Friday, March 01, 2024

Ida B. Wells: A Plea for Law and Society Canonization

Tom Ginsburg

The Law and Society movement, as one of its major figures has put it, is “the scholarly enterprise that explains or describes legal phenomena in social terms.” Intellectual histories of the movement, which formed in the 1960s, typically begin with the Legal Realists of the 1920s and 1930s, and their argument that the content of the law was less determinate than had been assumed by legal formalists. The realists in turn reached back to Oliver Wendell Holmes and his pragmatist critique of formalism. If law was nothing more than a prediction of what the courts would do, as Holmes famously put it, and if those courts were influenced by extra-legal factors, then it became important to understand how societal factors impacted law in a systematic way. (The deeper intellectual origins of this approach go back to Henry Sumner Maine’s Ancient Law of 1861, and Montesquieu before him.)   

Though famous for his call for empiricism, Holmes was not an empirical scholar himself, and so when we look for early studies that deploy the empirical approach, we see very few. It is only with the consolidation of social science disciplines in the first decades of the 20th century that we really see systematic exploration begin. The famous Brandeis brief appears around that time, in such cases as Muller v. Oregon (1908). 

 I want to make the case for Ida B. Wells, who died in Chicago 93 years ago this month, as a founding intellectual mother of this approach. Wells, famous as journalist and activist who battled sexism and racism, did more than any other individual to expose and investigate the practice of lynching in the United States. This work began with her newspaper, The Free Speech, which was destroyed by a mob in 1892 and led her to flee to Chicago. Here she continued her work and career, becoming a national figure and participating in the formation of the National Afro-American Council in 1898. The Anti-Lynching Bureau of this body, which she chaired for a time, undertook the systematic documentation of lynching. 

The key essay for my purpose is her 1900 speech, Lynch Law in America, which embodies many of the qualities that are later consolidated in the Law and Society approach. Wells begins by identifying mob justice as an “unwritten law” that bypasses the formal legal system. She traces the history of the practice as originating on the frontier, and refers to Judge Lynch, who is thought by some to have given the practice its name in summary trials of loyalists in the Revolutionary War. She then goes on to explain how the practice consolidated in the Jim Crow South. Wells’ short essay includes statistics, documenting the continuity of the practice over time, and taking 1892 as the year for focus. She identifies the number of lynchings by state, documenting the spread of the practice outside the South. She documents the accusation that prompted the lynching, with allegations of sexual assault and murder being the most common categories. There are some statistics by race—roughly 2/3 were Black. 

Wells' Lynch Law is an early example of a “gap study,” the systematic exploration of the deep division between the law on the books and the law in action. Critically, Wells does not stop with a demonstration of evidence. She goes on to make a normative argument for the application of the law: all that Black people want, she says “is justice–a fair and impartial trial in the courts of the country.” In the normative part of her argument, she documents the reparations paid to foreign governments for the victims of lynchings, which was required under international law. Appealing to self-interest and national pride, hers is a systematic call for reform. 

In this short work, we see all the hallmarks of later Law and Society scholarship. First, it is focused quite directly on the law in action, suggesting that the true functional law is Lynch’s rather than that of the United States. As Susan Silbey put it, “law and society scholars often locate themselves at the margins of traditional legal scholarship, looking at what law does rather than what law ought to do.” Second, it embodies Philip Selznick’s ideal of utilizing the tools of social science for normative ends. Selznick’s commitments were to a bounded positivism, in which social science was not value free. Values and ideals were both subject to inquiry but also informed by natural law ideas. Wells was not motivated to her inquiry for the sake of pure knowledge. Instead, positive social scientific data was used to make an argument in service of justice. 

In their teaching work, The Canon of American Legal Thought, David Kennedy and William Fisher provide a history of American legal reasoning, beginning, appropriately, with Holmes’ 1897 essay “The Path of the Law.” The contributions of the Law and Society movement begin with Stewart Macaulay’s 1963 essay “On-contractual relations in business: a preliminary study and move on to Marc Galanter’s 1974 “Why the 'haves' come out ahead : speculations on the limits of legal change.” The first essay points out that the law does not much matter to Wisconsin businessmen; the second provides a schematic account of why law so often fails in its aspiration and serves the interests of the powerful. (The only women in the collection are Catherine MacKinnon and Kimberle Crenshaw.) 

Surely when it comes to marshalling data about gaps between law in action and law on the books, gathering evidence in the service of justice, we ought to start our teaching with Wells as the forerunner of the Law and Society movement.


Anticipating a New Senate Republican Leadership

David Super

     For anyone who follows Congress, the departure of the longest-serving Senate party leader is a momentous occasion.  It merits comment both on the significance of his leadership and what is likely to come after it. 

     Senator McConnell’s career has been marked by taking advantage of virtually every opportunity within his reach.  As an obscure state judge, he won the Republican nomination to run against seemingly popular Senator Walter Huddleston because nobody else wanted it.  McConnell noticed, however, that Huddleston had been neglecting constituent services and had stopped traveling outside of the urban parts of the state.  McConnell’s win was a shocking upset in a state that was, at the time, solidly Democratic (and whose Republican Party had been quite moderate).  Since then, Senator McConnell has shown remarkable skills in spotting and exploiting political opportunities. 

