There is no man in this country to whom the colored race is more indebted.

— Washington Bee (Oct. 21, 1911) (an African American newspaper)

History has vindicated John Marshall Harlan, who dissented in some of the Supreme Court’s worst decisions concerning race and limiting the scope of federal power. He was prescient in recognizing the need for a strong national government to deal with urgent issues, such as civil rights. And he was surely correct in understanding that the equal protection clause must mean that one race never can be superior or subordinate to another.

— Erwin Chemerinsky (June 25, 2021)

More than a century before Justice Ruth Bader Ginsburg became legendary for her biting dissents, Justice John Marshall Harlan I was the original notorious dissenter. During his time as an associate justice from 1877 to 1911, he broke with his colleagues in some of the most consequential – and infamous – rulings that the court has ever issued. Harlan’s moral vision is memorialized in his lone dissent in Plessy v. Ferguson and his series of dissents in the Insular Cases, among many others. Yet his record is not unblemished: He distrusted immigrants from China and even voted to deny citizenship to their U.S.-born children.

Last year, Peter S. Canellos published a new biography of Harlan, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero. Canellos is the managing editor for enterprise at Politico, overseeing the site’s magazine, investigative journalism, and major projects. He is also a graduate of Columbia Law School.

I corresponded with Canellos about his book. Here is our conversation, which has been lightly edited for length and clarity.

The back story

RONALD COLLINS: Welcome, Peter. Before The Great Dissenter, your previous book was Last Lion: The Fall and Rise of Ted Kennedy. It’s a long conceptual stretch from a book about Sen. Kennedy to one about Justice John Marshall Harlan. What explains that?   

PETER CANELLOS: In each case I was drawn to the overall arc of the story. In the case of Sen. Kennedy, it was how someone who was so easily dismissed – and whose own early actions and misdeeds compounded that impression – could remake himself into the greatest legislator of his era. In Harlan’s case, the story arc that first attracted me was the notion of posthumous vindication – how a man who went so far out on a limb in his time could land so comfortably in the mainstream of legal thought. In the end, though, a large part of the story turned on the question of just what it was that enabled Harlan to see the law so differently from his peers. There are many answers to that question, but the role of Robert Harlan, who was believed in his lifetime to be the justice’s half-brother, was a particularly intriguing part of the puzzle.

One point of connection between the Kennedy book and the Harlan book is that each revealed how historians’ fixation on the presidency often obscures the importance of other branches of government. I think the story of the Gilded Age – Harlan’s time on the court – is better understood through the actions of the Supreme Court, which voided antitrust laws, declared the income tax unconstitutional, blocked labor reforms, knocked out civil rights protections, refused to enforce voting rights, and approved the legal architecture of segregation. Harlan dissented in all those cases. I also think that Kennedy’s role in drafting and promoting legislation in the Senate, such as the Immigration Act of 1965, along with civil rights and health legislation, amounts to a legacy greater than that of some of the presidents of his era.

John Harlan had eight siblings, grew up in a slave state, and was raised in a slave-holding family. His father, James Harlan, was quite a persona in his own right. Tell us a little about him and his influence on John.

James Harlan served in Congress and as Kentucky’s attorney general, and was a devoted follower of Henry Clay, to the point that Clay’s politics and James’ were almost interchangeable. Those politics were shaped almost entirely by the threat of civil war, which hung over all their adult lives. They perceived that Kentucky would be a battleground of that war, and that the state’s peculiar politics – half in sympathy with the South and half with the North – would shred its civic life for generations. James Harlan strongly rejected the states’ rights arguments than animated the South. He particularly admired Chief Justice John Marshall, whose beliefs in the supremacy of the federal Constitution and the rule of law over politics seemed to point a way out of the slavery crisis. Hence, John Marshall Harlan’s name.

In the Acknowledgements, you credit Adam P. Willis, “who spent three years chronicling the soul-inspiring story of Robert Harlan.” Against that backdrop you note: “If there is any mystery to Harlan’s story, its solution lies in the person of Robert Harlan.” Why is that so?

I am indeed indebted to Adam Willis, who was my research assistant and took the lead in plumbing newly digitized niche newspapers — African American newspapers, horseracing journals, and the European English-language press, among others – for what they told us about Robert Harlan’s life and John Marshall Harlan’s reputation. There were two main revelations in Adam’s work. First, it showed the extent to which Robert Harlan was viewed as a leader and celebrity in the African American community, the horseracing world, and in Europe. This was a man who was born enslaved, became a renowned horseracing pioneer, made a fortune in the Gold Rush, brought American thoroughbreds to compete in England, and then emerged as the leading African American politician in the most politically important state, Ohio. Second, Adam’s research showed the extent to which John Marshall Harlan’s dissents in race-related cases, which were largely ignored in the mainstream press, were a constant subject of attention in the Black press. The nation’s African American leaders, from Frederick Douglass on down, were intensely focused on Harlan’s arguments, and he helped to inspire future generations of African American lawyers.

There’s also something inspiring in the fact that Robert Harlan maintained a relationship with John, and that the two collaborated politically at various junctures. These included the 1876 Republican National Convention, which was in Robert’s home base of Cincinnati and at which John was the floor leader for the presidential candidacy of Benjamin Bristow. Later, Robert sent John a series of letters offering political advice and sharing his efforts to promote John for a Supreme Court appointment. It’s difficult to tell how much of an impact Robert’s efforts had in helping John secure the nomination, but I think we can assume they helped to assuage the main concern about him – ironically, that he was insufficiently supportive of civil rights.

Later, when John became the court’s only defender of African Americans’ civil rights, many people were surprised. But the other justices – most of them Northerners – had little personal exposure to Black people and seemed to accept notions of racial inferiority. Robert Harlan, however, had risen from slavery to wealth and power. He was the living refutation of the assumptions that were implicit in Plessy v. Ferguson and other cases.

The “Chinese race” question

In her otherwise laudatory New York Times review of your book, Jennifer Szalai wrote: “Canellos is protective of his biographical subject, straining to put a charitable gloss on some of Harlan’s more troubling comments from the bench, especially regarding what Harlan called ‘the Chinese race.’” What is your response to that?

The book explores what I consider a deep and, when taken to extremes, troubling vein of thinking in Harlan’s politics and legal views. He was a strong believer in the uniqueness of American democracy, and how it emerged as a rejection of the monarchies that controlled most of the world. He had a strong sense of American exceptionalism. He felt that people who came to America needed to commit themselves to the hard work of self-government. At times, though, those feelings led him to be overly skeptical of people whom he felt lacked that commitment. Before the Civil War, he questioned whether some Catholics, committed to the doctrine of papal infallibility, could be true supporters of American democracy. He questioned whether the children of British subjects, born while their parents visited the United States with no intention of becoming Americans, should receive birthright citizenship. This skepticism extended to Chinese workers who came to the United States under a treaty that did not allow them to become citizens; they remained subjects of the Chinese emperor. Thus, he joined a dissent by Chief Justice Melville Fuller in United States v. Wong Kim Ark that rejected the idea that children born to Chinese workers who were not themselves on a path to becoming American citizens should be granted birthright citizenship. I think he was on the wrong side of that case.

Harlan also joined a unanimous court in 1889 in rejecting a challenge to the Chinese Exclusion Act. The plaintiffs argued that Congress could not unilaterally pull out of a treaty; the justices said they could, and that case remains the law today, even though it sustained an objectionable piece of legislation. At the same time, though, it should be noted that Harlan sharply dissented when the Supreme Court refused to grant civil rights protections to Chinese victims of white vigilantes in California. He was also the court’s strongest supporter of granting full constitutional rights to Filipinos and Hawaiians. So I conclude that his feelings about birthright citizenship in Wong Kim Ark, like his views on Catholics and British subjects, stemmed from his skepticism of people who remained subject to foreign rulers, and not from any reflexive racial prejudice against Asians.

Some Harlan critics also point to the line in his Plessy dissent stating that there is “a race so different from our own that we do not permit those belonging to it to become citizens” as endorsing discrimination against Chinese people. In fact, he was making the legally important point that people of all races except Black people were permitted to sit alongside white railroad passengers. Only Black passengers were put in a separate car. He was challenging the idea that Louisiana’s Separate Car Act was truly “separate but equal.” He was demonstrating that the purpose of Louisiana’s law was to separate Black people, not to treat every race equally. It’s an insensitive line to today’s ears, to be sure, but not intended to endorse discrimination.

My overall conclusion is that Harlan wasn’t the hero to the Chinese that he was to African Americans and other racial minorities, but nor was he biased against them. I think Jennifer Szalai correctly sensed that I felt obliged to explain why I didn’t believe he was an anti-Chinese racist. It’s an important issue to address, not only because it’s a serious charge, but because many people cite it today as a reason to dismiss Harlan’s unique place as a defender of equal protection under the law.

Holmes v. Harlan

Second perhaps only to Chief Justice John Marshall, Justice Oliver Wendell Holmes is often cast as the greatest Supreme Court jurist. In many ways, your biography can be read as contesting that claim and elevating Harlan to a seat higher than that of Holmes. Was Harlan truly a greater jurist than Holmes?

I do believe that Harlan should have a place in the legal pantheon above Holmes, but I readily acknowledge that there’s something a little reductive in the idea of ranking jurists. Much of Holmes’ reputation rests on his role in First Amendment law, for instance, an area where Harlan’s legacy is negligible. Having read some of the leading opinions of each, though, I think they’re fascinating contrasts. In the broadest sense, Holmes was a legal theorist who approached cases as challenges to his intellect. Harlan was concerned with the plain meaning of the Constitution, and how cases affect people on the ground and alter the trajectory of the nation. For instance, he warns in his Pollock v. Farmers’ Loan & Trust Co. dissent of how voiding the income tax would hamstring the federal government in event of war, when tariff revenue dried up. Having lived through Dred Scott, he was deeply conscious of how mistakes by the court could lead to terrible outcomes. Comparing court decisions with which he disagreed to Dred Scott was almost a reflexive tactic of his.

Holmes’ opinions often attest to his greatness as a legal thinker but lack the innate sense of fairness and justice that Harlan brought to his work. Holmes’ “three generations of imbeciles” opinion in Buck v. Bell is often cited among the worst in court history. I was also surprised that Holmes found a way to concur with the majority in Berea College v. Kentucky, which upheld a state law banning interracial education even in private schools where everyone chose to learn together. That case occasioned Harlan’s last passionate dissent on race. All in all, Holmes authored many more opinions that offend today’s sense of justice than Harlan did.

While there was, as you write, “a baseline of respect” between Holmes and Harlan, the two had real differences with often opposing views of the law. Even so, in a March 3, 1903, letter, Holmes said this of his colleague: “He is a simple nature, but a forceful intellect and a personality that would be hard to replace – under superficial shortcomings a great engine – and a noble courage.” Is that a fair assessment of Harlan? 

I think it’s more than fair. But Holmes also had less flattering things to say about Harlan; in an April 5, 1919 letter he compared Harlan’s mind to “a powerful vise the jaws of which couldn’t be gotten nearer than two inches of each other.” That line really shows Holmes’ talent with words and images! He also called Harlan “the last of the tobacco-spittin’ judges.” Some have viewed this as a sign of Beacon Hill condescension toward Danville, Kentucky, but I think it may have been simply a reference to Harlan’s love of chewing tobacco. Holmes, like Jefferson perhaps, was brilliant but all over the map in his thinking. This was a man who managed in his long and illustrious life to make disparaging comments about both Abraham Lincoln and Franklin Roosevelt.  

Before we leave Holmes, his latest biographer (Stephen Budiansky) referred to his majority opinion in Giles v. Harris (1903) as “one of his most poorly reasoned opinions,” adding that his “argument bordered on sophistry.” Despite a record of racial bias, Holmes’ majority opinion allowed Alabama’s requirements for voter registration and qualifications to stand based on the claim that the court lacked jurisdiction. Harlan dissented. Though his opinion on the jurisdictional matter is a read best suited for students of federal courts, you maintain it is, nonetheless, one of great importance. Why? What was at stake in Giles?   

