable to indirect government censorship.

A more durable solution than relying on courts to police government jawboning would involve, first, consumers increasing the costs to firms of capitulating to the government. This bottom-up solution, which would require citizen-consumers to mobilize to protect free speech values, has already proven somewhat effective in the boycott of Target over ending its DEI policies. Indeed, there is some evidence that consumers have already begun to penalize Disney for their capitulation.

Second, taking a more top-down approach, a future Democratic administration should charge the FCC and FTC with considering the free speech implications of corporate consolidation and diversification.

Daniel Browning is a JD Candidate at Yale Law School and a PhD Candidate at Princeton University.  You can reach him by e-mail at Daniel.browning@yale.edu.