     Representing an impoverished state on the Senate Agriculture Committee, engaging with the Food Stamp Program would have been a logical move:  many extremely conservative senators from such states have made an exception for food stamps (now SNAP).  But he did not care for the Food Stamp Program and did not think supporting it would help the hard-line conservative brand he was trying to build.  He therefore found an alternative in making a name for himself as a supporter of school meal programs.  This avoided the ire directed at senators who ignore their constituents’ hunger while not forcing him to tangle with other conservatives. 

     He outmaneuvered self-congratulatory Democrats on numerous occasions.  He deftly used threats to eliminate the filibuster for judicial nominees to push through a collection of extreme George W. Bush picks without actually having to terminate the filibuster.  That left him free to tie up numerous Barack Obama nominees, which would not have been possible had Democrats called his bluff a few years earlier. 

     And he outmaneuvered his own less-diligent Republican colleagues.  Few have commented on how he centralized the vetting of Republican nominees in his office.  When Democratic presidents selected nominees for Republican seats on multi-headed agencies, they soon learned that negotiating names with anyone but Senator McConnell all but ensured that the nominee – and any Democratic choices for the same panel – would never come up for a vote.  No longer could Democrats find a moderate Republican donor from the home state of the top Republican on the relevant committee.  Instead, the nominees would be intensely partisan and reliably conservative, highly resistant to cooptation by the career staff or other board members of the agency. 

     Senator McConnell also had the judgment that so many of his colleagues lacked about when a seeming short-term opportunity was worth seizing and when it would be a long-term liability.  He recognized that federal government shutdowns depend heavily on careful messaging.  Having seen his party repeatedly pummeled in shutdowns under Bill Clinton due to undisciplined messaging by Speaker Newt Gingrich and other House Republicans, he became a determined foe of shutdowns. 

     He also concluded that blocking broad relief during the coronavirus pandemic would unsustainable for Republicans in an election year and sought to negotiate the best deal he could.  Trading the Republicans’ dream corporate welfare package for the Democrats’ dream temporary unemployment compensation expansion surely won him enormous credit with GOP donors; had he tried to hold out, his party would have suffered serious damage and, in the end, he would have had to have negotiate a package from weakness. 

     More generally, he stayed sufficiently focused on the big picture to reject short-term expedients with big long-term costs.  He would freely, even enthusiastically, tell Democratic senators “no”, but he would not tell them lies.  (He also was zealous in his punishment of those that lied or broke promises to him.) 

     On the other hand, he correctly determined that neither he nor his party would endure serious long-term damage for blockading Merrick Garland’s nomination to the seat vacated by Justice Scalia’s death.  He also concluded that the only people paying enough attention to notice Republicans’ hypocrisy in filling Justice Ginsburg’s seat on the eve of an election were self-identified moderates whose feigned commitment to process values paled next to their determination to “both sides” every issue.  He similarly perceived that Republicans cared much more about judicial nominations than Democrats so that he could force through record numbers of Trump nominees to lower courts without provoking Democrats to bring the Senate to a grinding halt – and then make exactly that kind of threat to slow confirmation of Biden nominees. 

     For most of his political career, his motto might have been “nothing personal”:  he maneuvered as necessary to maximize the power of the Senate Republican Conference without becoming personally invested in this or that particular issue.  In the past few years, however, his detachment began to crack.  He took the January 6 assault on the Capitol very personally.  Senator McConnell is not nearly as athletic as some of his Republican colleagues and would have been in grave peril had the mob gotten close to him.  His subsequent speech criticizing former President Trump and failure to repair that relationship greatly weakened him within his caucus.  And after leading a Senate Republican delegation to Kyiv, he became smitten by the Ukrainian people fighting Putin’s efforts to re-establish the Soviet empire.  As Russian disinformation took hold in the Republican base, this commitment weakened him further.  Like the Lady of Shallot, he grew half tired of the shadows that are today’s Republican Party, lost his magic, and paid the political price.   

     Senator McConnell never allowed anyone to get to his right on substance, although he maintained more tactical flexibility in negotiating deals than many other congressional Republicans.  Assertions that the next Senate Republican Leader will be more conservative are therefore absurd.  The next Senate Republican Leader likely will be much weaker than Senator McConnell, far less able to make commitments on behalf of their party and hence far less able to secure concessions from Democrats.  The MAGA element of the Conference seldom meets a deal it likes or a fight it dislikes, no matter how bad the long-term consequences might be. 

     Thus, the new leader will fight more and, lacking Senator McConnell’s political and procedural skills, lose more.  When they commit their conference to positions out of step with the electorate, their subsequent collapses will give Democrats more room to dictate terms on key legislation. 

     The new leader also will have more difficulty getting rid of disastrous nominees for winnable seats and will be less adept at protecting Republicans in swing states from political embarrassment.  This could cost Republicans control of the Senate some years.   

