Return to Garza: How ORR is acting without statutory authority (and why DOJ's arguments haven't gotten any better since last year)

Marty Lederman

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Posted 2:50 PM by Marty Lederman [link]

Rediscovering Corfield v. Coryell

Gerard N. Magliocca

I am pleased to share the draft of my new paper, which summarizes the new information about Corfield that emerged from my discovery of Justice Washington's rough notes on the decision.
Posted 2:31 PM by Gerard N. Magliocca [link] (13) comments

The First Amendment in the Second Gilded Age

JB

I have posted my latest essay, The First Amendment in the Second Gilded Age, on SSRN. It is based on the 2018 James McCormick Mitchell Lecture I gave at Buffalo Law School in April of 2018. 

Here is the abstract:

How do we pay for the digital public sphere? In the Second Gilded Age, the answer is primarily through digital surveillance and through finding ever new ways to make money out of personal data. Digital capitalism in the Second Gilded Age features an implicit bargain: a seemingly unlimited freedom to speak in exchange for the right to surveil and manipulate end users.

To protect freedom of speech in the Second Gilded Age we must distinguish the values of free speech from the judicially created doctrines of the First Amendment. That is because the practical freedom to speak online depends on a privately owned and operated infrastructure of digital communication to which the First Amendment does not apply. As a result, the protection of digital free expression has increasingly begun to detach from the judicial doctrines of the First Amendment. This makes the First Amendment increasingly irrelevant to protecting digital speech. Indeed, in the Second Gilded Age, the judicially created doctrines of First Amendment law become most important as potential obstacles to reform. They create constitutional difficulties for attempts to regulate private infrastructure owners in order to protect free speech values and personal privacy.

Protecting freedom of speech in the Second Gilded Age requires us to focus on the political economy of digital speech: how we pay for the digital public sphere, the dangers the digital political economy creates for end users, and the kinds of reforms that would best protect their interests in speech and privacy.

This essay uses the Facebook/Cambridge Analytica scandal of March 2018 to explain how the conditions that make free speech possible have changed from the twentieth to the twenty-first centuries. That controversy is a characteristic scandal of the Second Gilded Age because it centers on how digital infrastructure companies make their money and how they affect the public sphere in the process. The scandal also highlights a central problem for freedom of speech in the Second Gilded Age: Digital privacy undergirds our freedom of expression, but the way we pay for freedom of expression perpetually threatens our digital privacy and subjects us to dangers of manipulation and overreaching.

The great irony is that an era that promised unbounded opportunities for freedom of expression is also an era of increasing digital control and surveillance. The same technological advances allow both results. The essay concludes by briefly introducing a reform proposal advocated in my previous work: that we should consider digital media companies as information fiduciaries who have duties of care, confidentiality, and loyalty toward their end users.
Posted 11:05 AM by JB [link]

A Proposed Standard for the Nominee and for the Senate

Gerard N. Magliocca

A pivotal question that will be asked after Thursday's Senate Judiciary Committee is the standard that should govern Judge Kavanaugh and the senators who will vote on his confirmation. For example, who has the burden of proof? Or what standard of proof should be applied to the allegations?

I would like to suggest a standard that draws on a precedent. The only Supreme Court Justice to resign from office due to a scandal was Abe Fortas. In his resignation letter to Chief Justice Earl Warren, Justice Fortas stated that he was leaving "in order that the Court may not continue to be subjected to extraneous stress which may adversely affect the performance of its important functions." Toward the end of his letter he summarized his position:

There has been no wrongdoing on my part. There has been no default in the performance of my judicial duties in accordance with the high standards of the office I hold. So far as I am concerned, the welfare and maximum effectiveness of the Court to perform its critical role in our system of government are factors that are paramount to all others. It is this consideration that prompts my resignation which, I hope, by terminating the public controversy, will permit the Court to proceed with its work without the harassment of debate concerning one of its members.

I think the question for Judge Kavanaugh and the Senate once the investigation is complete is whether his confirmation will subject the the Supreme Court "to extraneous stress which may adversely affect the performance of its important functions." I do not yet know the answer.
Posted 2:23 PM by Gerard N. Magliocca [link] (96) comments

Kavanaugh and Underage Drinking

Mark Graber

Posted 10:18 AM by Mark Graber [link]

The Senate Has Subpoena Power

Gerard N. Magliocca

I am confused about the discussion surrounding the process for assessing the sexual assault allegation against Judge Kavanaugh. The issue is being framed as whether Dr. Blasley will accept the Senate Judiciary Committee's invitation to testify on Monday, as if they are throwing a birthday party. The Committee can compel witnesses to appear, subject to contempt sanctions. If the Committee is actually interested in getting to the bottom of this, then subpoenas should go out to Dr. Blasley, Judge Kavanaugh, and any other relevant witnesses.

