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

The Question of Female Personhood

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Meghan Boone 

The question of whether embryos and fetuses are legal “people” is unlikely to be definitively answered anytime soon. While the movement for fetal personhood has steadily gained traction in the last fifty years, there is still a great deal of disagreement concerning the point at which full legal personhood should attach to prenatal life, if ever. What is increasingly certain, however, is that if the national conversation regarding abortion rights centers on fetal personhood, then those who seek to protect the full legal and social equality of women have already ceded too much ground. In plain terms, if the battle is all about fetal personhood, people capable of pregnancy have already lost the war.

To be clear, this is not because advocates for fetal personhood necessarily have a “winning” argument, either legally or morally. But it seems clear that by framing the conversation primarily around the question of fetal personhood, there are a number of consequences that result – each of which is detrimental or even lethal to claims for reproductive autonomy and women’s equality.

The More Things Change . . .

Gerard N. Magliocca

Time to repost this one from 6 years ago:

Themes in the Administration's Executive Actions

David Super

I recently published this column in The Hill that attempts to discern patterns in the Administration's executive actions to date.  In short, I found three.  

First, the majority of Executive Orders are not themselves particularly meaningful.  They are crafted to be resistant to facial challenge.  People pouring over each EO when it comes out looking for violations of law will often be frustrated or forced to reach.  Instead most (not all) executive orders should be seen as declarations of war, as indications of the actions the President wants his underlings to undertake.  And a great many of those are wildly, indefensibly illegal.  But by drawing attention to the EOs themselves, the Administration can maintain a veneer of legality.  If you see an EO that troubles you, dig in to how it is being implemented rather than parsing its words. 

Second, as disturbing as many of the substantive actions are, they are merely incidental to a broader goal of aggrandizing presidential power.  In many instances, the Administration could have done most or even all of what it wanted legally, but it chose to defy the law instead.  In some instances, that may because the core of DOGE nineteen-year-olds did not think to ask for legal opinions.  In many, however, the goal seems to be to establish that the President can defy the law, or justify actions based on wholly ludicrous presidential "findings", and go unscathed.  Thus, these actions are troubling on their own right but even more so when one considers the aggressive and unfounded "findings" they presage.  We got a taste of that in tariff-fest Wednesday evening.  

And third, the quantity and quality of actions defying court orders is vastly greater than has been widely reported.  For anyone waiting to declare a "constitutional crisis" for the Administration to defy binding court orders, that ship sailed a long time ago. 

Abortion Rights as Health Care Rights as Equality Rights

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

B. Jessie Hill

            After Dobbs eradicated liberty as a basis for the abortion right, an obvious and pressing question is whether an alternative framing for that right might find more purchase, either with state courts interpreting their own state constitutions, or with the federal courts. This question is presented with particular urgency in the context of post-Dobbs litigation, which in many instances is geared toward protecting access to abortion in cases where the patient’s health is endangered, in states that ban abortion in nearly all circumstances. 

            Two principal alternative framings for the abortion right, which have long existed alongside the liberty (or privacy) framing, are health care and equality. That is to say, access to abortion may be understood as an aspect of a broader right to access health care, which—as I argue below—has been recognized in at least some circumstances. Or the abortion right may be grounded in sex equality, as an aspect of women’s right to equal dignity and citizenship. Notwithstanding Dobbs’s gratuitous rejection of an equal protection argument for abortion that no party raised or briefed, scholars such as Reva Siegel and Cary Franklin have forcefully shown that this legal basis retains vitality even today. 

Drawing on both framings, I argue here that the right to abortion is best understood as a right to equality in health care, or a right to health care nondiscrimination.

Cthulhu and the Constitution

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Evan D. Bernick

Howard Philips Lovecraft was born in 1892, nineteen years after the enactment of the Comstock Act and six years before the Supreme Court affirmed birthright citizenship as a constitutional guarantee. He dreamed of monsters and brought them to life with language that has not lost its power to petrify. The best-known entity in Lovecraft’s bestiary is Cthulhu, a mountainous “contradiction[] of all matter, force, and cosmic order.” Cthulhu and co. are ancient, unknowable, and unkillable. To borrow from Lovecraft’s The Dunwich Horror, “The Old Ones were, the Old Ones are, and the Old Ones shall be.”