     On substance, therefore, Democrats will likely gain from Senator McConnell’s departure from the leadership.  The increasing contentious, combative tone that will result, on the other hand, will alienate more voters from politics.  Reduced voter turn-out likely helps Republicans, particularly MAGA Republicans.  And the further degradation of our public life will contribute to the normalization of ruthless, anti-republican behavior like that of former President Trump.  That is not good for our future at all. 



Thursday, February 29, 2024

The Electoral College in 1868/1869

Gerard N. Magliocca

Building on yesterday's post about the new article on Reconstruction and the Electoral College, here is the background. In 1868, the Florida Legislature awarded the state's electoral votes to Grant. The Alabama Legislature passed a law to do the same thing, but the law was vetoed by the Governor. Then the Union Army pledged to protect Black voters at the polls in exchange for the abandonment of direct appointment by the state legislature. (Grant carried the state narrowly).

In response, a constitutional amendment was immediately proposed in Congress to establish uniformity and federal authority over the Electoral College. Here was the proposal, with the changes in italics:

Each State shall appoint, by a vote of the people thereof qualified to vote for Representatives in Congress, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust and profit under the United States, shall be appointed an elector; and the Congress shall have power to prescribe the manner in which such electors shall be chosen by the people.

This proposal received the necessary two-thirds vote in the Senate but did not pass the House. 

What's the upshot for Section Three and Trump v. Anderson? The Framers of the Fourteenth Amendment were well aware that states could use inconsistent standards in choosing presidential electors. Voices were raised to give the Congress a leading role in that process through another amendment. The proposal failed.  This reinforces the understanding at the time that the Electors Clause conferred broad authority on states and that inconsistent applications were not unconstitutional.

Sour Grapes, The Supreme Court, and Ideological Drift

Andrew Coan

In recent years, critics have frequently condemned the Supreme Court for changing too much, too quickly. The constitutional law professors quoted in Jesse Wegman’s recent NYT column are good examples. 

A common retort is that this critique is simply sour grapes or hypocrisy. Liberals and progressives would love to enact sweeping constitutional change leftward and would not hesitate to do so if they controlled a majority of the Supreme Court. But denied the sweet fruit of judicial power, they hypocritically condemn its exercise for conservative ends as radical, high-handed, and illegitimate—just like Aesop’s disgruntled and envious fox. Many responses to Wegman’s column have expressed variations on this view.

This is an uncomfortable charge for liberals and progressives, but it demands to be taken seriously. On the other hand, the Court’s liberal and progressive critics have a number of plausible and weighty responses at their disposal. 

First, liberals and progressives are not a monolithic group, and the membership of the group has changed over time for many reasons. The most significant for present purposes is cohort replacement. Some of today’s leading proponents of the “too much, too quickly” critique have been around long enough to have made significant public commitments that now seem inconsistent—or at least in serious tension—with the critique. But many belong to a younger generation that is developing its jurisprudential commitments in the crucible of the present moment.

Second, the charge of sour grapes, hypocrisy, or opportunism implies conscious bad faith, which the critics have not proven and is probably unprovable. Unproven does not mean wrong, of course. But a more charitable, and more realistic, explanation might point to the alchemy of motivated reasoning or, what amounts to the same thing, the suppression of cognitive dissonance.  Indeed, there are even more charitable, and arguably more plausible, explanations. Jack Balkin’s 1993 paper on “ideological drift” helpfully explains: 

The sincere individual who lives, as we all do, in the currents of ideological drift, does not perceive her beliefs in this way. … This individual has many possible responses to the tension produced by ideological drift: she may believe that she has changed her mind, that she gradually has come to understand more clearly what she always has believed, or that her principles and commitments have remained constant, however much they may have been misunderstood by others in changing contexts. But in no case is she an opportunist. In each case she believes in her reasons, because she reasons through her beliefs. 

These thought processes should be familiar to conservatives from the well-documented transformation of originalism over the past few decades. What began as a theory of judicial restraint, formulated in response to the liberal judicial activism of the Warren Court, has evolved into a theory of “judicial engagement,” formulated as a justification for the conservative judicial activism of today. On top of this, we can add selection effects in the reception and recirculation of scholarly ideas, which are probably more common pathways for politics and ideology to influence the evolution of constitutional arguments than conscious bad faith, subterfuge, or opportunism. 

All of this provides good reason to hesitate before embracing sour grapes as the best understanding of the “too much, too quickly” critique. That understanding should be taken seriously, and it is probably justified in some cases. But there are other more charitable and psychologically plausible explanations. At a minimum, sour grapes, hypocrisy, and opportunism are not the only plausible explanations for the critique, and it is worth asking whether there are other ways to make sense of it. 

At the same time, the sour grapes charge raises an important and pointed question that liberal and progressive critics of the current Supreme Court who do not favor gradualism as a general matter should feel obliged to answer: Namely, why do these critics oppose sweeping constitutional change in some circumstances, while favoring it in others?

I explore these issues further in this new paper.