But I am not convinced that the Senate wants to know. Senate Republicans certainly don't want to know. Senate Democrats, given the way Senator Feinstein handled the accusation, ditto.
Posted 1:45 PM by Gerard N. Magliocca [link] (145) comments

The Search for an Egalitarian First Amendment

David Pozen

Over the past decade, the Roberts Court has handed down a series of decisions that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a “new Lochner.” This introduction to the Columbia Law Review’s symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments. Why has First Amendment law become such a prominent site for struggles over socioeconomic inequality? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today?

After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century “progressive” model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of “informational capitalism” and the “information state.” First Amendment Lochernism may reflect contemporary judicial politics, but it has deep roots.

To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories of free speech. Yet on account of their depoliticization and abstraction, among other factors, the canonical theories prove indeterminate when confronted by these anxieties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, enables the creative elaboration of a few basic motifs, concerning the scope and severity of judicial enforcement, the identification and reconciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary.

Posted 1:59 PM by David Pozen [link]

Interpretive Pluralism and Ipse Dixit Judgments

Guest Blogger

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Posted 9:19 AM by Guest Blogger [link]

Justice Kennedy's Retirement Decision

Gerard N. Magliocca

I want to raise one point in light of the new allegation against Judge Kavanaugh. Justice Kennedy has already retired. He could have chosen to make his retirement contingent on the confirmation of his successor, as other Justices have. Since he did not, the Court again faces the prospect of an extended period with only 8 Justices, depending on the outcome of the midterm elections. Whether that is good or bad depends on your point of view, I suppose.
Posted 7:21 PM by Gerard N. Magliocca [link] (133) comments

Our Civic Religion

Gerard N. Magliocca

In this age of polarization (exemplified by Judge Kavanaugh's confirmation hearings) is there any constitutional issue that could unite the NAACP Legal Defense Fund, the ACLU, the Chamber of Commerce, the Pacific Legal Foundation, Judicial Watch, the Brennan Center, and the Constitutional Accountability Center (among others)?

The answer is yes. These groups have all filed amicus briefs asking the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment. Timbs v. Indiana presents that issue in the next Term in the context of aggressive state and local civil forfeitures of property involved in crimes. This forfeiture power is subject to (and regularly produces) rampant abuse but is largely insulated from the scrutiny of the federal courts. I certainly think that the Excessive Fines Clause should be incorporated and I think there is a good chance that a broad coalition on the Court will agree.

There is another point lurking being the widespread support for incorporation in Timbs. The Bill of Rights remains a powerful unifying force in America. Despite our disagreements about what those provisions mean, almost everyone attempts to ground their constitutional arguments in what the Bill of Rights contains or omits.
Posted 9:52 PM by Gerard N. Magliocca [link] (100) comments

Crisis in the Archives

David Pozen

Posted 1:17 PM by David Pozen [link]

Of "Magic Bullets" and a Constitutional Convention

Mark Tushnet

Posted 1:43 AM by Mark Tushnet [link]

Abandon all hope: Why I persist

Sandy Levinson

David Super joins most of my family, friends, and colleagues in denouncing the idea of a new constitutional convention.  I persist, and in fact more strongly than ever, in believing that a new convention is a vital necessity.  I won't rehearse all of the arguments that I've made over the years, but I do have a few observations about David's posting.

First, I think it's fair to say that we agree that the 1787 Constitution was (indefensibly?) undemocratic in terms of the structures it established, the Senate being the most obvious example, but Article V probably being most telling, when all is said and done.  The fact that it serves to make constitutional amendment, especially about anything truly controversial, basically impossible means not only that we continue to be trapped in what I have sometimes called the "iron cage" of a radically defective Constitution, but also that we as a polity have seemingly lost any capacity to engage in serious "reflection and choice" (see Federalist 1) about how we are to be governed.