I think it’s generous to say that Holmes allowed Alabama’s abject violation of voting rights to stand based on jurisdictional concerns. There was a threshold issue in the case – whether the case was justiciable under a law requiring that any dispute to reach the high court must be greater than $2,000 – but Holmes rejected it. He then went on to craft his own argument that the case amounted to a political question. He based that finding on expediency. He openly acknowledged that Alabama’s state constitution, which grandfathered in the voting rights of ex-Confederates and their progeny while allowing others to be excluded based on standards as amorphous as a voting clerk’s decision that a person lacked good character, was intended to deny voting rights to African Americans. But he then argued that the plaintiffs’ chosen remedy – being granted the right to vote – made no sense if the entire voting regime was unconstitutional. How, he wrote, “can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists?” Holmes was overthinking things, to say the least. In his Giles dissent, Harlan allowed that he would have granted the initial $2,000 challenge (which at least would have given the plaintiffs a chance to retool the case), but added that, based on his reading of the law, “the plaintiff is entitled to his relief in respect of his right to be registered as a voter.”

Why is this important? If the court had ordered that Jackson Giles and his 5,000 co-plaintiffs be registered as voters, it’s likely that, as Holmes feared, many Alabama officials would have defied the ruling. But I suspect there would have been some pockets of the state where the opinion of the Supreme Court would count for something. And it would have given African Americans the assurance that the Supreme Court was on their side. Over time, the pressure to follow the court’s edict would have grown. That doesn’t mean that racial injustice would have been wiped out, but merely that the battle for voting rights would have begun earlier and perhaps advanced more quickly. That’s the way I feel about most of Harlan’s opinions in race-related cases. If the other justices had followed Harlan’s lead and decided the cases the way he recommended – the opposite of how they actually decided them – many Southern officials would have remained intransigent and the court would have been left without reliable mechanisms of enforcement. But the long, torturous process of acceptance and reconciliation that began in 1954 with Brown v. Board of Education might have begun in, say, 1883 instead.

Justice John Marshall Harlan I. (Library of Congress)

“Desperate struggle”

 “Harlan was more than just a legal theorist,” you write. What was the measure of the man that prompted you to say that? What is the psychological arc of someone who once defended slavery and opposed the 13th Amendment but thereafter became one of the nation’s greatest champions of racial justice? To pursue the matter a little more: In a chapter titled “John vs John,” you state: “John was prepared to see the end of slavery. But he felt that Kentucky’s loyalty to the Union entitled the state to make its own choice whether to abolish slavery.” That is, how is it that the same man who opposed Lincoln’s Emancipation Proclamation in defense of states’ rights could also be such a resolute defender of racial justice?

At the time you’re referring to, the last years of the Civil War and its immediate aftermath, Harlan was deeply influenced by his own desperate struggle in 1861 to persuade his fellow Kentuckians not to join the Confederacy. He assured them that the Lincoln administration would respect their (initial) neutrality and allow them to chart their own path in the post-war world. Instead, Lincoln put Kentucky under martial law. Harlan was the state’s attorney general at the time, obliged to represent the state government in challenging the federal assumption of power. He opposed the ratification of the 13th Amendment because he wanted Kentucky, presumably by plebiscite, to make its own decision on slavery. Perhaps he felt emancipation would have more credibility if it were not imposed from outside. Perhaps he felt a stubborn need to defend his own promises of five years earlier. Over the next two years, however, his views dramatically changed.

Critics insisted Harlan’s motive was pure expedience, that perhaps he had started to envision a future for himself in the national Republican Party. (There was no personal gain in state politics in tethering himself to the unpopular Republicans.) There is a lot of evidence, however, that he was shocked and alarmed by the rise of Ku Klux Klan-like vigilantes. Out of the muddle of his early views emerged a sharp sense of clarity. He felt that inequality was the moral and political sin that violated the great principles upon which the United States was founded. And whether it was through segregation or the types of cobbled-together systems governing the U.S.-controlled Philippines, Puerto Rico, or Hawaii, he always believed that treating one group of people differently from others was a recurrence of the old cancer.

Though some, like Justice Felix Frankfurter writing separately in Adamson v. California, viewed Harlan as an “eccentric” visionary, there was a perceptive strain of realism in his lone dissents in cases such United States v. Knight Co. and the Civil Rights Cases. Tell us a little about that realist streak in Harlan.

His dissents often included direct references to how the majority opinion would, in practical ways, impact the lives of people on the ground and the future of the country. He really wrestled with the facts. In Plessy v. Ferguson, he called out the majority for willfully ignoring the true intent of the Louisiana Separate Car Act. In the Civil Rights Cases, he attacked the idea that Black people had been special favorites of the law. In Knight, he scoffed at the distinction between manufacturing monopolies and commercial monopolies, and the majority’s obtuseness in suggesting there was no intention to restrain trade expressed in the papers creating the Sugar Trust: “Was it necessary,” he asked, “that formal proof be made that the persons engaged in this combination admitted in words that they intended to restrain trade or commerce?”

A “most emphatic” moment

You devote considerable attention to Pollock v. Farmers’ Loan & Trust Co., a 5-4 decision that struck down the federal income tax of 1894 as violative of Article I, Section 9 of the Constitution. As you describe it, conservatives saw the tax as “Socialism in action. Assault on American values. Destruction of property through taxation. The poor storming the castles of the rich.” Harlan’s dissent proved influential in changing the constitutional law of the nation. Can you say a few words about that dissent and how it influenced what happened in 1913?

Harlan was not alone in dissenting in Pollock, but he was the most emphatic, and took some heat for appearing intemperate. But his dissent helped to inspire Cordell Hull, who, as a young congressman, launched a crusade to overturn the ruling. Hull read Harlan’s dissent and the others into the Congressional Record and stressed that the strength of their arguments suggested that a new line-up of justices would view the income tax differently. His goal was to get Congress to pass an income tax to test the justices’ willingness to overrule Pollock. Instead, he got the powerful Senate leader Nelson Aldrich, father-in-law to John D. Rockefeller Jr., to agree to allow Congress to consider a constitutional amendment. Aldrich thought it would never happen. However, it quickly gained steam, and the 16th Amendment was ratified in 1913.

Plessy revisited

Given that there have been some 10 books on Plessy v. Ferguson, and countless scholarly articles on the case and Harlan’s famous dissent in it, what is there new to say about the case? In light of that, how did you set out to approach your discussion of Plessy? 

I took as a starting point the idea that most people who were interested in Harlan knew about his role in Plessy. So I relied on other accounts along with the primary documents for most of the facts of the case. The new material in my book related to Plessy is focused on how Harlan’s dissent helped to sustain the faith of African Americans in the legal system and inspire the civil rights lawyers of the 20th century, especially Constance Baker Motley and Thurgood Marshall.

Time has turned around many of yesterday’s truths as the words of the past take on new meaning in the present. This is certainly true when it comes to Harlan’s famous maxim in Plessy that “our Constitution is color-blind.” You point out that both William Bradford Reynolds, assistant attorney general for civil rights in the Reagan administration, and Justice Antonin Scalia, writing separately in City of Richmond v. J.A. Crossen Co., invoked that maxim to oppose affirmative action programs. So did Justice Clarence Thomas in his separate opinion in Grutter v. Bollinger. What do you make of such invocations?

I think it’s fair of those lawyers and jurists to make the argument that a color-blind Constitution would look skeptically on affirmative action. I don’t venture an opinion on how Harlan would have seen it. But I take note of the comments made by Thurgood Marshall in 1987 defending Harlan’s words as an ideal that has yet to be realized. “Affirmative action is an issue today because our Constitution was not color blind in the sixty years which intervened between Plessy and Brown.”

Too far … or too tough?

Like other mortals, John Marshall Harlan’s feet touched the earth: What were his shortcomings, his mistakes in life or law or both? For example, might his opinion for the Court in Cumming v. Board of Education of Richmond County (1899) sanctioning de jure segregation of races in schools be seen as “grievous pettifoggery” as Richard Kluger put it in Simple Justice? That opinion, after all, was overruled in Brown v. Board of Education.

I think Harlan’s skepticism about whether foreigners, accustomed to living under monarchies, could acclimate themselves to American self-government went too far. His views became much more moderate over time, and he took pains to repudiate his involvement in the anti-immigrant Know-Nothing party. But this vein of thinking never quite left him. It probably accounts for his joining Fuller’s dissent in Wong Kim Ark, which is a blemish on both their reputations. As for Cumming, I think Kluger, who is an extraordinary writer and role model for serious journalists everywhere, was nonetheless too tough on Harlan’s opinion. C. Ellen Connally, the first African American woman elected judge in Ohio, has written a persuasive article suggesting that Harlan joined the majority in Cumming precisely to write a narrow opinion that could never be used to undermine equal-protection doctrine. If Harlan had chosen to dissent, Fuller might well have chosen Justice Henry Billings Brown to write the majority opinion and repeat his Plessy arguments.

Interestingly, a lot of questioners ask me about whether it was truly honorable for Harlan to dissent rather than work with his colleagues to lessen the impact of their decisions. I reply that Harlan’s differences with his colleagues in most of his major dissents were too fundamental to bridge. The Cumming case, however, is an example of him choosing to join with his colleagues in order to render a majority opinion that did not offend his principles of color blindness and equal protection under the law.

In the chapter titled “In Trusts We Trust,” you make an interesting point about how 19th-century economic forces, beholden to the giant trusts of the day, forever changed the practice of law. Please elaborate.

I trace a lot of the Fuller court’s conservative economic views to the fact that so many of the justices were corporate attorneys with backgrounds representing railroads and industrial trusts against states’ attempts to regulate them. These attorneys were of the first generation of truly wealthy lawyers. When they were born, in the early decades of the 19th century, being a lawyer meant putting out a shingle and representing your neighbors. The rise of the railroads transformed the practice of law as much as the rest of the economy. Suddenly, lawyers like Rufus Peckham, Henry Billings Brown, Melville Fuller, Samuel Blatchford, and more became very wealthy men, the peers of the industrial giants whom they represented. After Lincoln, there was a nearly four-decade string of pro-business presidents (all Republicans and the “bourbon” Democrat Grover Cleveland) who appointed these men and their ilk to the Supreme Court. Harlan, who was the product of the unusual circumstances of Hayes’ election and his vow to put a southerner on the court, was the notable exception.

The post Greater than Holmes? The life and legacy of John Marshall Harlan appeared first on SCOTUSblog.

Tired of reading jargon-filled law review articles with hundreds of footnotes? The perfect antidote is Painting Constitutional Law: Xavier Cortada’s Images of Constitutional Rights, edited by Professors M.C. Mirow and Howard Wasserman. The book combines art and academic analysis into a refreshing and creative take on major Supreme Court cases — with an added dash of “Florida weirdness” to keep things interesting.

Artist and lawyer Xavier Cortada has created 10 striking paintings, each depicting a significant Supreme Court case originating in Florida. Cortada is a longtime Floridian who received his law degree from the University of Miami and is now a professor at the University of Miami Department of Art and Art History; his work combines his legal training with his artistic vision of how each Supreme Court decision shaped the nation. The series of paintings was first exhibited in the rotunda of the Florida Supreme Court before being moved to a permanent display at Florida International University.

In Painting Constitutional Law, Mirow and Wasserman have gathered a group of leading constitutional scholars to respond to the paintings and the cases they depict. As Wasserman explains, the editors gave these constitutional experts “freedom to make the paintings and essays their own.” The result is a series of diverse essays united by their discussions of Cortada’s artwork, legal iconography, and constitutional law. 

One of the more powerful images is of Clarence Earl Gideon, who was charged with burglary in 1961 and was forced to represent himself at trial because he was too poor to afford a lawyer. After being convicted, he handwrote a petition for writ of certiorari in pencil from his jail cell. In a watershed decision in Gideon v. Wainwright, the court ultimately ruled in Gideon’s favor, holding that the Sixth Amendment guarantees a right to government-funded counsel for indigent criminal defendants. Cortada depicts Gideon sitting on the edge of his cell, barefoot and wearing an orange prison jumpsuit, writing on what appears to be a roll of toilet paper.