Wednesday, February 28, 2024

Reconstruction and the Electoral College

Gerard N. Magliocca

I want to draw attention to an interesting new article in The Journal of the Civil War Era entitled "Reconstruction, Racial Terror, and the Electoral College." Here is the Abstract:

The threats of “fake electors” and of legislatures choosing presidential electors are important in the Trump era. The question of how electors are chosen dates back to the Founding era, but the Electoral College achieved new salience during Reconstruction, when Florida’s Republican legislature called off its presidential vote in 1868. Klan terrorism against African Americans prompted that measure, and when Alabama’s legislature followed suit, it provoked a national backlash. After U. S. Grant’s election, a diverse coalition of congressmen tried to ensure that voters, not state legislatures, would choose presidential electors. The idea was broadly popular. In 1869 the Senate passed a “Sixteenth Amendment” mandating popular elections, but conflict between the two chambers over the Fifteenth Amendment killed it. Despite that outcome, the outcry against legislative selection had enduring consequences. The issue had been settled in the public mind; few ventured to raise it again until the twenty-first century.

The article observes that there was considerable debate in 1869 about the role of the Electoral College. Advocates of a constitutional amendment requiring a popular vote to appoint electors went out of their way to stress that states would retain broad power over the rest of the presidential election process, which is the point that Respondents are making in Trump v. Anderson. I may have more to say about this paper in a subsequent post.

Is Trump v. Anderson Moot?

Gerard N. Magliocca

The answer is no, but let's think about why. The Colorado primary is on Tuesday. We will probably not get a decision from the Court by Tuesday. Why won't that moot the case?

First, the primary results will not be certified right away. The Court's opinion could come down before the Colorado Secretary of State declares the official winner. This is what happened in Cawthorn v. Amalfi, the Section Three challenge brought against Representative Madison Cawthorn in 2022. The Fourth Circuit's opinion came out after Cawthorn lost his primary but before the result was certified. Thus, the Court said that the case was not moot.

Second, presidential primary results can be understood as tentative until the National Convention is held. Primaries award delegates to candidates. But those delegates will not vote until the GOP convention in July. Thus, a case involving primary eligibility is a live controversy until the Convention.

Third, for prudential reasons the Court will want to decide now on some theory, however far-fetched.

UPDATE: Though not likely to last for long, an Illinois court today ruled Donald Trump ineligible to appear on the state primary ballot.

Richard Re on "The One Big Question"

Andrew Coan

Last weekend, I hosted the National Conference of Constitutional Law Scholars, sponsored by the Rehnquist Center at the University of Arizona. Richard Re delivered an excellent keynote lecture entitled "The One Big Question." You can watch the video here

The conference is co-organized by Rebecca Aviel (Denver), David S. Schwartz (Wisconsin), and my Arizona colleagues Eunice Lee and Shalev Roisman. If you would like to get on the mailing list for our annual call for papers, please email Bernadette Wilkinson

Two Views of Constitutional Change

Andrew Coan

Critics who charge the Supreme Court with changing too much, too quickly raise a deep question: How should we understand the object of constitutional change? Is constitutional law simply a collection of discrete rules of varying significance and breadth? Or is it better understood as a whole—more precisely, as the vector sum of political or ideological values embodied in the constitutional order? 

If the former, the pace and magnitude of constitutional change are primarily a function of the number, significance, and breadth of the constitutional rules changed over a particular span of time, without regard to their ideological valence. On this view, sweeping constitutional change might involve a sharp shift to the right, a sharp shift to the left, or a sharp shift in many rules of mixed ideological valence. But if constitutional law is a vector sum of political values, the last of these three is very different from the first two. On this view, a sharp to the right or the left qualifies as sweeping constitutional change. But a sharp shift of mixed—we might say offsetting—changes is, in an important sense, no change at all. Many rules can change without changing the vector sum of values embodied in the constitutional order as a whole.  

To make the point more concrete, we can compare the current Supreme Court with its two immediate predecessors—the Rehnquist and Burger Courts (bracketing the earlier incarnations of the Roberts Court). In a valuable series of blog posts, Jonathan Adler contends that the current Court has overruled precedents and invalidated laws at lower annual rates than either the Rehnquist or Burger Court.  Setting aside questions of significance and breadth, his analysis calls into question the conventional wisdom among liberal and progressive observers (and some enthusiastic conservatives) that we are living in a period of revolutionary constitutional change. 

But this is true only if one views constitutional law as a collection of discrete rules. If one instead views it as the vector sum of political values, the conventional wisdom makes more sense. The Rehnquist and Burger Courts may have overruled more precedents and invalidated more laws—in absolute terms and as a percentage of their caseloads—but, as Adler acknowledges, their decisions were significantly more ideologically balanced. By comparison, the decisions of the Supreme Court since 2017, and especially since 2020, represent a sharp rightward shift in the vector sum of political values, with a promise of much more to come.  

We need not choose between these two views of constitutional change. Both are plausible, and they are best understood as describing different forms that sweeping constitutional change might take. In this sense, they are complements, not competitors. It is worth noting that the vector-sum view takes account of ideology, but it does not define sweeping constitutional change in overtly ideological terms. To extend the mathematical metaphor, what matters is the absolute value of the change to the vector sum of values, not the ideological sign of that change. 

Whether change of either form is too much, too quickly is another question, which I explore in this new paper.