One of the most penetrating engagements with Lovecraft’s work and legacy, Alan Moore’s Providence, imagines Lovecraft as the literary herald of actually existing cosmic horrors. But let’s be real: Lovecraft’s monsters are fictional, and their origins are discreditable. Lovecraft was racist, sexist, and xenophobic and he nurtured obsessive fears of contamination of the nation’s sexual purity—especially through immigration. These prejudices and phobias inspired his monsters and his descriptions of their acolytes.

The Trump Administration is committed to a monstrous constitutional program that is informed by racism, sexism, and xenophobia. One of the major components of that program involves attacks on birthright citizenship. The other involves attacks on reproductive freedom. These attacks have late-nineteenth-century analogs and depend upon late-nineteenth century instruments and ideas. Studying how movements sapped these monstrosities of their power can equip us to defeat them once again.

Enumerating a Post-Dobbs Pathway

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Michael C. Dorf

          For the foreseeable future, constitutional lawyers seeking progressive results from the federal courts will need to practice what I have called “ideological jujitsu—turning opponents’ strengths against them.” Nowhere is that more clear than in seeking to develop arguments that aim to restore rights to reproductive freedom and sex equality. This short essay articulates the benefits and potential pitfalls of one particular jujitsu maneuver: reliance on a sharp distinction recent cases draw between enumerated and unenumerated rights.

          In New York State Rifle & Pistol Assn., Inc. v. Bruen, a 6-3 Supreme Court ruled in favor of challengers to New York’s firearms permitting regime because the state had failed to demonstrate that the challenged law was consistent with the history and tradition of firearms regulation at the Founding or during Reconstruction (or during other ostensibly relevant periods). Literally the very next day, in Dobbs v. Jackson Women’s Health Org., the same six Justices ruled against challengers to Mississippi’s ban on abortions after fifteen weeks’ gestation, on the ground (articulated in the majority opinion that spoke for five Justices) that the challengers had failed to demonstrate a history and tradition protecting a right to abortion at the Founding or during Reconstruction (or during other ostensibly relevant periods).

          To a casual or cynical observer, the juxtaposition of the placement of the burden of persuasion in Bruen and Dobbs may look hypocritical and result-oriented: heads I win; tails you lose. And indeed, that perspective may well be accurate. But it is nonetheless possible to articulate a reason of principle—and not mere ideology—why proponents of gun rights do not bear the burden of persuasion but proponents of reproductive rights do bear such a burden.

The History and Tradition of Criminalization

Guest Blogger

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Mary Ziegler

            In Dobbs, Justice Alito offers a history-and-tradition approach as an important constraint on judicial discretion. The appearance of restraint—or judicial neutrality—helps to explain the rise of arguments predicated on history and tradition. But what is the appeal of these claims to socially conservative movements, who have also seen untapped potential in the kind of approach that Dobbs adopted?

In part, in previous decades, approaches based on history and tradition drew support because of the potential limits of originalism, in its various forms, as a vehicle for movement demands. In the 1980s, for example, abortion opponents sometimes questioned whether they could make a convincing an original-public-meaning case as to why the Constitution protects the fetal person—or requires the criminalization of abortion. A history-and-tradition approach, by contrast, was obviously more flexible, potentially sweeping in evidence from prior to and well after 1868, including, for some, Christian teachings they believed to inform interpretation of the Constitution.

Between 1986 and today, history-and-tradition arguments have taken on new power for conservative movements, even as abortion opponents have channeled considerable resources into an original-public-meaning account of fetal rights. Pointing to the past has justified restrictions that movement leaders and their allies in politics and the judiciary are aware the public does not accept—and has allowed movement leaders to speak through past actors to whom they claim to defer rather owning unpopular views themselves. Finally, relying on history and tradition callows movement leaders to conceal the policy choices they face in critical areas, including: 1) the contemporary design of criminal bans and their exceptions; 2) the interpretation of the Comstock Act; and 3) the current approach to fetal rights and their enforcement.