As Professors Paul Marcus and Mary Sue Backus explain in their accompanying essay, Cortada’s grim image reminds us that Gideon’s petition was “the longest of long shots.” It was both an “act of desperation” and an “act of faith in the United States constitution.” That faith was not misplaced. In Gideon, the court acknowledged for the first time the “obvious truth” that a criminal defendant could not get a fair trial without a lawyer. Gideon not only won the right to a lawyer for all indigent criminal defendants facing jail time; he also won his own freedom. Five months after the Supreme Court’s ruling, he was granted a second trial. This time, represented by a lawyer, he was acquitted.

Marcus and Backus spend much of the essay discussing the questions that followed in the wake of the court’s decision in Gideon. Do indigent defendants deserve representation when they face no jail time but significant collateral consequences of a conviction, such as loss of employment, professional licenses, government housing, or (for noncitizens) deportation? And what should happen when a criminal defense attorney performs poorly? As the authors explain, the case law so far suggests that the level of “effectiveness” required to satisfy the Constitution is shockingly low. Cortada’s painting reminds us that Gideon’s petition started a constitutional debate that is still ongoing.

One of Cortada’s more jarring images concerns the court’s 1976 decision in Proffitt v. Florida, a companion case to Gregg v. Georgia, in which the court revived the death penalty after a four-year de facto moratorium. Cortada depicts a man strapped into an electric chair, his face twisted in pain. Roman numerals line the walls on one side of the chair. 

The accompanying essay by Professor Corinna Barrett Lain explains the painting is particularly powerful because Florida has had well-documented problems with its electric chair. Dubbed “Ol’ Sparky,” the chair caused a number of botched executions in the 1990s. The numbers on either side of the chair are also significant. Proffitt upheld Florida’s statute requiring courts to weigh a list of aggravating and mitigating factors before imposing the death penalty. In Proffitt and its companion cases, the court concluded that such factors provided rational standards for the death sentence, satisfying the Eighth Amendment’s prohibition against “cruel and unusual” punishment.

Lain, like Cortada, is critical of the decision. She writes that studies have shown the futility of such formulas, which lead many jurors mistakenly to conclude that they are required by law to impose the death penalty in cases in which the aggravating factors outweigh the mitigating ones, rather than merely allowed to do so. She further critiques some of the factors in the death-penalty laws of Florida and other states as irrational and inconsistent. And she worries that balancing these factors allows jurors to distance themselves from the consequences of the decision. Such formulas enable us to “numb ourselves with numbers,” she declares.

Dean Erwin Chemerinsky’s essay addresses Bush v. Gore, surely the most controversial of the 10 cases depicted. Cortada’s painting is dominated by an hourglass, with a ballot box for Bush on one end and Gore on the other. The background is an impressionistic swirl of ballots and chads. Cortada’s image suggests that time is running out.

Chemerinsky’s essay, titled “Haste Makes Mistakes,” focuses on the role of time pressure in the court’s decision. As he reminds us, the petition for a writ of certiorari was filed on a Saturday, the case was argued on Monday, and the court issued its decision on Tuesday night. At the time, the court justified its extraordinary decision to take and decide the case at warp speed as essential to avoid an imminent constitutional crisis. 

Chemerinsky argues that the decision in Bush v. Gore violated principles of federalism, among other constitutional doctrines and norms. He blames these errors on the court’s mistaken belief that it needed to act immediately. Chemerinsky walks the reader through the sequence of events that would have followed had the court not stepped in, and concludes that the system would have worked as intended without the court’s involvement. (And he concludes that Bush likely would have been designated the winner in any case.)

* * *

As Mirow explains in his introductory essay, Painting Constitutional Law “seeks to disrupt established perspectives on constitutional law by asking highly respected scholars to see their fields through Cortada’s vivid images,” producing a “fresh and expansive exploration” of American law and life. Readers who are looking for a new approach to constitutional principles should start here.

The post The art of justice: Re-examining landmark Supreme Court cases through expressionist paintings appeared first on SCOTUSblog.

A review of Ian Millhiser, The Agenda: How a Republican Supreme Court Is Reshaping America (Columbia Global Reports 2021)

In The Agenda: How a Republican Supreme Court Is Reshaping America, Vox senior correspondent Ian Millhiser offers an engaging, accessible and well-informed statement of progressive anxieties about what the Supreme Court’s newly strengthened conservative majority may do. The book is unlikely to change many minds, however, because it betrays the very fault of which it accuses the court: It advances a vision of correct decision-making rooted more in partisan policy preferences than in neutral legal criteria.

(Columbia Global Reports 2021)

Millhiser begins the book by highlighting the Supreme Court’s present-day power and sketching the historical evolution that brought it to this point. Millhiser notes that in the so-called Lochner era of the Gilded Age and early 20th century, the Supreme Court interpreted the Constitution to forbid certain progressive economic and social legislation. But, Millhiser writes, Lochnerism “met its match in President Franklin Delano Roosevelt.” Then, in the famous 1938 Carolene Products decision the Supreme Court “established a strong presumption in favor of democracy — in nearly all cases, the people’s democratically elected representatives should decide the nation’s policy, and not unelected judges.”

Millhiser suggests that things have gone downhill from there. Although conservatives once embraced the Carolene Products principle of judicial restraint, Millhiser argues they have now abandoned it upon gaining control of the judiciary. “The Carolene Products settlement in favor of democracy is now in tatters,” he writes.

Millhiser illustrates this thesis with a whirlwind tour of four key areas: the right to vote, administrative law, religion and the right to sue. In each case, he argues the court has moved in directions favorable to the Republican Party’s agenda and electoral prospects — and that it threatens to move still further in a conservative direction.

At just 113 pages, The Agenda is deliberately and commendably brief, so it is perhaps uncharitable to fault it for insufficient nuance. Nevertheless, a number of its claims struck me as hyperbolic and lacking in context.

To begin with, it is true that the court embraced judicial restraint in Carolene Products, and it is also true that some conservatives on the court appear less committed to judicial restraint today than they once claimed to be. But a lot happened between 1938 and 2021 to make the Supreme Court the powerful institution it is today, and along the way the court (rightly or wrongly) made quite a few controversial liberal decisions overriding democratic choices. Decisions regarding abortion, cruel and unusual punishment, self-incrimination, the establishment clause, and same-sex marriage are salient examples. At this point, progressives’ newfound commitment to judicial restraint looks about as situational as did conservatives’ similar professions in the past.

As powerful as it is, moreover, the Supreme Court is not really “the locus of policymaking in the United States,” as Millhiser argues, nor is he entirely accurate in arguing that the court “spearheaded” “[t]he lion’s share of the legal changes that have occurred over the last decade.” First of all, the 10-year time frame in this statement is artificial: It omits Congress’ remarkable output just over 10 years ago, during President Barack Obama’s first two years in office, when Congress passed the Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. In addition, even during the past 10 years, Congress has enacted a number of significant laws, including tax reforms and the gargantuan spending bills of the past year and a half. Finally, while it is true, as Millhiser suggests, that political polarization has probably weakened Congress relative to the other branches, the executive branch, not the court, has been the principal beneficiary of that change.

All that said, the Supreme Court today is a remarkably powerful body — too powerful in my view — and the appointment process has become partisan to an unprecedented degree. I also agree with Millhiser that the court has taken some important wrong turns. (For example, I argued beforehand that the court would be wrong to rule as it did in Shelby County v. Holder; I have criticized some aspects of the court’s administrative law jurisprudence; and the obstacles to private litigation and class actions that Millhiser highlights deserve much greater public attention.)

Even so, I am skeptical that the court will alter the law as dramatically as Millhiser fears. Millhiser worries, for example, that by weakening federal voting rights laws and upholding state-level electoral regulations, “[t]he Supreme Court’s 6-3 Republican majority is potentially an existential threat to the Democratic Party’s national ambitions — and, more importantly, to liberal democracy in the United States.”

Time will tell, and recent events have given some cause for alarm, but I suspect the Democratic Party’s future electoral success will depend much more on its policy positions and willingness to run electable candidates than on anything the Supreme Court does. In most areas, furthermore, I suspect the court will pursue incremental rather than radical changes. Across history, the court has normally done just that, and recent threats to add court seats or take other aggressive actions seem likely to encourage restraint.

For that matter, the court has recently issued a number of surprising decisions, on matters ranging from abortion and transgender rights to immigration, criminal procedure, and federal Indian law. It is true that these decisions predated both the 2020 election and the death of Justice Ruth Bader Ginsburg. But they show that the court’s conservative bloc is hardly unified on every issue, and it is possible that some justices besides Chief Justice John Roberts will feel the pull of caution and restraint, much as he did, when it comes time to cast decisive votes for dramatic rulings.

In any event, in my view, determining whether the court’s rulings are illegitimately partisan requires more than observing that the decisions’ results align with partisan preferences; it requires some theory about what rulings would be correct on the merits. Here, on at least some points, the liberal justices’ positions are just mirror images of the conservatives’. For example, Millhiser faults the most conservative justices for rejecting judicial deference to agencies’ views of their own regulations while deferring to the Trump administration’s stated reasons for adding a citizenship question to the census. But to the extent those conclusions are inconsistent, the liberal justices’ contrary views are equally so.

In principle, a pro-democracy constitutionalism — a theory that favors judicial restraint and political resolution of policy conflicts — could provide a way out of this bind. But to provide an appropriate general orientation, such an approach must be applied across the board, and it is not clear to me which way it should cut on all the issues The Agenda addresses. Given that someone must establish electoral procedures and draw district lines, is it more democratic to do so judicially or to keep responsibility principally on state and federal elected representatives? Is it more democratic to allow broad delegations to administrative agencies or to limit them? And should balancing public order and religious liberty be left to the political process, or should courts instead show greater solicitude to even major religions in a country with declining religious observance? The answers to these questions do not strike me as obvious.

Our society’s partisan polarization seems increasingly to structure every debate, from pandemic precautions to school curricula and even pillow choices. Constitutional law is no exception. Indeed, it is an arena where this dynamic is particularly destructive. In my view, the right response is not to presume purity on one side and vice on the other, but instead to favor what I have called “symmetric” understandings: Courts should aim to craft clear rules of the road that can be applied even-handedly across differing issues and contexts. If Millhiser’s anxieties about the court suggest the need for such an approach, so does the equally partisan vision he offers in response.

The post An alarmist take on the Supreme Court’s agenda appeared first on SCOTUSblog.

The following is a series of questions posed by Professor Gabriel “Jack” Chin, University of California, Davis School of Law, to Professor Amanda Frost, American University Washington College of Law, on Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.

Frost is an expert in constitutional law, immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She writes the Academic Round-up column for SCOTUSblog, highlighting noteworthy scholarship on the Supreme Court. On Thursday, Jan. 28, at 8 p.m. EST, Politics & Prose will host a virtual book launch. For more info and to register for that event, click here.

* * *

Can you start by describing the book in a few sentences, and what motivated you to write it?

(Penguin Random House)

The book describes the events surrounding the legal battles to safeguard citizenship. Over the past two centuries, the government tried, and sometimes succeeded, in revoking citizenship from millions, including disfavored racial and ethnic groups, women who married noncitizens, imprisoned Japanese Americans during World War II, as well as political activists and labor leaders. At times, the Supreme Court defended citizenship, but at others it acquiesced or even led the way in declaring that groups or individuals were no longer entitled to the rights and privileges of U.S. citizenship.

I wrote this book in part because this history is not well known, and I wanted to share this knowledge with a wider audience. The book is a legal history, but it is told primarily through the stories of those who lost their citizenship, using their own words whenever possible. These people were remarkable, and one of my goals was to write an accessible book in order to share their citizenship battles with a broader audience.

Those who lose their citizenship often turn to the courts for relief, but as you explain, the Supreme Court has not always protected citizenship. Why has the court protected some individuals from losing citizenship even as it refused to protect others?

Supreme Court decisions often reflect their historical moment. When the political branches choose to revoke citizenship, they do so from those viewed as “un-American” — whether because of their race, ethnicity, speech or even their choice of marriage partner or reading material. Like elected politicians (and the rest of us), the justices are influenced by the public’s perceptions of who is a “real” American entitled to the rights of citizenship, and who is not.