Tuesday, February 27, 2024

The Relative Insignificance of the (Resolution of) Trump's "Presidential Immunity" Argument

Marty Lederman

While we're waiting to see what the Supreme Court does with former President Trump's application to stay the proceedings in the D.D.C. criminal case so that he can appeal the court of appeals' rejection of his motion to dismiss the indictment on "immunity" grounds," I have a new post up at Lawfare about why the substantive stakes of that argument are much less than what many might assume.  In short, not only is the immunity argument meritless--it also shouldn't affect Trump's trial very much even if the Supreme Court resolved it in Trump's favor.

Memory and Authority: The Uses of History in Constitutional Interpretation


My latest book, Memory and Authority: The Uses of History in Constitutional Interpretation, has just been published by Yale University Press. Here is a description of the book from the Press:

Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court’s current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Lawyers and judges construct—and erase—memory to lend authority to their present-day views; they make the past speak their values so they can then claim to follow it. The seemingly opposed camps of originalism and living constitutionalism are actually mirror images of a single phenomenon: how lawyers use history to adapt an ancient constitution to a constantly changing world.
Balkin shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history. He explains how lawyers and judges invoke history selectively to construct authority for their claims and undermine the authority of opposing views. And he elucidates the perpetual quarrel between historians and lawyers, showing how the two can best join issue in legal disputes. This book is a sweeping rethinking of the uses of history in constitutional interpretation.

“At a moment when the Supreme Court is playing fast and loose with its notions of the nation’s ‘history and traditions,’ Jack Balkin provides a much-needed, nuanced, and perceptive analysis of how lawyers, scholars, and informed citizens should think about historical interpretations of the Constitution.”—Jack Rakove, author of Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion

“Lawyers and historians have long mistrusted each other. In this remarkable book, one of our most brilliant constitutional theorists blazes a path towards a more satisfying coexistence by reframing the many ways history is deployed in the creation of constitutional claims. Bravo!”—Laura Kalman, Distinguished Research Professor of History, University of California, Santa Barbara

“History does not belong only to historians. Lawyers and judges often invoke history to justify arguments they wish to make. Memory and Authority is a brilliant meditation on how this process has worked in the past, and should work. This timely intervention is perfect for our moment, as we consider the future of our democracy and the rule of law.”—Annette Gordon-Reed, Carl M. Loeb University Professor, Harvard University

“American lawyers and judges have long turned to the historical past for guidance and authoritative answers, but never more so than in recent years. Jack Balkin’s expert navigation of the complex and contested terrain where law and history intersect is essential reading for anybody who cares about the nation’s constitutional practice.”—Jonathan Gienapp, author of The Second Creation: Fixing the American Constitution in the Founding Era

Lecture at the Court on May 1st

Gerard N. Magliocca

I'm excited to announce that I'll be giving a lecture at the Supreme Court on Bushrod Washington. The lecture is on May 1st at 6PM. I hope to see some of you there. Here is the announcement:

Monday, February 26, 2024

The Crisis in Teaching Constitutional Law?

Andrew Coan

Jesse Wegman has a column in today's New York Times on "the crisis in teaching constitutional law." It is remarkably similar to a piece Mark Joseph Stern published in October 2022. Both quote an array of mostly liberal and progressive constitutional law professors arguing that the Supreme Court is changing too much, too quickly. Perhaps the purest expression of this view comes from Barry Friedman in Wegman's piece today:

Even more troubling than the court’s radical rulings, from a teacher’s perspective, is the rapid and often unprincipled manner in which the justices reach them.

“What feels different at this moment is the ambition and the velocity, how fast and aggressively it’s happening,” said Barry Friedman, a longtime N.Y.U. law professor and co-author of a book on judicial decisionmaking. 

What should we make of this "too much, too quickly" critique of the Court? Is it simply sour grapes from the Court's liberal and progressive critics, as Jonathan Adler and others have argued? Or an example of the "good old days" fallacy, as Gerard Magliocca suggests in a characteristically pithy post this morning? Or is there something more to it? 

I try to answer these questions in a new paper.

Response to Commentators

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Robert Post

            Oliver Wendell Holmes, Jr., who devised the funds (symbolically) supporting the volume discussed in this symposium, lived most of his life in the shadow of his rock star father, Oliver Wendell Holmes, Sr. Even as a Justice on the Supreme Court, Holmes would regularly be mistaken for the author of Old Ironsides or Elsie Vedder. Holmes chafed at his relative obscurity, struggling to resign himself to a career in which what mattered was only “what a few masters scattered here and there say.”

            Having spent 35 years laboring on a book that will market for $250 a copy, I fully identify with Holmes’s sentiment. For a long history that will never achieve popularity, what matters most are the opinions of those few who know. And in this sparkling symposium Jack Balkin has assembled masters who in fact know. Their views give me deep and true pleasure.

It is a reward beyond price that so many who are so expert would dwell, even for a moment, among the hundreds of pages that have cost me so many years of my life. It is profoundly gratifying to have the “mechanics of craft” by which these volumes sought to extract a convincing narrative from “inherently overlapping and inextricably intertwined thematic doctrinal material” recognized and appreciated by so exceptional an historian as William Novak. I am deeply grateful to Jack and to the many contributors who have so generously made this symposium possible.