Why Were Native American Tribes Not "Subject to the Jurisdiction" of the United States?

Gerard N. Magliocca

I want to clear up a common misconception that I see in the birth citizenship debate. For more details on the contents of this post, you can read my 2003 article on "The Cherokee Removal and the Fourteenth Amendment" and my article on birthright citizenship itself.

The best way to explain my point is through the following erroneous syllogism:

1. The Tribes were excluded from birth citizenship by the "subject to the jurisdiction" language. (True)

2. The Tribes were regulated by federal law in various ways in 1868. (True)

3. Therefore, "subject to the jurisdiction" must mean something more than "subject to the law." (False)

Why is the conclusion wrong? The answer is that the Fourteenth Amendment's Framers thought that the Tribes were subject to federal law only insofar as that law was consistent with tribal treaties. A treaty is often implemented by enabling legislation. This does not make each treaty signatory "subject to the law or jurisdiction" of the others beyond what the treaty might provide. 

Why do people find this confusing? First, the practice of making treaties with the Tribes ended in 1871. This change obscures the fact that things were quite different in 1866. Second, a review of federal tribal regulation in the ante-bellum era would surely turn up cases where reasonable people would disagree about whether a statute was truly consistent with a treaty. But this is not an "Aha!" moment. The final issue is that people overlook or are unaware of the connections between abolitionism and the Tribes that was part of the intellectual toolkit for Republicans in 1868. 

Why I Signed the Harvard Law Professors Letter

Mark Tushnet

The letter to our students from a large number of professors at Harvard Law School has attracted some attention, both positive and (on the whole rather mildly) negative. Those who know of the letter might find the following account of why I signed the letter helpful/instructive/whatever. (I’m emeritus but still think of Harvard students as “my” students.)

For me the key point about the letter is that the signatories expressly and prominently said that we were speaking (a) in our individual and personal capacities (b) to our students. I spent twenty-five years as a teacher (and several years as an administrator) at Georgetown University Law Center, which in these settings I’m careful to call an institution affiliated with the Society of Jesus. One part of the university’s mission, and therefore that of the Law Center, was “cura personalis,” care for the whole person. To me that meant that as a faculty member I had some responsibility for assisting students in their efforts at moral formation. (It had other implications for the institution but here I deal only with what I took to be its implications for faculty members.) And an important component of my performance of that responsibility was personal interaction with students—how I spoke with them both in and outside of class, for example. (The standing-on-one-leg version is something like, “Don’t be a jerk,” either in class our outside of it.)

A more general statement, albeit imperfect, is that we assist in moral formation by modeling what we believe to be how a morally responsible lawyer should behave. The statement is imperfect because not everything we do involves that kind of modeling—most aspects of our private lives, for example, though for me at least some aspects of our private lives are appropriately taken to be relevant to the moral-formation task—even though observers might think that we are engaged in such modeling when we aren’t (or shouldn’t be taken to be so doing). It’s imperfect as well because sometimes even when we are “modeling,” we’re not doing it well—or even are doing it badly (that is, we are in effect saying to our students, “Here’s how a morally responsible lawyer should behave,” when in fact it’s not at all how such lawyer should behave).

I carried that sense of responsibility for moral formation (another imperfect shorthand) with me when I moved to Harvard. As an institution Harvard Law School didn’t have the “cura personalis” mission that Georgetown did. But, it seemed (and seems) to me that as individual teachers faculty members could permissibly choose to take as part of their/our mission as teachers assisting in moral formation. (Though they/we didn’t have to, and I have no quarrels with faculty members who didn’t/don’t—certainly at institutions whose missions don’t include moral formation and even, to some extent, at institutions that do include such a mission.)

Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.