When the court decided Dred Scott v. Sandford in 1857, the nation was debating whether slavery could be reconciled with the Declaration of Independence’s founding principle of equality. Chief Justice Roger Taney thought he had solved that problem when he declared that no Black person, slave or free, could claim the “rights and privileges of citizenship” — in other words, that all Blacks were outside of the social compact. As the dissent pointed out, to reach that conclusion he had to ignore historical precedent supporting Black citizenship, including the fact that some Black residents of the United States had the right to vote, and some had even voted to ratify the Constitution that Taney thought denied them citizenship. But Taney and a majority of the justices could not see beyond their deep-seated assumptions about race and equality.

At other times, though, the court protected citizenship from the political branches’ efforts to take it away, even when it was not politically popular to do so. In its 1967 decision in Afroyim v. Rusk, the court put a stop to the government’s Cold War denaturalization campaign, declaring: “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”

Was there a Supreme Court decision regarding citizenship stripping that surprised you?

I was pretty taken aback by Mackenzie v. Hare, the 1915 decision in which the court unanimously upheld a federal law revoking U.S. citizenship from American women who married noncitizens.

The story behind that case is almost too good to be true. The plaintiff, Ethel Mackenzie, was a well-known suffragist who had successfully fought for the right to vote in California. But when she tried to vote in the next election, she was barred because she had married a Scotsman. Under the Expatriation Act of 1907, American women who married noncitizens automatically lost their citizenship. Mackenzie challenged the law in the Supreme Court, but none of the (male) justices could understand why it would be important for women to maintain independent citizenship.

The happy ending to the story is that two years after the 19th Amendment guaranteed women the right to vote in 1920, the Expatriation Act was partially repealed — though it was not eliminated entirely until 1931. And the credit for getting rid of it goes in part to the newly elected women in Congress.

You argue that citizenship stripping has “served as a proxy for overt discrimination.” Can you elaborate on what you mean by that, and how citizenship stripping fits in with more familiar forms of discrimination?

Citizenship stripping has been used to discriminate in ways otherwise prohibited by law. The Supreme Court has held that the right to vote, serve on a jury, own property, criticize the government, work in a variety of professions and remain in the United States cannot be denied on the basis of race, religion, gender, speech and other protected grounds. But, as the court explained in Mathews v. Diaz in 1976, it is legally permissible to discriminate against noncitizens in a variety of ways. I argue that at times the government has taken advantage of that distinction, using access to citizenship as a facially neutral means of accomplishing unconstitutional goals.

Is there a Supreme Court justice whose vote in a citizenship case you view as particularly significant?

I was struck by Justice Felix Frankfurter’s 1944 opinion for the court reversing the denaturalization of Carl Wilhelm Baumgartner, a German immigrant who had become a naturalized U.S. citizen in 1932.

Baumgartner supported the Nazis, made anti-Semitic statements and declared publicly that “he would be glad to live under the regime of Hitler.” Frankfurter was the court’s only Jewish member, and the case was decided on June 12, 1944 — just a week after D-Day, at a time when Nazi Germany still posed a very real threat to the world. Nonetheless, Frankfurter wrote that U.S. citizenship came with the “freedom to speak foolishly” without fear of expulsion for doing so. By authoring the opinion, Frankfurter drove home his point that citizenship could not be lost even for expressing abhorrent speech and beliefs.

Access to law and to lawyers has been essential for many litigants, especially the Chinese at the turn of the 20th century, and imprisoned Japanese Americans during World War II. How did these disempowered groups get access to the judicial system?

Chinese immigrants in the United States pooled their resources to hire high-profile, establishment lawyers, who filed thousands of cases on their behalf — a massive pro-bono effort comparable to that of the NAACP during the civil rights movement in the 20th century. In fact, the Chinese should get more credit for pioneering a legal strategy that is still used today.

ACLU lawyer Wayne Collins was dogged and passionate in fighting to restore the citizenship of the nearly 6,000 imprisoned Japanese Americans who had been coerced into renouncing their citizenship. After 15 years of litigation, the government finally admitted its errors and restored their citizenship. Collins is proof of the difference one lawyer can make.

How has race affected the Supreme Court’s citizenship decisions?

Not surprisingly, race plays a big role in this story all the way through.

Citizenship stripping was often intertwined with questions about race, membership and political power. Dred Scott’s declaration that Blacks could not be citizens epitomized the view that the United States was a white nation. The 14th Amendment’s citizenship clause overruled Dred Scott, declaring that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The Supreme Court played a vital role in implementing the 14th Amendment’s citizenship guarantee. In the 1890s, Solicitor General Holmes Conrad argued that the native-born children of Chinese immigrants did not qualify for birthright citizenship. Conrad was an un-Reconstructed former Confederate officer who rejected every aspect of the 14th Amendment. He even went so far as to argue before the Supreme Court that the amendment was itself unconstitutional because the southern states had been coerced into ratifying it — a startling claim even in 1898. But the court rejected that view, holding in United States v. Wong Kim Ark that birthright citizenship applied to all, regardless of race or ethnicity.

Is there a justice whose views on citizenship came as a surprise?

Justice John Marshall Harlan’s dissent in Wong Kim Ark startled me.

Harlan’s stance in favor of civil rights for Blacks led Frederick Douglass to declare him “a moral hero.” In 1896, just a year before Wong’s case reached the court, Harlan had written an angry dissent in Plessy v. Ferguson — the case establishing “separate but equal” accommodations for whites and Blacks, cementing Jim Crow racial segregation into U.S. law until the Supreme Court’s 1954 decision in Brown v. Board of Education finally began to put an end to it. The court’s lone dissenter in Plessy, Harlan had passionately argued that “our constitution is color-blind.”

But then just two years later, he was one of only two justices to conclude that the native-born children of Chinese immigrants were not citizens, despite the clear language in the 14th Amendment granting citizenship to all born on U.S. soil. As you have written, Jack, Harlan’s dissent in Wong Kim Ark complicates his legacy as an advocate for racial equality.

As you explain, citizenship stripping lives on today. Donald Trump questioned birthright citizenship for the children of undocumented immigrants and threatened to end it by executive order. The State Department refused to give passports to those born near the southern border and outside of institutional settings. Citizens are mistakenly detained and deported by immigration officials, and proving citizenship is getting harder. What do you think the Supreme Court would do now if people were told by their own government, “You Are Not American”?

 In recent years, the Supreme Court has been more protective of citizenship than the political branches. In Afroyim, the court thought it had put an end to the government’s aggressive denaturalization campaigns, and for a while it succeeded. But a footnote in that opinion allowed for denaturalization in cases of fraud or mistake — a tiny loophole that the Trump administration used as grounds to launch an investigation of over 700,000 naturalized citizens. Whether the government’s expansive interpretation of that footnote is legally permissible never reached the Supreme Court.

I think if and when new cases come before the court, the justices are likely to be skeptical of the government’s power to lightly revoke citizenship. In 2017, in Maslenjak v. United States, the government argued before the court that it could denaturalize anyone found to have made even a minor error in a naturalization application. At oral argument, Chief Justice John Roberts asked Assistant to the Solicitor General Robert Parker if failing to admit to having driven at 65 miles per hour in a 60-mile-per-hour zone would be grounds for denaturalization. Parker responded yes, and the government lost its case in a unanimous opinion.

Does the story you tell show that the United States is basically a bigoted, racist country? Or is it the opposite, given humane outcomes like the quick repudiation of Dred Scott, the rejection of racial limits on birthright citizenship in Wong Kim Ark, and the opportunity for women who were expatriated because they married noncitizens to regain their citizenship?

It is both at once. On the one hand, the United States claims to be an open, tolerant country that welcomes immigrants — and at times it lives up to that ideal. But citizenship stripping is evidence of our nation’s schizophrenia. The government has repeatedly passed laws casting out its own citizens, both native-born and naturalized. Women who married noncitizens, Chinese Americans at the turn of the century, Japanese Americans during World War II, even labor leaders and political activists have all been declared “un-American” — not just rhetorically but as a matter of their legal status. Some were even deported. And as I explain in the last chapter, citizenship stripping lives on today.

Happily, though, the story doesn’t end there. As I describe in the book, those groups successfully fought back, sometimes (though not always) with the help of the Supreme Court. So the book is in part about the nation’s constant struggle to live up to its stated ideals.

The post The Supreme Court’s role in defining American citizenship appeared first on SCOTUSblog.

Hamilton content? Hamilton content! Hardly any topic is more ubiquitous these days than Lin-Manuel Miranda’s smash musical. Fans, academics, artists and writers of all stripes – even Supreme Court justices – have found cause to analyze or drop references to it. Seemingly the only platform it hasn’t graced is SCOTUSblog.

That is, until now. With Hamilton and the Law, released in October from Cornell University Press, editor Lisa Tucker has invited 32 luminaries from across the legal profession to “read[] today’s most contentious legal issues through the hit musical.” And how to discuss “contentious legal issues” without turning to the Supreme Court? While the book deals with a wide range of topics, Tucker and her compatriots – many of them respected Supreme Court advocates and scholars – spend a good deal of time gleaning lessons from the musical regarding the justices and their role in our constitutional republic.

Lisa A. Tucker is an associate professor of law at Drexel University’s Thomas R. Kline School of Law, where she specializes in legal research and writing as well as the Supreme Court. A former contributor to SCOTUSblog, Tucker is also the author of the novel Called On.

Thank you, Lisa, for participating in this Q&A for our readers, and congratulations on the publication of your latest book.

***

Question: You recount in the preface that Hamilton and the Law was conceived on one journey, a college tour road trip with your daughter. Tell us about the journey that followed. How did you spin your idea into a successful partnership with so many contributors?

Answer: The journey that followed was both epic and unexpected. Once I started talking to lawyer and law professor friends about my idea, they were almost as excited as I was. It turned out, they were, like me, obsessed with Hamilton: An American Musical. Judge Ketanji Brown Jackson proudly told me she’d been the first federal judge to quote the musical in an opinion. Elizabeth Wydra reported that they sang it around her office and tried to fit lines from the show into their briefs. Numerous law professors taught it in their classes – even classes that had nothing to do with the Constitution or the Federalist Papers! Erwin Chemerinsky told me that he’d learned to use technology in the classroom specifically so he could share parts of the show with students.

Based on the enthusiasm of a few, I decided to try to spread the net wide. I wanted to find contributors who were truly diverse, in every way: male and female; black, white and brown; older and younger; liberal and conservative; at top-ranked law schools and at lesser-known institutions. When I posted a call for proposals on Facebook, I got more replies than I have on almost any other post; to my surprise and delight, many were from people I’d long admired but never would have dared approach. They, in turn, suggested other enthusiasts. Before I knew it – like, in a month — I had commitments from about three dozen contributors.

A scene from Drexel Law’s trial of Aaron Burr (Art Lien)

Meanwhile, at Drexel Law, we decided to try Aaron Burr for the murder of Alexander Hamilton, using only the musical’s libretto as the record. Greg Garre and Neal Katyal traveled to Philadelphia to lead the prosecution and defense teams. Ketanji Jackson judged. Local attorneys and law students “played” the witnesses. Art Lien sketched, just like he would at a SCOTUS argument. When the audience of 50 took on the role of the jury, the verdict was “not guilty” – but by a margin of a single vote. As I’d thought all along, the “evidence” in the musical points toward premeditated murder by Burr, but also toward an argument for his self-defense, perhaps even toward suicide by duel. Drawing all of that evidence out was educational and thought-provoking.

It was becoming clearer and clearer to me that this wasn’t just a gimmick or a fun idea born of way too many miles of driving between small liberal arts colleges. The musical really spoke to lawyers. It made them think more deeply about their areas of the law.

Question: As you note in your own essay in part one, “Hamilton: An American Musical does not mention the Supreme Court.” Yet a number of the book’s contributors focus entirely on the court, and many who don’t in these pages do so in their careers. Did you conceive of the book as being so court-focused? If not, why do you think it turned out that way?

Answer: I didn’t conceive of the book as being so court-focused, but I’m not surprised that a number of the essays explore the role of the court in the constitutional democracy Hamilton helped create. First, and perhaps most obviously, most of my friends are SCOTUS and SCOTUSblog junkies; that’s what they think about day in, day out. But I also think that the absence of SCOTUS in the musical gave birth to some fan fiction in the book (and if you’re into fan fiction, Rebecca Tushnet has lots to say in the book about the genre). Authors explored what was there all along, but never mentioned: how the judicial system was integral to the “notion of the nation [they] now [got] to build.” The contributors who talked about SCOTUS also reflected on how the musical might influence the court; would originalism become a more progressive idea, for example, as the musical’s portrayal of the Founding was a progressive one? After seeing the show, had the justices taken away any lessons about society, about justice?