            When he was filming Satyricon, Fellini remarked that he wanted to make the past seem like science fiction. His ambition was to strip away the invisible grammar of assumptions through which we continuously construct the present. Without that grammar, the past becomes suddenly strange and unfamiliar. I had a similar ambition in writing The Taft Court. I wanted to demonstrate the fallacy of imagining the Taft Court as simply the Roberts Court in top hats. Tom Schmidt, in his marvelous contribution explaining how the Judges’ Bill of 1925 changed the implicit nature of Supreme Court decisions and authority, illustrates the point well. He demonstrates that the past is not simply a backward extension of the present. It takes determined effort to appreciate the many ways that the Taft Court, which superficially seems so similar to the Roberts Court, was actually quite a different institution.

            Ed Purcell most fully (and movingly) captures this thought. He explains (better than I could myself) why the conception of judicial authority during the 1920s was fundamentally different than anything we can easily imagine today. We are all now more or less positivists. We all believe that law derives from authoritative sources and texts. That is the legacy of the brilliant Oliver Wendell Holmes, Jr. But the Taft Cort was pre-positivist. It believed that even in the context of constitutional law it spoke for the same “crystallization of public sentiment” that underwrites the mandates of common law courts. As Purcell recounts, the Taft Court understood itself as an unmediated channel for the values and mores of the American people. It takes a strenuous effort of historical imagination for modern lawyers to recapture this alien grammar of judicial authority.

Read more »

The Costs and Benefits of Constitutional Change

Andrew Coan

How should we balance the costs and benefits of sweeping constitutional change? This is the deep question raised by critics who argue that the Supreme Court is changing too much, too quickly. 

Every sensible argument for gradualism must acknowledge that the values served by gradualism—whatever they may be—are not the only ones that matter. At least in principle, those values can always be counterbalanced or overridden by other values. This reality creates an ever-present temptation to embrace a gradualism of convenience: The Court should move slowly in dismantling decisions the critic approves, but quickly when dismantling those that the critic disapproves. This temptation, in turn, creates understandable suspicion on the part of those whom gradualism urges to slow down and proceed more incrementally. Gradualism, from this vantage point, smacks of sour grapes.

On the other hand, the necessity of balancing gradualism against other values also offers a potentially persuasive response to the charge of sour grapes. The costs of sweeping constitutional change can constitute an important reason for objecting to the Supreme Court’s decisions even if those costs are not the only basis for the critics’ opposition—and even if the critics might believe those costs worth bearing in some other context for some other set of constitutional goods. 

To make the point concrete, the costs of upending abortion rights, affirmative action, and important elements of the modern regulatory state all at once might be a substantial and important reason to proceed with greater caution. But whether those costs are a decisive reason will depend on the countervailing benefits, if any, of aggressively pursuing these results. Views on this question will predictably diverge along ideological lines, even among interlocutors operating entirely in good faith.  

I explain further in this new paper.

Sunday, February 25, 2024

The Dynamic Politics of Living Constitutionalism

Richard Primus

 Today I served as a guest judge giving feedback for several teams of public high school students in a competitive program in which the students make arguments about topics in constitutional law.  One of the teams argued that the Supreme Court should sometimes depart from the original meaning of a constitutional provision in light of the modern world’s changed ideas and conditions. 

Their example of a case in which the Court properly departed from an original meaning in this way was SFFA v. Harvard/UNC.  The students conceded that an originalist reading of the Fourteenth Amendment would permit affirmative action on behalf of a disadvantaged racial minority group but argued that the Court was correct to rule affirmative action unconstitutional today.

Saturday, February 24, 2024

The Taft Court: Law, History, and the Jurisprudence of Federalism

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Edward A. Purcell


Professor Robert C. Post’s new book, The Taft Court: Making Law for a Divided Nation, 1921-1930, is the latest installment of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States.  It is an exceptional work of scholarship and most likely as nearly definitive as any one book could be.  It does honor to the distinguished and long running series of which it is now an integral part.

Rather than attempting to write a comprehensive “history of record,” Post seeks to produce a study that is “more thematic” and historically grounded.  His “primary aim” is to place “the jurisprudence of the Taft Court within the cultural context of its decade,” he tells us.  “If there is a single theme that threads its way throughout this volume, it is how the Court’s seemingly technical doctrines were fashioned in continuous dialogue with the popular preoccupations of its era” (xxv).  The Taft Court achieves its goal admirably, rejecting any idea that law can or should be “reduced to abstract theory or prescription” and demonstrating convincingly that it is instead “made in the rich complexity of historical time” (xxv).