The letter—again, to our students in our individual capacities—said that this was such a moment, and signing it was my way of attempting to do something about our students’ moral formation.

The Tenth Demand?

David Pozen

The latest drama at Columbia—involving interim President Katrina Armstrong’s “resignation”—has broad implications for the academy and American democracy. Once unpacked, this episode throws into sharp relief the issue of whether universities now operate at the pleasure of the White House.

* * *

History and Tradition’s Equality Problem

Guest Blogger

Balkinization Symposium on Legal Pathways Beyond Dobbs

JB

This week Balkinization we will be hosting a symposium in conjunction with UCLA Law’s Center on Reproductive Health, Law, and Policy, on Legal Pathways Beyond Dobbs.  

We'll be publishing essays from the March 2025 convening hosted by UCLA School of Law in partnership with Yale Law School and Temple University Beasley School of Law.

The participants include Evan Bernick (Northern Illinois), Meghan Boone (Wake Forest), Mike Dorf (Cornell), Cary Franklin (UCLA), Jessie Hill (Case Western), Kimberly Mutcherson (Rutgers-Camden), Neil Siegel (Duke), Doug NeJaime (Yale), Laura Portuondo (Houston), and Mary Ziegler (U.C. Davis).

The Supreme Court is Becoming the ER

Gerard N. Magliocca

By my count, there are now at least four significant emergency motions before the Court. They include: (1) birth citizenship; (2) the Alien Enemies Act; (3) DEI grants; and (4) rehiring probationary employees. More are probably on the way.

The Court should consider using special masters to take a first look at some of these sorts of emergency applications and make a recommendation. I am skeptical that the Court can give thoughtful consideration to so many complicated motions on an expedited basis. Granted, they do not need to resolve any of these four issues immediately, but in other instances they may need to act quickly. 

Charles Reich to Justice Black (1955): Is Paul, Weiss the Law Firm for Me?

Guest Blogger

John Q. Barrett

Charles Reich graduated from Yale Law School in 1952. He was one of its top students. In his third year, he was editor-in-chief of the Yale Law Journal.

Following law school, Reich moved home to New York City and, for a year, he was an associate at Cravath, Swaine & Moore.

Then Reich moved south. For the next year, 1953-1954, he was one of Justice Hugo L. Black’s law clerks at the U.S. Supreme Court. The year was momentous—the Court decided, that May, Brown v. Board of Education. And Reich developed a very close relationship with Justice Black, including because Reich and his co-clerk lived with the recently-widowed justice at his home in Alexandria, Virginia.

Following the clerkship, Reich stayed in Washington, D.C. He became an associate at the Wilmer & Broun law firm. It was Cravath’s regular D.C. corresponding firm, a forebear of Wilmer, Cutler & Pickering and today’s WilmerHale.

After a few months, Reich knew that Wilmer was not the place for him. He explored teaching options, but Harvard Law School did not have an opening for him and, for reasons of university politics, he was not interested to join the Yale law faculty. (That later changed; Reich became a Yale law professor in 1960.) Reich interviewed with and received job offers from two prominent, if not “big,” law firms. (In those days, the U.S. had leading law firms, but none remotely resembled today’s “Big Law.”)

By mid-January 1955, Reich had to decide which law firm offer to accept. He was unsure. He wanted Justice Black’s advice. But Black was vacationing in Florida and Reich was reluctant to pay the cost of telephoning him long-distance.

So on Monday evening, January 17, 1955, Reich wrote by hand, on Wilmer stationery, a four-page letter to Justice Black. This letter seems to be, at least in part, Reich focusing his own thinking about his law firm options. The first two-plus pages of the letter are about his various considerations:

The Appellate Void

Andrew Coan

What would it look like for the executive branch to defy a court order? Typically, we picture a dramatic showdown between the President and the Supreme Court, the whole country watching with bated breath. But there's another, less dramatic scenario, which has been largely overlooked in recent commentary.

Suppose the administration simply defies a district court order and declines to appeal. The plaintiffs, having already won, would have no standing to file an appeal of their own. Nor could they petition the Court of Appeals or the Supreme Court for a writ of mandamus.