As I read David's posting, he is saying that political progressives should renounce the very idea of an "Article V Convention" for a variety of reasons, some of them very good.  When Larry Lessig and I co-taught a seminar at Harvard about four years ago on what such a convention might look like, I concluded that the Framers purposely constructed in Article V the equivalent of a Pandora's box, precisely because Article V gives not a clue as to how such a convention would actually proceed.  E.g., who exactly selects the delegates; how many would there be; what voting rules would be adopted; what, if any limits, are there with regard to the issues that a convention might consider.  (David, like most opponents, offers a parade of horribles by which a convention would in essence repeal the First Amendment.  Both Larry and I are considerably more sanguine, because the very supermajoritarian of the ratification process assures, as a practical matter, that few if any truly radical measures, including repeal of the Bill of Rights, would actually be ratified.  But the fear of a "runaway convention" has a great deal of purchase on people who should really know better, unless they are even more despondent about their fellow citizens than I am and believe that Donald Trump has the support not only of less than 2/5 of the American public, but in fact truly represents the overwhelming number of contemporary Americans.  There is literally no reason to believe this.)  A basic problem of the contemporary Left is that it has fundamentally lost any faith in what used to be called "the people."  Thus the attraction to technocrats (as Obama turned out to be in spite of a quite different campaign in 2008, which led me to support him over Hillary Clinton).

David's advice is to win elections and create a critical mass in favor of what might be called "ordinary amendment," i.e. proposed by 2/3 of each house of Congress.  (He also makes the altogether correct point that Citizens United could be revised with the replacement of one of the Republican conservatives by a moderate Democrat.)  But if one believes, as I do, that the House is fatally affected by the fact that everyone is elected in single-member districts (with, most of the time, a first-past-the-post electoral process), then, as a matter of brute fact, that can be changed only by a constitutional convention for the simple reason that it is literally inconceivable that members of the House, who benefit from the status quo, would vote to repeal the 1842 Act requiring single-member districts.  (The paradox, of course, is that as a matter of legal fact, a constitutional amendment is not in the least required; it is simply that Congress will never agree to pass the required legislation.)  If, as I personally wish were the case, we were like many American states (and foreign countries, in including some possibility for direct democracy via initiative and referendum, then there would in fact be a good alternative.  But, as Madison proudly proclaimed in Federalist 63, the Constitution was designed to put "the people" into a permanent coma, capable of acting only through "representatives."

As someone who currently believes that the single worst feature of our radically defective Constitution is the lack of any no-confidence process to fire a President who has (justifiably) lost public confidence, I presume that a constitutional amendment would be necessary to supplement the obviously inefficacious Impeachment Clause and 25th Amendment.  (As I've argued previously, the worst thing about the Impeachment Clause is that it's basically been captured by lawyers who seem interested only in arcane disputes about what counts as a "high crime and misdemeanor" as against a far more necessary discussion of the "fitness" of someone to have the immense power given the President.  It is true that Congress could propose such an amendment, but one of the awful truths is that no one in the broad political elite, other than right-wing Republicans, is willing even to broach the reality that we have a defective Constitution.

There is increasing (and correct) agreement that life tenure for Supreme Court justices is an idea whose time should have gone.  Ben Sasse gave a truly fine speech at the Kavanaugh hearings daring Democrats to support the end of life tenure.  To their shame, none of the Democrats responded to his challenge.  I'm in the minority of legal academics who believe that life tenure could in fact be modified with a statute authorizing new appointments once a justice has served 18 years, with the nine member Court to consist of the nine-most-recently-appointed members, while the displaced judge remains a member of the Court, who can sit if one of the nine has to recuse him or herself and can "visit" so-called "inferior" courts, which a number of retired justices have done.

We should learn to walk and chew gum at the same time.  That is, it is absolutely essential that we do whatever we can to smash the GOP coalition in the House and Senate.  Whatever doubts one might have about Democratic candidates pales in light of the collaboration of the GOP with a monumentally unfit and dangerous president.  But we are absolutely kidding ourselves if we think that such a victory would in fact enable the passage (and signing by either Trump or Pence) of progressive legislation.  I have told many people that if Hillary had won, most of us would be just as depressed today, though for slightly different reasons, because "we" would be looking forward to an electoral bloodbath in November, with Republican victories, and then an almost certain Republican victory in 2020 by a more politically competent Trumpista.  

Progressies, including my friends in the American Constitution Society, are making a big mistake in refusing even to address the possibility that the Constitution is radically defective.  If one doesn't believe that, then of course one ought to agree with David.  If it ain't broke, then by definition it doesn't need fixing.  But what if it is broken and constitutes its own danger to our collective future?

I hope that David will offer his own further reflections, either as a comment or in an independent posting.


Posted 10:27 PM by Sandy Levinson [link] (36) comments

The Paradox of Liberal Fascination with an Article V Convention

David Super

Posted 4:48 PM by David Super [link]