But it’s important to emphasize, even here on SCOTUSblog, that the book has many, many other themes. Essays explore the role of race and gender in America; copyright issues inherent to the musical’s sampling of hip-hop artists’ work; domestic violence (was Maria Reynolds a victim?); dueling (the entire show is a duel, if you think about it); and much, much more.

Question: Your essay focuses on confirmation battles, specifically the bitter clash over the nomination of Brett Kavanaugh in 2018. The book was released on Oct. 15, 2020, right in the middle of the confirmation fight over now-Justice Amy Coney Barrett. How do you think Hamilton would have viewed the state of modern Supreme Court nominations?

Answer: Wow. That’s a tough one. At least in the early part of his career, I think that Hamilton would have been shocked that we have confirmation battles at all. After all, in the musical, Jefferson says he’s “already Senate-approved.” In real life, he certainly didn’t plead his case before the Senate! In the show, Hamilton is also surprised by the idea of campaigning and comments “That’s new” when Aaron Burr is making the rounds.

But I think the duelist in Hamilton would have been fascinated by the process – and, as Jody Madeira, Benjamin Barton and Ian Millhiser describe in Hamilton and the Law, duels are verbal and political as well as, in their physical form, lethally violent. This was a man who fought for his ideals. The fight would have interested and provoked him. Modes of constitutional interpretation – and that ongoing battle – would have probably inspired him to write another 51 Federalist Papers.

As for televised hearings, Hamilton would have loved those. He would have broken out his fanciest knee-length coat and cravat. He would have welcomed the chance to pontificate, either as a participant or as a commentator. And then he would have pitched op-ed after op-ed to the national papers, if he wasn’t writing exclusively for the paper he founded, The New York Post. I can just picture the letters to the editor! “Your obedient servant, A. Ham.”

Question: President George Washington reportedly considered Hamilton to fill a vacancy on the Supreme Court, for chief justice no less. What kind of justice do you think Hamilton would have made?

Answer: Hamilton would have been the very opposite of a shrinking violet. If he had sat on the modern court, he would have wanted to sit between Justice Stephen Breyer and Justice Clarence Thomas (I know, it wouldn’t actually work that way) and whisper in their ears during the oral arguments. He would have peppered advocates with questions. He would have chummed around with Justice Antonin Scalia and engaged in a “duel” of sorts about who could write the most scathing dissent.

Meanwhile, he would have been furiously taking notes about everything, all the better to have his papers preserved for future scholars.

One question occurs to me, though: If Hamilton had become a justice, could he have restrained himself, as justices traditionally do, from commenting on politics? And would he ever have written the Reynolds Pamphlet? If not, just think how the course of his life would have changed.

Question: In part three, the book turns to race. Hamilton has long been thought of as ahead of the court on this issue. He promoted abolitionist causes until his death, 52 years before the court cemented slavery’s place in our antebellum Constitution in Dred Scott v. Sanford. Since the book’s publication, however, reports have emerged that Hamilton owned slaves during his lifetime. I’m curious to know how you reacted to these new findings. How do they impact the legacy of Hamilton the person? Of Hamilton the musical?

Answer: When I learned that Hamilton was himself a slave owner, I had mixed reactions. In her essay in the book, Christina Mulligan discusses the controversy that engaged many historians from the start: that the musical gives a somewhat inaccurate picture of Hamilton as an abolitionist. Certainly, the discovery that he himself owned slaves supports that view. So in that vein, it wasn’t a surprise. But I’m far from a Hamiltonian scholar; I’m just an uber-fan of the musical. Now, when I think about the Alexander Hamilton character in Hamilton: An American Musical, I feel sort of like I did when I found out that Harper Lee had written an earlier first draft of To Kill a Mockingbird and that our justice-loving, segregation-hating Atticus Finch wasn’t all that he seemed. I still haven’t been able to bring myself to read Go Set a Watchman. It’s just too disappointing.

Still, I think that slavery as a theme in the musical is an important one, for several reasons. John Laurens’ fight for racial equality is mirrored by the musical’s visual advocacy for it. The “revolution” for independence in the musical echoes the cries for equality and cohesion that we still hear today. And several of the African American actors have commented that they were meaningfully affected by the incongruity of playing white men who enslaved their ancestors. They found ways to reconcile the two; Christopher Jackson, who played George Washington in the original cast, decided to hang his head at the end of the musical when Eliza talks about his legacy. Christina Mulligan reflects in her essay in the book that “[E]ven if we understand Hamilton as fiction, it still has a profound effect on how its audience engages with the reality of the Founding era.”

Just as documentaries and news stories move us to action, so too do narratives through which audiences can connect to and empathize with those whose rights have been violated. Hamilton, by offering us front row seats to a protest which changed the course of history, even inviting us in (“Ladies and gentlemen, you coulda been anywhere in the world tonight. But you’re here with us in New York City!”), may have helped people see that they and their friends could make a difference. Otherwise, as the musical asks, “What are the odds the gods would put us all in one spot?”

As contributor Kimberly Norwood describes in the book, the musical is a protest, both on its face and just beneath the surface, through the story that it tells and the way that it tells it.

A hip hop musical? People of color playing the roles of the Founding Fathers? A focus on the Founding Mothers’ role? “You must be outta your goddamn mind!” A protest against Broadway conventions, the musical emphasizes the importance of protest as a legacy that the Founders, who fought against oppression, left for our generation. A protest against conventional stories in which the “hero” comes out victorious and the “villain” gets his just deserts, Hamilton asks us to consider if there are real “winners” in a war, or whether war – actual or political – is destined to scar those who participate. A protest against the history books, Hamilton’s Founders, all people of color, earn the audience’s support and empathy; the white people receive its scorn.

When our children tell the story of the Founding, they will tell the story of Alexander Hamilton and his posse. But learning that story through the musical means that they will tell a story that America has not often heard, or at least not often listened to carefully. And perhaps the musical will encourage them, however indirectly, to engage in protest about things that really matter.

So, does it matter that the real Alexander Hamilton was a slave owner? In the context of history, yes, absolutely. In the context of the musical, I’m not as sure.

Question: Immigration is another focus of the book, in part five. Most immigration policy today comes not from Congress but from the White House, and in recent years the court has grappled extensively with dueling executive orders from Presidents Obama and Trump over everything from children brought here without documentation to a travel ban and border wall. An immigrant himself, Hamilton repeatedly called in the Federalist Papers for a powerful executive, remarks which are quoted often by the justices in their opinions on the separation of powers. What do you think Hamilton would have made of the expanded role of the president on immigration, and of the court’s grappling with it?

Answer: The Hamilton in the musical believed strongly that immigrants were an essential part of the fabric of America. “Immigrants, we get the job done!” is the most applauded line in the show. And, as Neal Katyal writes in the book, “[That line], and Hamilton as a whole, can be understood as an even stronger dissent to the Supreme Court’s majority in Trump v. Hawaii,” the court’s 2018 decision upholding Trump’s travel ban by a 5-4 vote. He goes on to say, “In writing Hamilton, [Lin-Manuel] Miranda understood the way in which our Founders celebrated, and did not demonize, immigration.” Katyal remarks, “I am a deep believer in the power of art to bring people together.”

But to some extent, of course, Hamilton is art, and Miranda took dramatic license when creating Alexander, the character. By 1800 or so, the real Alexander Hamilton had lost his enthusiasm for vigorous and unfettered immigration. As Ron Chernow put it, “Throughout his career, Hamilton had been an unusually tolerant man with enlightened views on slavery, Native Americans, and Jews. His whole vision of American manufacturing had been predicated on immigration. [By the turn of the 19th century], embittered by his personal setbacks, he sometimes betrayed his own best nature.”

In Federalist No. 70, Hamilton says that “[e]nergy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks.” Note the use of the word “attacks”; Hamilton apparently wasn’t concerned about the immigration of foreign citizens, but only about attacks by them. And he loved the idea of a strong president, at least in some realms.

As for the court? Well, Hamilton tells us in Federalist No. 78 that the judicial branch has practically no power, particularly when compared to the executive:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution … The Executive not only dispenses the honors, but holds the sword of the community. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

So I’m not sure he would have been impressed with the court telling the president that his immigration policy was for the birds, if and when it ever did so.

In short, Hamilton would have supported the concept of the executive branch enforcing national policy, and he probably would have opposed policies for expansive immigration. Still, given his deep sense of justice, he would likely have encouraged citizens to resist demagoguery.

And all of this might be wrong. All we’ve got are the words and ideas he left behind. As the Hamilton of the musical put it, “Uh, do whatever you want. I’m super dead.”

Question: A broader question to end on. Hamilton the musical is successful in part because it embraces the political. It reimagines a story about white men as one with an equal focus on women, told through hip-hop by a cast of actors who are predominantly Black, Indigenous or People of Color. The Supreme Court, on the other hand, struggles enormously to avoid the appearance of engaging in politics, while issuing rulings every year that transform the political landscape. Do you think that effort is sustainable? If not, are there lessons from Hamilton the justices should heed?

Answer: I think that, until quite recently, the justices definitely agreed with Aaron Burr that “talk less, smile more” was the way to go. I’ve often heard the justices comment that their opinions speak for them; their job is not to comment on the impact their decisions will have on American society. Still, I think the most important words in your question are “the appearance.” Until now, much of the American public, even educated members of it, would have described the court as politics-free, because the workings of the court have been so closely guarded and veiled in secrecy. Insiders have always known better. There has always been a political fight going on in the marble palace; it just rarely poked its head out the bronze front doors.

What I think we are seeing now is that door being opened. Before her death, Justice Ruth Bader Ginsburg had quite a lot to say about the abject politics of the court. A few days ago, Justice Samuel Alito gave an unquestionably political (and combative) speech to the Federalist Society. A few years ago, when it was reported that leaks had emerged about the Affordable Care Act case, I at first told friends not to believe it; leaks didn’t happen from the Supreme Court. I was wrong, at least prospectively. And the confirmation battles: Merrick Garland, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett – these have laid the political nature of the court bare for all to see.

The next step, I think, in maintaining appearances, will be through writing even more carefully crafted opinions than ever. To convince a public that increasingly cares about the court that the institution is apolitical, the justices will gird their opinions with empirical as well as legal support. And if, as some predict, individual liberties begin to fall, I think the public will engage directly in the political process that chooses Supreme Court justices and vote out those who manipulate or obstruct it.

Hamilton: An American Musical teaches, “You have no control: who lives, who dies, who tells your story.” As Professor Anthony Farley describes in Hamilton and the Law, judges and justices tell stories when they write majority opinions. Often, those in the dissent tell a very different version of the story. Litigants can’t control those narratives, and they are essential to outcomes. From a meta perspective, history will tell the story of this stormy period of Senate and court politics and rights-bartering.

So, the most important lesson the justices should heed? “History has its eyes on you.”

The post Ask the author: <em>Hamilton and the Law</em> (and the court) appeared first on SCOTUSblog.

The following is a series of questions posed by Ronald Collins to Ilya Shapiro concerning his forthcoming book, Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (Regnery Gateway, 2020).

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review. He is the co‐author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014). Shapiro has testified many times before Congress and state legislatures and has filed more than 300 amicus briefs in the Supreme Court. He clerked for Judge E. Grady Jolly on the U.S. Court of Appeals for the 5th Circuit.

Welcome, Ilya, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.

* * *

Question: What prompted you to write this book, and why now?

Shapiro: I’ve been a “professional” court-watcher for over a decade, and even before that was riveted by Supreme Court confirmation hearings whenever they came up. I recall once walking into a law firm partner’s office for a job interview and he had Samuel Alito’s hearings on TV; we watched for half an hour before getting on with the interview (I got the offer). I even own a complete bound set of volumes from the Robert Bork hearings — picked them up from a library that was discarding these treasures. But anyway, the battle over Brett Kavanaugh showed that the court is now part of the same toxic cloud that envelops all of the nation’s public discourse. I wanted to dive into why that is and whether it can be fixed. And after the central role the vacancy in Justice Antonin Scalia’s seat played in the 2016 election, I knew I had to get this out before the 2020 election.