The Courts of Appeals have no jurisdiction to grant mandamus against executive officials under these circumstances. As Marbury v. Madison established, such actions constitute original, not appellate, proceedings and can only be brought before a court with original jurisdiction. The All Writs Act permits writs only "in aid of jurisdiction," requiring an existing appellate case. Without an appeal, neither the Supreme Court nor the Court of Appeals would possess a clear procedural vehicle to intervene.

Contempt sanctions might solve this problem. But the best recent scholarship suggests that they are a fragile remedy even under normal circumstances. In this scenario, it seems quite possible they would fail completely. Enforcement depends on cooperation from the executive branch. And without an appeal, higher courts are likely powerless. 

Instead of a cataclysmic clash with the Supreme Court, we might see the President casually brushing aside a single, obscure district judge, like a pesky gnat.

As far as I can tell, this scenario would be unprecedented in modern times, so there may well be wrinkles I have overlooked. Historically, executive officials have had good success appealing contempt sanctions and other compliance issues. Probably, that's the route the Trump administration will take, as it has already done in several cases. But a President intent on defying the courts might see tactical advantage in confronting a single district judge rather than the Supreme Court. 

This approach offers an opportunity to test the limits of judicial authority and normalize non-compliance with the courts in a lower visibility setting. It could be especially attractive in a case the administration expects to lose on appeal--or as a warning shot in response to a Supreme Court defeat. 

Think of this strategy as a kind of reverse Marbury, establishing the impotence of the judiciary, while leaving the Court no obvious avenue to respond.

Polls show that large majorities of the public and both major parties want the President to comply with court orders. Would defying a lone district judge carry the same political cost as defying the Supreme Court? Could creative contempt sanctions ultimately persuade the administration to appeal? Or might higher courts craft novel procedural theories for intervening in this extraordinary situation?

There is no way to know. But this scenario deserves more attention than it has received.

Nino's Paradox

JB

I have posted a draft of my latest article, Nino's Paradox, on SSRN. Here is the abstract:

This essay explains how lawyers and judges manipulate the distinction between changes in facts and changes in values when they interpret the Constitution. This rhetorical manipulation allows them to portray changes in social values merely as changes in facts.

Manipulating the distinction between facts and values serves several important ideological functions in American constitutional law. First, it helps make changes in constitutional values between the past and the present disappear and helps preserve the belief that we still apply the Framers’ values today. Second, it downplays or disguises the fact that changes in constitutional interpretation are often the result of social conflicts and struggles over social values outside of the Article V amendment process. Third, it helps preserve the appearance (if not the reality) of judicial neutrality in current constitutional conflicts, because judges are required to apply the same law to changing facts. Fourth, it helps preserve the appearance (if not the reality) that in the face of constant social and technological change judges can just apply the law without making any new and controversial value choices.

Because technology, social practices, and social values co-evolve, it is often not possible to maintain a firm distinction between changes in facts and changes in values. Lawyers and judges often describe constitutional purposes and rights at different levels of generality to disguise this fact and to make the Constitution better cohere with contemporary values—and with their own values. In addition, applying the constitutional text in new technological circumstances may upset the balance of competing normative assumptions that produced the constitutional text in the first place. As a result, technological change often alters the balance of constitutional values the law protects and even the nature of the rights and powers the Constitution guarantees. In sum, because technology, social practices, and social values co-evolve, we are all living constitutionalists now, whether we are willing to recognize it or not.