Insofar as Post felt any need to comply with some Holmes Devise obligation to produce a “history of record,” he does so indirectly by supplementing his text with exceptionally voluminous footnotes that amplify and extend his thematic discussions.  Rich and detailed, the footnotes develop related topics and provide revealing summaries and quotes from a wealth of primary sources including popular and scholarly articles, Court documents, judicial notebooks, and private letters.  They also furnish extensive and highly useful citations to a wide range of secondary sources.  All of this material adds immeasurably to understanding the workings of the Taft Court, especially the ideas and motives of the individual justices and the personal and judicial relations that existed between and among them.  The footnotes evidence the amazing breadth and depth of the author’s more than three-decades-long research into the Taft Court, and every student of the Court’s history both before and after Taft will find them and the whole book an informational goldmine.

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Friday, February 23, 2024

Increasingly Brazen Article V Convention Advocates Smell Victory Even as States Reject Them

David Super

      By any objective measure, the American Legislative Exchange Council (ALEC) is faring badly in its Koch-funded campaign to call a convention under Article V to revise the U.S. Constitution.  It is losing states faster than it is gaining them:  in the last few years, Colorado, Delaware, Maryland, Nevada, and New Mexico rescinded Article V applications for causes ALEC is promoting; Illinois, New Jersey, and Oregon rescinded unrelated old applications after ALEC-aligned groups claimed those could somehow be counted to reach the necessary 34 states.  ALEC now has no plausible path to gaining 34 states under the counting rules Congress has applied for more than a century.  And its supporters are increasingly proving the accuracy of opponents’ warnings about the dangers of a convention after years of vehemently denying them. 

     Yet the convention proponents are showing increasing confidence that they can force radical changes in the Constitution in defiance of the states’ will and even of Article V itself.  And they could be right.

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The Taft and Roberts Courts’ Quests for Returns to Conservative “Normalcy”: A Comment on Robert Post’s The Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

James E. Fleming
I.          Introduction
            Congratulations to Robert Post for completing his monumental The Taft Court. It is a staggering, inspiring, and illuminating achievement! The careers of a number of prominent law professors have been weighed down by the heavy burden of expectations arising from the Oliver Wendell Holmes Devise History of the Supreme Court. Though Robert notes that he began working on the book 35 years ago (xxv), he has borne that burden well. The book has a fresh, energetic, and urgent feel to it. Indeed, his completion of the book at this moment is unexpectedly timely in ways I will sketch.
            I recently published Constructing Basic Liberties: A Defense of Substantive Due Process, a vigorous defense of substantive due process at a time when it is imperiled. Therefore, I will focus on Post’s analysis in Part V of the Taft Court’s protection of fundamental liberties through substantive due process. This was, after all, during the Lochner era. In these comments, I will be unabashedly and unapologetically presentist. After all, I am not an historian but a normative constitutional theorist, and so I will leave it to others to assess whether Post gets the history right. Instead, I shall focus on the implications of his analysis of the Taft Court for understanding and criticizing the Roberts Court. In terms of the subtitle of his book, both courts face the challenges of “making law for a divided nation.”
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National Conference of Constitutional Law Scholars

Andrew Coan

Today and tomorrow, I will be hosting the National Conference of Constitutional Law Scholars, sponsored by the Rehnquist Center on Constitutional Structure at the University of Arizona. 

Richard Re will deliver the key note address. Distinguished Commentators include Richard Albert, Aditya Bamzai, Erin Delaney, Toni Massaro, Neil Siegel, Reva Siegel, and Mila Sohoni. A full program is available here

The conference is co-organized with Rebecca Aviel, David Schwartz, and my Arizona Law colleagues Eunice Lee and Shalev Roisman. 

Panelists are chosen through an open call for papers every fall. If you would like to get on the mailing list for our CFP, please email Bernadette Wilkinson

Thursday, February 22, 2024

Justice Alito’s delusions of persecution

Andrew Koppelman

Prejudice against conservative Christians is a real thing. But so is the tendency to see prejudice where it isn’t. That is Supreme Court Justice Samuel Alito’s special talent.

I explain in a new column at The Hill.

Too Much Abstraction in Constitutional Argument

Gerard N. Magliocca

While we await the opinion in Trump v. Anderson, I wanted to make one observation about some of the questions posed from the bench about the purpose of the Fourteenth Amendment.

Suppose I was arguing on behalf of states-rights with respect to a provision in the 1787 Constitution. Justice X then says: "Counsel--The purpose of the Constitution was to augment federal power and curb state power in response to the failures of the Articles of Confederation. Your argument on behalf of state power runs against that purpose and is thus ahistorical." I think we'd agree that the conclusion does not follow from the premise. The conclusion is too sweeping and leaves out many important details.

In effect, though, this was the line of argument that the Chief Justice, Justice Thomas, and (to some extent) Justice Jackson pursued about the Fourteenth Amendment. They suggested that Section Three cannot be enforced by the states against federal candidates (or maybe just presidential candidates) in part because the purpose of the Fourteenth Amendment was to augment federal power and curb state power. Here too--the conclusion does not follow from the premise, even though the premise is accurate.   

The Taft Court, Equal Protection, and The Centrality (or not) of Race

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

 Ariela Gross

Robert Post’s magisterial history of the Taft Court devotes only its final chapter (out of forty-three) to equal protection and race, in fitting recognition of the level of importance the Taft Court assigned to the protection of Black rights in a decade that saw some of the bloodiest massacres of Black Americans since the Civil War and its violent aftermath, well beyond the borders of the former Confederacy.