Question: How would you summarize the thesis of your book?

Shapiro: Politics has always been part of judicial nominations, but we feel something is now different. The confirmation process hasn’t somehow changed beyond the Framers’ recognition, and political rhetoric was as nasty in 1820 as it is in 2020. Even blocking or not taking up nominees, as happened to Merrick Garland, is hardly novel. But all these things are symptoms of a larger phenomenon: As government has grown, so have the laws that courts interpret, and their reach over more of our lives. Senatorial brinksmanship is symptomatic of a problem that began long before Kavanaugh, Garland, Clarence Thomas or Bork: the courts’ aiding and abetting the expansion of federal power, and then shifting that power away from the people’s representatives and toward the executive branch.

As courts play a greater role, of course nominations are going to be more fraught — especially when divergent interpretive theories map onto partisan preferences at a time when our parties are more ideologically sorted than since at least the Civil War. But in the end, all the “reform” discussion boils down to re-arranging deck chairs on the Titanic, which isn’t the appointment process, but the ship of state. The basic problem we face is the politicization not of the process but of the product. The only way confirmations will be detoxified is for the court to rebalance our constitutional order by returning improperly amassed power to the states, while forcing Congress to legislate on truly national issues.

Question: What was one of the most important discoveries you made while researching this book?

Shapiro: American history is long enough that there’s little new under the sun. We think we’re at a period of heightened opposition to potential justices, but of 163 nominations formally sent to the Senate, only 126 have been confirmed, a success rate of just 77%. Much of this can be explained by party control of the Senate and White House. Historically, the Senate has confirmed fewer than 60% of Supreme Court nominees under divided government, as compared to about 90% under unified government. And nearly half the presidents have had at least one unsuccessful nomination, starting with George Washington and running all the way through George W. Bush and Barack Obama. Even qualitatively, I would put the Louis Brandeis nomination in 1916 ahead of modern battles in terms of controversy — and it took the longest time — even if he was ultimately confirmed by a more comfortable margin.

Question: There is a notable element of legal realism in your book, especially in the chapter titled “What Have We Learned?” All seven lessons you set forth there suggest there is no way out of the politicization of the judicial confirmation process. Is that your view? Might the real problem be not so much the confirmation process but the modern use of federal judicial review?

Shapiro: That’s exactly right. We have severe — and sincere — disagreements over the substance of constitutional law and methods for interpreting statutes, ones that can’t simply be waved away by invoking “norms” or “courtesy.” What courts decide really matters, so who decides also matters. I don’t think the problem is with “judicial review” as such — the Supreme Court really doesn’t invalidate many laws, and the Roberts court overturns precedents at a significantly lower rate than its predecessors — but it’s absolutely appropriate for senators (and voters) to debate the theories that potential nominees would apply. Given a finite number of seats, political clashes are unavoidable.

Question: The inside flap of your book states that the judicial-appointments process has been adversely affected by “decades of constitutional corruption.” Tell us about the nature of that corruption and when it began.

Shapiro: I would trace the corruption to what legal scholars call the “constitutional revolution of 1937,” but that goes beyond that year’s key cases of West Coast Hotel v. Parrish, Helvering v. Davis, Steward Machine Co. v. Davis, and NLRB v. Jones & Laughlin, as well as the previous year’s Butler v. United States, the next year’s United States v. Carolene Products, and the infamous Wickard v. Filburn (1942).

In 1935, President Franklin Roosevelt wrote to the chairman of the House Ways and Means Committee: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” Eventually, the court rendered constitutional limits on federal power unenforceable and made certain rights more equal than others. After the “switch in time that saved nine,” when the court began approving grandiose legislation it had previously rejected, no federal laws would be set aside as going beyond congressional power until 1995. But even the 1930s and ’40s don’t tell the whole origin story: If the Slaughterhouse Cases (1873) hadn’t eviscerated the 14th Amendment’s privileges or immunities clause, for example, we wouldn’t have the warped conception of unenumerated rights — “penumbras and emanations” and the like — that’s also central to confirmation battles.

Question: You argue that the court “has let both the legislative and executive branches swell beyond their constitutionally authorized powers.” Can you give us an example of this under the Roberts court?

Shapiro: The most obvious example is National Federation of Independent Businesses v. Sebelius (2012), in which Chief Justice John Roberts transmogrified Obamacare’s individual mandate penalty into a tax. It’s certainly gratifying to those of us in that fight that a majority of justices rejected the government’s assertion of power to compel commerce in order to regulate it. But justifying a mandate with an accompanying penalty for noncompliance under the taxing power doesn’t rehabilitate the statute’s abuses. It merely created a “unicorn tax,” a creature of no known constitutional provenance that will never be seen again. And by letting the law survive in such a dubious way, Roberts undermined the trust people have that courts are impartial arbiters, not political actors.

Question: You talk a lot about the administrative state (or, as you sometimes refer to it, a “faceless bureaucracy” or “alphabet agencies”). How does this relate to the confirmation process as you understand it?

Shapiro: The collection of ever-expanding powers in the administrative state has transferred decision-making authority to the courts. Indeed, the imbalance between the executive branch and Congress — especially the latter’s abdication of its leading constitutional role by delegating what would otherwise be legislative responsibilities — has forced the Supreme Court to decide complex policy disputes. What’s supposed to be the most democratically accountable branch has been avoiding hard choices since long before the current polarization.

Gridlock is a feature of a legislative process that’s meant to be hard, but it is compounded of late by citizens of all political views being fed up with a situation where nothing changes regardless of which party is elected. Washington has become a perpetual-motion machine and the courts are the only actors able to throw in an occasional monkey wrench. That’s why people are concerned about the views of judicial nominees — and why there are more protests outside the Supreme Court than Congress.

Question: During his 1987 confirmation hearings in the Senate, Bork violated every norm of modernity in word, demeanor, appearance and tactic. He did not feign meekness or prevaricate. He did not fully disavow his former views. He did not kowtow to the whims of his senatorial adversaries or play to the press. He remained conceited and confident throughout. And all of this in the face of a voluminous record of speeches, scholarly writings and judicial opinions certain to invite opposition. In short, Bork did not pretend to be the man he was not. The result: 58 senators voted against his confirmation and 42 for. As Judge Richard Posner viewed it: “He had posed as supremely apolitical, as just letting the chips fall where they may.”

Would you characterize Bork’s strategy as principled or foolhardy?

Shapiro: Both. A nominee has to understand that his or her only goal is to get confirmed, while Bork seemed to think he was there to pass an oral exam. The Justice Department would’ve coached him better, but this nominee didn’t want coaching, blowing off so-called “murder board” sessions. As Senator Paul Simon (D-Ill.) put it: “Bork tended to want to score debate points, rather than appeal to the Committee for votes.” But the White House also erred in its strategy, which was to portray Bork as neither a conservative nor a liberal — much like the “swing justice” he was nominated to replace, Lewis Powell. The demagogic attacks from Sen. Ted Kennedy (D-Mass.) and various left-wing groups caught the administration on its back foot.

Question: Building on the last question, and given where we are, it seems that the formula for any nominee to the Supreme Court who hopes to be confirmed is simple. Be evasive yet engaging. Let long-winded senators steal your time. Appear sophisticated, yet avoid controversy or complexity. Deliver soundbites instead of professorial gradations. And be sure to appear groomed, well-suited and TV-friendly.

Will we ever see an end to this in our lifetimes? If so, how? If not, why shouldn’t senators be even bolder in countering such “Kabuki dances,” as you label them?

Shapiro: Indeed, successful nominees talk a lot without saying much. Ruth Bader Ginsburg refined that tactic into a “pincer movement,” refusing to comment on specific fact patterns because they might come before the court, and then refusing to discuss general principles because “a judge could deal in specifics only.”

Around the same time, Elena Kagan wrote a law review article criticizing judicial nominees for being too cagey. But when she sat in the hot seat herself, she realized why they did so: There’s no incentive to be more forthright and thus open yourself to attack, and every incentive just to demonstrate deep knowledge and an easygoing manner.

So no, I don’t see a change possible, particularly when senators themselves have an incentive to collect clips of gotcha questioning for reelection or presidential campaigns, as we saw with Sens. Cory Booker (D-N.J.) and Kamala Harris (D-Calif.) at the Kavanaugh hearings. I mean, Sen. Josh Hawley (R-Mo.) can declare that he won’t vote for anyone who doesn’t explicitly come out against Roe v. Wade, but that seems like shooting yourself in the foot barring a huge Republican majority that can afford to lose moderate votes.

Question: Assume that the Democrats win the 2020 election, but in late November, one of the liberal members of the court steps down, and President Donald Trump promptly nominates a staunch conservative to replace them. Against the backdrop of the 2016 nomination of Garland, which you discuss in detail, what would you urge Senate Majority Leader Mitch McConnell to do?

Shapiro: As I discuss in my book, this is all about raw politics. The last time the Senate confirmed a nominee from a president of the opposing party to a high-court vacancy arising during a presidential election year was 1888 — that’s the Garland situation — but now the Senate and president are politically aligned.

Moreover, vacancies have arisen 29 times in presidential election years, during the administrations of 22 of the 44 presidents preceding the current one, and those presidents made nominations all 29 times. Nine times presidents made nominations after the election, in the Senate’s lame-duck session, and all but one of those was confirmed, including several after the nominating president lost the election. (Chief Justice John Marshall was one.)

So again, this is purely about politics, not law or precedent, and what McConnell will have to consider are such things as whether confirming someone would hurt the court’s legitimacy and ultimately whether the Democrats would pack the court in response. Of course, some on the left claim that all of the Republican-appointed justices are illegitimate for one reason or another, and McConnell can’t control the Democrats, who may add justices regardless. Judicial nominations are a winning issue for Republicans, so I say go for it.

Question: You seem cautiously amenable to the idea of term limits for the justices. What is your thinking in this regard?

Shapiro: “Amenable” is the right word. They’re probably not worth the effort to get a constitutional amendment, which I’m convinced would be required despite clever academic theories to the contrary. If the most common proposal, 18-year terms with a vacancy every two years, had been around the last few decades, the court’s makeup would hardly be different; there would now be three Bush II appointees, four Obama appointees, and two Trump appointees – in other words, still five Republican-appointed justices to four Democratic-appointed ones.

In the last 50 years, there have been 30 years of Republican presidents and 20 years of Democratic ones; if anything, liberal voices have been overrepresented. But even if term limits wouldn’t change the court’s decision-making, they might be worth trying anyway because at least there would be less randomness. As Orin Kerr put it: “If the Supreme Court is going to have an ideological direction — which, for better or worse, history suggests it will — it is better to have that direction hinge on a more democratically accountable basis than the health of one or two octogenarians.”

Question: So far as the judicial confirmation process in concerned, toward the end of your book you write: “I’ve come to the conclusion that we should get rid of hearings altogether, that they served their purpose for a century but now inflict greater cost on the Court, Senate, and the rule of law than any informational or educational benefit gained.” Do you think there is any real likelihood of this?

Shapiro: Well, there’s no law saying that the “advice and consent” process has to include hearings. The Senate didn’t even hold public hearings on Supreme Court nominations until 1916, and it wasn’t until 1938 that a nominee testified at his own hearing. But their utility has largely run its course at a time when nominees come with voluminous paper trails that are instantly accessible to all.

Maybe there would still be a need for closed sessions to consider the FBI’s background investigation, privileged documents and other ethical concerns, but the open hearings now produce more heat than light. It’s against the interest of the party not in control of the White House to dispense with the hearings — how else can their senators extract their pound of flesh? — but perhaps this is something that both parties can eventually agree on.

The post Ask the author: The evasive virtues and Supreme Court confirmation hearings appeared first on SCOTUSblog.

Steven Green is the Fred H. Paulus professor of law and director of the Center for Religion, Law & Democracy at Willamette University College of Law.