The Mystery of Neil Gorsuch

Andrew Koppelman

Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)

Guest Blogger

Genevieve Lakier

At this point in the Trump presidency, it is quite clear that a central way in which the administration wields power is by threatening those who speak and associate in ways that it dislikes with economic or legal harm if they do not stop. These threats and promises of payback are obviously intended to ensure compliance with the President’s ideological agenda; or, at least, to ensure that those who oppose that agenda shut up. They pose, as such, a serious threat to the First Amendment. After all, the core idea underlying the modern First Amendment is that the government may not as Justice Jackson put it in West Virginia v. Barnette, “coerce uniformity of sentiment in support of [an] end [it believes to be] essential”; that in this democratic state, “[a]uthority is… to be controlled by public opinion, not public opinion by authority.” At the same time, however, courts—particularly in recent decades—have recognized a rather expansive right to “freedom of government speech” (to use Judge Posner’s useful phrase). They have recognized that government officials have broad freedom not only to express their point of view on contested matters of public concern but to criticize private citizens when they express opposing views and to cajole them into better behavior. The central question that courts must answer then, when deciding when and which of the administration’s threats violate the First Amendment, is whether those threats work to coerce silence, or merely speak.

Birthright Citizenship and the Rosenbergs

Gerard N. Magliocca

Ethel and Julius Rosenberg had two children, both born in New York City. When their children Michael and Robert were less than ten, the Rosenbergs were convicted of and executed for espionage on behalf of the Soviet Union.

Under the "allegiance" theory of birth citizenship, it seems clear that Michael and Robert (who are both still living) are not citizens of the United States. Their parents gave, in the clearest formal sense possible, their allegiance to a foreign power. And they did so in a way far worse than any illegal alien. 

Yet David and Robert Rosenberg are American citizens, and nobody to my knowledge has questioned that. Maybe that will change. If not, I'd like to know why the "allegiance" principle does not cover them.    

How to combat social media platform power

JB

Following Donald Trump's election in 2024, the owners of the major tech platforms bent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured over 250 million dollars into Trump's 2024 campaign and used his platform to promote MAGA causes. Trump, in turn, let Musk loose to wreak havoc on the federal government.

What, if anything, should citizens do about this new form of collusion between some of the most powerful private actors on the planet and the U.S. Government?

Comparative Reflections on Mahmoud Khalil's Case

Mark Tushnet

The statute invoked in Mahmoud Khalil’s case brings to mind cases from other jurisdictions. That statute provides (in the part relevant here) that deportation is permissible if “the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest.” Is such a determination conclusive? Or may it be reviewed under a presumably quite generous standard of reasonableness (that is, was it reasonable for the Secretary of State to conclude that Khalil’s presence would compromise a compelling foreign policy interest, with “compellingness” perhaps subject to a similar generous reasonableness standard)? 

During World War II the British government detained Robert Liversidge under a statute authorizing detention if the Home Secretary had “reasonable cause” to believe that a person had “hostile associations.” The House of Lords held that the statute required only that the Home Secretary subjectively believe that there was reasonable cause (Liversidge v. Anderson). A famous dissenting opinion by Lord Atkins would have held that the Home Secretary’s belief had to be objectively reasonable. I believe that the consensus among British scholars who have discussed the case is that Lord Atkins’s position was correct. 

In 1987 Singapore detained a number of activists in connection with what’s known as the Marxist conspiracy. The applicable statute provided for detention “if the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ..., it is necessary to do so.” Relying in part on Lord Atkin’s dissent in Liversidge, the Court of Appeal held that under the statute it was insufficient that the President was subjectively satisfied, etc.; rather, an “objective” test (something like “would a reasonable person conclude that detention is necessary to prevent he detained person from acting in a manner prejudicial, etc.”) had to be applied (Chng Suan Tze v. Minister of Home Affairs). 

That wasn’t the end of the story, though. The Court of Appeal decision was announced on December 8. By the end of January Singapore’s Constitution and Internal Security Act had been amended to make it clear that detention could indeed be based upon the President’s subjective satisfaction. I believe that the consensus among scholars who have discussed the case is that the episode taken as a whole doesn’t reflect well on Singapore’s adherence to the rule of law. 

Is the lesson from these cases that the US courts will probably find Khalil’s deportation legally supportable—and that the judgment of history is likely to be that such a decision was a mistake? (I once wrote about the law of emergency powers in the United States that we did indeed learn from our mistakes by not making the same mistakes again—instead we made new mistakes.)