As Black landownership reached an all-time high in 1910 (not matched since), Black soldiers returned from war in Europe to a nation recommitting itself to white supremacy. The Tulsa Massacre destroyed the area known as Black Wall Street, injuring more than 800 people, killing as many as 300, and destroying 35 city blocks. In 1923, 200 white men attacked the Black community of Rosewood, Florida, killing more than 30 people and effectively racially cleansing the town of Black residents. Such racial cleansings and establishment of “sundown towns” happened across the United States. At the same time, nativism swelled to unprecedented levels as Congress passed the racist Immigration Act of 1924, which drew the interest of Hitler and the Nazis as the most perfect racial law yet conceived. As one Nazi scholar put it, the 1924 law “represents a carefully thought-through system that … protects the United States from the eugenic point of view.” (See James Q. Whitman, Hitler’s American Model) In Virginia, the Racial Integrity Law of 1924 not only codified a strict “one drop of blood” definition of blackness, but created an administrative bureaucracy to ferret out and recategorize people of any African ancestry, including Indian tribes that may have absorbed people of African descent. This was also a period of rising racial segregation in cities outside the U.S. South, using a variety of legal mechanisms, including zoning and racial covenants, to exclude Black people, Mexican Americans, and Asians from neighborhoods, as well as from public accommodations, voting booths, and other institutions of public life.

During this period of racial and ethnic cleansing, Dean Post tells us, the Court did not see its role as the safeguard of minority rights. When it used the equal protection clause, it was primarily to protect corporations from discrimination (as against other persons, or in-state vs. out-of-state corporations), to “advance social policies that it deemed important, like safeguarding the national market from local interference, protecting corporations and employers, and promoting economic development.” (Post, 1430) But when it came to Black rights, the Court reflected Northern Republican popular opinion, which acquiesced to Southern white supremacists with regard to “social equality” among races, and took a formalist approach to the civil rights that would be protected by law.

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Wednesday, February 21, 2024

Building the Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Thomas P. Schmidt

            Constitutional history often focuses on the development of judicial doctrine—say, tracing the career of the Fourteenth Amendment from Plessy and Lochner through Brown and Roe to SFFA and Dobbs. That focus of course yields important insights. But it can sometimes overlook the institutional dimension of constitutional history—that is, the way that constitutional law interacts with the evolving design of the bodies that articulate and implement it. When one reads a series of edited cases in uniform juxtaposition in a casebook, one can easily miss the variety of institutional arrangements that produced—and sometimes shaped—those cases. 

            The focus on doctrine at the expense of institutional history probably explains the relative obscurity of William Howard Taft’s work as Chief Justice. Indeed, Post himself confessed that when he was assigned volume on Taft in the Holmes Devise series, he felt he’d “drawn the short straw.” Today, Taft is “all but forgotten” (p. xxxv). Taft’s most memorable opinion—probably the only one of Taft’s opinions that a typical law student could name—was Myers v. United States, on the President’s removal power, which was “severely undercut[]” by a unanimous Court less than a decade later in Humphrey’s Executor (p. 416). 

            As an institutional reformer, though, what Taft accomplished in only nine years as Chief Justice nothing short of astonishing. Felix Frankfurter, who knew something about the business of the Supreme Court, said that Taft’s judicial reforms had earned him “a place in history . . . next to Oliver Ellsworth, who originally devised the judicial system.” (Ellsworth had authored the First Judiciary Act.) Post’s magisterial new volume on the Taft Court shows why Frankfurter’s encomium was so richly deserved. In several ways, Taft built the modern Court. Post’s restoration of Taft to his rightful “place” also illuminates a deeper point—that the details of institutional practice often reflect or instantiate evolving theories of the Court’s role and the grounds of its authority. (On that point, I can’t help but detect the palimpsestic residue of the two great thinkers about judicial institutions who were initially assigned the Taft volume of the Holmes Devise but prevented by their untimely deaths from completing it—Alexander Bickel and Robert Cover.) 

            What were Taft’s big reforms? First, Taft was the impetus for the passage of the so-called Judges Bill of 1925, which transformed for the Court’s jurisdiction by making it mostly discretionary. (It was called the “Judges Bill” because Taft lobbied for it and a committee of Justices, led by Van Devanter, drafted it.) The Judges Bill gave the Court the power in most instances to choose, through the “certiorari” process, whether it would hear a case at all. This was a radical change. As Post observes, the beginning of the “Taft Court was probably the last moment in the Court’s history when it could authentically inhabit decision-making practices appropriate for final appellate tribunal whose primary task was to settle disputes between litigants” (p. xxxvii). After the Judges Bill (and the Court’s articulation of the certiorari standard in its Rules), the Court would pick cases not primarily to resolve a dispute but instead to expound upon some broadly important legal issue. Indeed, the Court soon went even further than picking cases—it claimed the power to choose which questions within a “cert” petition it would address. The result, as Post explains, was that the Court increasingly came to resemble a “ministry of justice”—a body empowered to expound on a carefully curated selection of important legal questions (p. 484).

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