It is rare for two books on the same subject – and written by some of the nation’s leading scholars – to be published not only in the same year but practically in the same month. But that’s what has happened with two new works on the First Amendment’s religion clauses. (Possibly, there is less of a coincidence than meets the eye in that they share the same publisher: Oxford University Press.) Howard Gillman, who co-wrote The Religion Clauses: The Case for Separating Church and State (which is due out Sept. 1), is the chancellor of the University of California, Irvine, a political scientist by training and the author of several well-received books about the Constitution and the Supreme Court. His co-author, Erwin Chemerinsky, is the dean of U.C. Berkeley law school and is a leading expert on constitutional law through his scholarship, advocacy and commentary. And Jack Rakove, who wrote the recently released Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion, is a Pulitzer Prize-winning scholar of American intellectual history. When such outstanding scholars write new books about the history and meaning of the religion clauses, they deserve our attention.

The Religion Clauses and Beyond Belief, Beyond Conscience are very different books. The Religion Clauses is chiefly a critique of the current Supreme Court’s approach to adjudicating church-state conflicts, focusing primarily on case analysis and doctrine. Beyond Belief, Beyond Conscience is chiefly a historical analysis of the rise of the American concept of religious freedom. At the same time, the books share some common elements. The first is their timeliness, with both books filled with a sense of urgency. They both, in different ways, caution that the court’s interpretations of the religion clauses over the last decade or so have gone astray, historically and jurisprudentially. A second shared element is their critique – so well deserved – of the justices’ (mis)use of history in adjudicating church-state conflicts. And finally, both books conclude with pleas for rediscovering the positive values inherent in church-state separation.

Of the two books, The Religion Clauses assumes a more argumentative style, possibly reflecting Dean Chemerinsky’s legal expertise. At the risk of understating its comprehensive coverage, The Religion Clauses is in a sense a legal primer on the religion clauses. That is intended to be a compliment; one could read The Religion Clauses with little prior understanding about the concerns that motivated members of the founding generation, the modern development of church-state jurisprudence, or the competing perspectives that drive the debate today, and then afterwards, have a solid appreciation for those various issues.

Both the legally trained and lay reader should find The Religion Clauses approachable. It is well organized, with a lucid writing style and a careful and precise argumentation. It begins by discussing the recent transformation in church-state jurisprudence through decisions like Burwell v. Hobby Lobby Stores, Town of Greece v. Galloway, Trinity Lutheran Church v. Comer, Masterpiece Cakeshop v. Colorado Civil Rights Commission and American Legion v. American Humanist Association, an approach that has subordinated church-state separation to free exercise values. The book assigns responsibility for the jurisprudential shift to the conservative make-up of the court and to the growing rebuke of church-state separation by conservative jurists, politicians and members of the academy.

It then segues to a chapter on the historical context behind the adoption of the religion clauses. While the authors do not argue that a consensus existed among the Founders over the principle of church-state separationism, they do demonstrate the strength of the disestablishing impulse, the dynamic evolution in attitudes toward church-state relations, and the agreement on the idea of a secular identity for the new government. The authors argue strongly for a non-originalist approach to history, one that considers only the broad principles that have vitality and relevance today.

The next two chapters consider, in turn, the establishment clause and the free exercise clause. Here the book becomes more doctrinal, examining the leading court decisions for each clause through a balanced analysis, with each chapter then concluding with the authors’ perspective. The former chapter ends with a plea for a separationist approach, arguing that it promotes pluralism, inclusion and the independence of religion, as well as the integrity of secular government. A “separationist approach is consistent with advancing [a] more inclusive vision of religious liberty in our constitutional system,” Gillman and Chemerinsky write. The latter chapter concludes by advocating against granting exemptions from neutral laws and regulations for religiously motivated actors. Here, the book criticizes the Hobby Lobby line of decisions that have expanded free exercise protections at the expense of salutary policies intended to provide greater access and equality. The final chapter offers a final plea for efficacy of church-state separation, insisting that separationism does not promote hostility toward religion but, again, fosters equality and inclusion.

One critique of the book — or, at least, an observation about what is otherwise a balanced and convincing presentation — is in how it addresses the issue of the distinctiveness of religion. In the establishment clause chapter, the authors highlight religion’s distinctive quality in arguing against government financial aid or permitting government’s use of religious symbols and rhetoric. In the free exercise chapter, however, the authors downplay religion’s distinctiveness in their argument against providing religious exemptions to neutral regulations, insisting that exemptions “give[] undue favoritism to people with religious convictions over people with similarly strong secular convictions.” That tension can be reconciled, in part, by distinguishing between exemptions/accommodations that are relatively cost-free and chiefly enhance pluralism, and those that transfer costs to third parties and chiefly reinforce positions of privilege, a distinction that the authors acknowledge.

Beyond Belief, Beyond Conscience is a different book, structurally and thematically. Whereas The Religion Clauses reserves only one chapter to discussing the relevant history, with the remainder focusing on case analysis and argument, Beyond Belief, Beyond Conscience has the opposite organization. It is chiefly a history of the development of the idea of religious liberty, with the final chapter being reserved for comparing that history against the modern court’s application of that principle. The book’s subtitle – The Radical Significance of the Free Exercise of Religion – is somewhat misleading. While the primary focus of the study is to trace the evolution of conscience rights from a position of persecution, to toleration, and then to equality, Professor Rakove does not limit his coverage solely to free exercise matters but spends considerable space analyzing the disestablishment impulse as well. He sees the two impulses as interrelated and mutually reinforcing: “Disestablishment promoted free exercise, and free exercise made disestablishment superfluous.”

For a mid-sized book (186 pages), Beyond Belief, Beyond Conscience is quite comprehensive in its coverage. For much of the book, Rakove uses James Madison and Thomas Jefferson as our guides – an approach that will likely draw the ire of conservatives who argue that the attention (and credit) given to these two Founders is overdone. But Rakove demonstrates that that attention and credit is well deserved. The book traces the gradual acceptance of the ideas of religious toleration and free religious conscience, crediting both Enlightenment and pietistic traditions. Those impulses, combined with the ever-expanding religious pluralism of colonial British America, made religious equality necessary, although Rakove shows that it wasn’t necessarily inevitable. Madison and Jefferson then built on that foundation, with both men championing the idea of free exercise as the most visible manifestation of freedom of conscience and as a means – though not the only means – of countering the corruptions and inequities of religious establishments. Yet Rakove shows that Madison and Jefferson did not advocate for an unrestrained free exercise right or abandon their suspicions of religious authority and religious factionalism. For Madison, religious excesses were to be controlled through the marketplace of competition.

After a chapter on the 19th century — when Madisonian-Jeffersonian notions of religious equality and government disengagement were subordinated to a de facto Protestant “moral establishment” — Beyond Belief, Beyond Conscience transitions to a final chapter on modern free exercise development and current controversies. The first half of that chapter is relatively conventional; the second half is where Rakove uses his authority as a leading historian to critique the more recent shifts in free exercise jurisprudence. Like Gillman and Chemerinsky, Rakove questions the historical basis and normative efficacy of an emboldened, exemption-driven application of free exercise: “[T]he [modern] advocates of accommodation and exemption are not concerned with the issues that troubled our ancestors. It is not the freedom to believe or disbelieve or to disseminate religious truths that bothers them.” He also laments, although less prominently than in The Religion Clauses, the declining appreciation for church-state separation among members of the court and the academy. Rakove also rejects an originalist approach, and he has a subtle but clear message for those conservatives who use it in their quest to remake church-state jurisprudence: You have your history wrong – this is not Madison’s idea of free exercise.

Though different in their coverage and approach, The Religion Clauses and Beyond Belief, Beyond Conscience serve as complementary bookends to the current debate over church-state matters. They are worth having on anyone’s bookshelf, but only if they are read.

The post Book review: In two new scholarly works, a shared critique of the court’s approach to church and state appeared first on SCOTUSblog.

“[A] man of high ambitions … must face the loneliness of original work.”
— Oliver Wendell Holmes, Brown University Commencement Address (1897)

The following is a series of questions posed by Ronald Collins to Catharine Pierce Wells in connection with her new book, “Oliver Wendell Holmes: A Willing Servant to an Unknown God” (Cambridge University Press, 2020).

Catharine Pierce Wells is a professor of law and a Law School Fund research scholar at Boston College Law School, where she teaches and writes in various areas of legal theory, including pragmatic legal theory, feminist jurisprudence and civil rights theory. She received her law degree from Harvard Law School and also earned an M.A. and Ph.D. in philosophy from the University of California, Berkeley.

Wells’ articles on Justice Oliver Wendell Holmes have appeared, among other places, in the Journal of Supreme Court History. Her new book was published in the Cambridge Historical Studies in American Law and Society series, edited by Christopher Tomlins.

Welcome, Catharine, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

* * *

“Holmes is on the way of becoming one of the great representative figures of his nation, a type of man which has so far been rare in American history.”
— Max Rheinstein (1943)

“[A]re we in danger of accepting him too uncritically?”
— Max Lerner (1943)

Question: These two quotes reveal something of the spectrum of views on Holmes – Olympian on the one hand, dark and dangerous on the other. Before we turn to your book, what is your general sense of this range of opinions?

Wells: As you say, Holmes is a controversial figure. What is surprising, of course, is not so much the range of opinions but the passion that animates them. While there are some moderate voices, assessments of Holmes and his influence have tended towards the extreme. They run the gamut from “he is the greatest jurist who ever lived” to “he is a fascist and a dangerous influence on American law.” It is hard to imagine John Marshall or William Howard Taft exciting such passionate responses.

One common explanation for the intensity is that Holmes became the symbol of generational conflict among law professors. One generation mythologized Holmes as its spokesman and leader, while a younger generation rebelled by seeking to desecrate his image. But this explanation does not account for the fact that Holmes was controversial even in his own time.

I think the true explanation is somewhat simpler. Holmes was an astute observer. He saw all sides of human life — its heroism and villainy, its successes and failures, and its joy and despair. In addition, he made no excuse for doing what he thought was right, and he did not mince words when saying what he honestly thought. To put it in Thoreau’s words, Holmes was a man who marched to the beat of his own drum. Some people think of this as a sign of courage; others as an unwarranted smugness. The former group tends to see in Holmes a captivating idealist; the latter group may see nothing but a cranky old man. The truth, of course, is somewhere in between.

Question: In an essay published last year in the book “The Pragmatism and Prejudice of Oliver Wendell Holmes,” you wrote: “No expert on American law has been subject to as many differing interpretations as [Holmes].” In your own book, you concede that “it is hard to have a fresh outlook” on Holmes. Given that, how does your interpretation of the man and his legacy differ from what has already been offered up in the 6,275 biographical pages printed in books about Holmes?

Wells: What compelled me to write about Holmes was the feeling that, despite all that had been written, no one had gotten it quite right. I first read Holmes after completing a dissertation on Charles Peirce, the founder of American pragmatism.

Pragmatism is a complex philosophy. The men who formulated it were intelligent and well educated (even if self-educated) in philosophy. As philosophers, they had a somewhat contradictory vision. On the one hand, they sought to provide an analysis and justification of the scientific method. On the other, they were committed to recognizing the limits of scientific thought. Disagreeing with Kant, they believed that there was no objective foundation for science. Instead, they saw the value of science in its effectiveness as a guide for human action.

The essential insight of the pragmatists – whether Peirce, William James or John Dewey – was their recognition of the value of the subjective aspects of human experience. Thus, they did not view feelings and speculation as degraded junior partners to rational science. Rather, they understood them as an essential ingredient in the construction of meaning. As lawyers looked at Holmes, they did not see this aspect of his philosophy. Even Professor Thomas Grey, who recognized Holmes as a pragmatist, seemed to ignore it. It was this omission that challenged me to write one more book about Holmes. It was written in the belief that one had to take Holmes’ mystical statements seriously, and to treat them as an integral part of his pragmatism.

Question: The subtitle of your book is something of a riddle – “A Willing Servant to an Unknown God.” Can you unravel that a bit for us?

Wells: Yes, it is a bit of a riddle, but one that is central to Holmes’ life. Remember he was descended from Puritans who thought that the meaning of life was to serve God. But he was also an agnostic who lived in a city where zealous Calvinism had morphed into a more liberal Unitarianism. He did not believe in the biblical God, preferring instead to think broadly in terms of an unknowable power that transcended the physical world. Thus, he found himself inhabiting a paradox. On the one hand, he believed in serving God, and on the other, he had no sure knowledge of God or what it meant to serve God.

Some members of his generation resolved this conflict by embracing a faith that defied skepticism. Others simply shrugged, finding it impossible to serve a God they did not understand. But Holmes followed Ralph Waldo Emerson on a harder, middle road. He dedicated himself to duty, but at the same time recognized that the nature of his duty could only be gleamed by momentary insights. The best he could do was to remain open to his experience and allow himself to be guided by the love he felt for honor and country.

Question: As you see it, how does Holmes’ life experience (especially his Civil War experience) connect to his philosophy and jurisprudence?

Wells: The standard answer to this question is that three years of blood and gore made him cynical and detached. This is the central narrative for those who think that Holmes lacked the idealism necessary for a legal legend. But I disagree. One can see a similar detachment in others of his generation who did not go to war. Think, for example, of his friend Henry Adams or his cousin, the historian John Torrey Morse.

As I began to reconstruct his experience in the war, what stood out to me was the constant back and forth between the horrors of the front and the comfort of home. He was wounded three times and each time spent a significant period in Boston. We can see in his letters that he came to realize the unbridgeable gap between the war as it was understood on the battlefield and the war as it was understood by the civilians in Boston. He also understood that the soldiers of the South were as idealistic and committed to justice (their vision of justice) as he was. These were formative experiences. Through them, he learned in the most dramatic fashion that perception depends on context.

What we see, sense and understand is always dependent upon perspective – the way in which our past constructs and illuminates present experience. This emphasis on perspective was an important element of Holmes’ skepticism. On the one hand, he authentically held certain beliefs. On the other, he understood the substantial possibility that some or all of these beliefs were wrong.

Question: You write that “we need to reject the simple image of Holmes as a [legal] realist.” Please explain why you think that common portrayal is inaccurate.

Wells: When we approach Holmes through the lens of contemporary legal theory, it is natural to think that he must be either a formalist (someone who believes that legal decision-making is the result of applying logic to precedent) or a realist (someone who thinks that judges should decide on the basis of sound social policy). But this dichotomy overlooks a substantial middle ground.

Holmes was not a realist; he did not believe that judges should impose their own views of social policy. Nor was he a formalist, as is obvious from his criticism of Christopher Columbus Langdell.

Holmes understood something important about the common law. He saw that it was not the logic of precedent that constrained legal decision-making. Instead, he viewed the common law as a tradition with its own customs, norms and vocabulary. Judges were participants in the tradition and had to abide by its rules – both stated and unstated.

Sometimes, but rarely, there would be a right answer to a legal question because there was a stated rule that dictated the result. Mostly, however, the constraints were less formal. There might be a right answer or a range of right answers because the law dictated the form in which questions could be raised, the strategies that might be deployed in analyzing legal problems, and the vocabulary to be used in their resolution. This way of looking at the common law is neither realist nor formalist as those terms are understood today.

Question: You note your interest in Holmes’ “role as a judge” and your consequent focus on his method of deciding cases. One of the opinions that you dwell on is Holmes’ 1896 dissent in Vegelahn v. Guntner. Why is that case important, and what does Holmes’ dissent tell us about his judicial method?

Wells: I focused on the Vegelahn opinion because it illustrates the type of constraint I just described. It is a clear example of Holmes’ use of a common law method in deciding cases of first impression. In this case, there is no stated rule that determines the outcome. Nevertheless, Holmes’ approach in this case is a good example of how adherence to the common law – broadly understood – commits him to a specific outcome.

The method is dialectical in the sense that it cycles between form and substance. His first move is to frame the issue in traditional tort terms. Then he suggests that privileges in tort cases are always a matter of substantive policy. The next step is to compare the case to other cases that seem to raise the same issue of substantive policy. He then applies the vocabulary and doctrines embodied in this latter group of cases to the case at hand. He reformulates the issue through this lens. Once this is done, he is able to decide the case based upon the fundamental principle of the common law – like cases must be decided alike.

Question: All the chapter headings in the first part of your book come from lines in Holmes’ 1884 Memorial Day speech. In that speech, Holmes spoke words that would reappear in President John F. Kennedy’s 1961 inaugural address. Said Holmes: “[I]t is now the moment when by common consent we pause to become conscious of our national life and to rejoice in it, to recall what our country has done for each of us, and to ask ourselves what we can do for the country in return.”

Why is that 1884 speech so significant to your interpretive project?

Wells: I used the speech in the Prologue because it so clearly expresses Holmes’ basic attitude toward life. In it, we see the heart of his creed:

[Memorial Day] embodies … our belief that to act with enthusiasm and faith is the condition of acting greatly. To fight a war, you must believe something and want something with all your might. (This you must) do to carry anything else to an end worth reaching. More than that, you must be willing to commit yourself to a course, perhaps a long and hard one, without being able to foresee exactly where you will come out. All that is required of you is that you should go somewhither as hard as ever you can. The rest belongs to fate. One may fall – at the beginning of the charge or at the top of the earthworks; but in no other way can we reach the rewards of victory.

This summarizes not only his attitude toward fighting a war, but also his approach to studying law. I used phrases from the speech as chapter headings as part of an overall intention to tell Holmes’ story through his own words.

Question: You write about Holmes: “How was it … that the young man who had gone to war to fight for abolition had come to the Court forty years later seemingly uninterested in the project of restoring basic freedoms for those who had been emancipated?” Might you say a few words about this apparent conflict?

Wells: Such a hard question. Perhaps the simplest answer is that the conflict is based upon his differing roles as soldier and judge, but this could use some elaboration.

Holmes favored abolition, but that was not the main reason he enlisted in the Union Army. He explained his reason in the Memorial Day speech:

I think the feeling that a man ought to take part in the war unless some conscientious scruple or strong practical reason made it impossible was right – in the South as in the North. I think that, as life is action and passion, it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived.

Note that his reason for enlisting was not necessarily a hope that his action would help end slavery. To some extent, it reflected his desire to participate in something larger than himself. This was a touchstone throughout his life — full participation was a continuous goal. Thus, he threw himself into learning the law with total and intense commitment.

The key to understanding Holmes is to understand how he thought about his place in the world. He often said that we should not set ourselves up as little gods outside the universe. By this he meant that individuals should not imagine that they are masters of the universe, that they can “improve” the world by imposing their own ideals. As a result, he did not believe in mandates for reform. He was a judge. That was his job, and doing one’s particular job was Holmes’ highest ideal. By the time Holmes got to the Supreme Court, he knew what this meant. His role required him to participate in the grand sweep of the common law, and this meant conformity to a very specific set of ideals. Common law judges, he believed, should resolve disputes by upsetting surrounding customs and usages at little as possible. He may have disapproved of slavery. He may have thought that Southern efforts to restrict voting rights were unfair. But it was not his personal beliefs that were at issue. As a judge he believed, rightly or wrongly, that he had no power or authority to overturn well-established social arrangements.

In our time, young people are idealistic; they often become lawyers because they want to change the world. But their desire would have puzzled Holmes. It was just not the way he thought about things. Possibly our attitude is better, but thinking about Holmes has convinced me of at least one thing – that arrogance and hubris are attached to a commitment to social change.

Question: In his 1960 Oliver Wendell Holmes Devise lecture, Francis Biddle (who once served as a secretary, the former term for a law clerk, to Holmes) took aim at the growing ranks of critics of his former boss. That criticism began in in earnest in 1941. By 1945 it was so strong that the American Bar Journal published an article by Ben Palmer (a prolific Minneapolis corporate lawyer) titled “Hobbes, Holmes and Hitler.” A more judicious, but nonetheless highly critical, portrait of Holmes was painted by Professor Albert Alschuler in his book “Law Without Values: The Life, Work, and Legacy of Justice Holmes” (2002). And that criticism continues today on various fronts. In your opinion, is any of the harsh criticism warranted?

Wells: In 2002, I wrote a review of Professor Alschuler’s book; it was titled “Reinventing Holmes: The Hidden, Inner, Life of a Cynical, Ambitious, Detached Old Judge without Values.” As the title suggests, I do not think that Alschuler’s negative assessment of Holmes is fair. His book is one of a number of works that distort Holmes’ record by cherry-picking quotes and discussing his worst opinions. Nevertheless, I do concede that there is a dark side to Holmes, especially in his later years.

The question is whether this dark side constitutes a real defect in character. What exactly were his “crimes?” In 50 years on the bench he wrote a few bad opinions – opinions that are “bad” in the sense that, 100 years later, we strongly disapprove of them. I wonder if Alschuler or any of the others could do better. I am pretty sure I could not.

Question: Ralph Waldo Emerson (philosopher, poet, essayist, lecturer and leader of a transcendentalist movement) receives a good dollop of attention in your treatment of Holmes. Tell us how you think he influenced the justice.

Wells: Holmes first read Emerson in his early teens. In his later years, he would say that it was Emerson who had stood the test of time. Emerson’s influence was important because it shaped the way in which Holmes thought about the world. We can see this clearly if we contrast Emerson’s views with those of the British empiricists. The empiricists thought of human beings as observers. They equated experience with the passive reception of sense data. Emerson, on the other hand, thought of the natural world as a teacher. It interacted with human spirits, teaching them not just about the characteristics of a physical world but also about the meaning of a greater, transcendent world. Experience, he thought, was a relationship between himself and a larger world of which he was a part. This difference affected Holmes’ understanding of law in many ways. The British empiricists, for example, thought that experience taught only the “facts.” For Emerson and Holmes, it taught not only facts but also values. We should learn from our experience not just how to do things but also what is worth doing. This is an especially important insight for one who is studying law. Note, for example, how this larger conception of experience enlightens Holmes’ famous phrase – “The life of the law has not been logic: it has been experience.”

Question: You devote time and attention to a two-volume book Holmes read in 1897, written by Fridtjof Nansen, the Norwegian explorer, scientist, diplomat and Nobel Peace Prize laureate, and titled “Farthest North: Being the Record of a Voyage of Exploration of the Ship FRAM, 1893-96 and of Fifteenth Months’ Sleigh Journey.”

Can you give us a nutshell account of why this wild-eyed explorer caught Holmes’ – and your — attention? 

Wells: It is obvious why Holmes liked it. At the turn of the century, a trip to the North Pole was the greatest possible adventure, and Holmes admired action and passion. Nansen’s trip was filled with insurmountable obstacles and seemingly certain death. I think Holmes saw this narrative as the ultimate expression of a life well lived. He also clearly identified with Nansen’s experience, thinking not only of his trials during the Civil War, but also of the rather grueling trip he took through the Alps with Leslie Stephen.

In his 1897 Brown University commencement speech, Holmes used Nansen’s book as a metaphor for his own life. In the speech, he compared the perils of Nansen’s journey with his own lonely struggle to understand the common law and the universe that it illuminated. Like Nansen, he saw his journey as a series of difficult challenges that required heroic efforts.

Question: The second half of your book makes ample use of the Brown commencement speech. All the chapter headings in Part Two come from lines in that speech. Apart from Max Lerner’s inclusion of it in his 1943 book on Holmes, that speech has received relatively little attention from Holmes scholars. What made you decide to focus on it?

Wells: When I first read the speech, I was struck by the fact that it so accurately described Holmes’ intellectual life. It is easy to overlook the fact that, from 1865 to 1880, Holmes spent virtually all his spare time studying law. Essentially, he was glued to a seat in the Social Law Library in Boston reading dusty legal texts and wondering what they said about the human condition. This was lonely work, and like Nansen’s trip to the pole, it was not accompanied by assurance of success. I wanted to emphasize this aspect of Holmes’ life, because it was so formative for him. If you ignore this period of his life, it is easy to suppose that Holmes was just one more well-bred, well-connected young man who was in the right place at the right time to make his mark on the world.

Question: On a chilly Friday in March of 1935, there was a service for Holmes at All Souls Unitarian Church, located at 16th and Harvard Streets NW in Washington, D.C. You fold Unitarianism into your biographical/jurisprudential account of Holmes. Please tell us more.

Wells: Someone in Washington once asked Fanny Holmes about their religious affiliation. She said that they were Unitarians, and added: “In Boston, one has to be something and Unitarian is the least you can be.” The Holmes were not joiners. They did not actively involve themselves in religious or social organizations. Nevertheless, as Fanny’s statement indicated, they were comfortable with the agnosticism of the more liberal wing of the Unitarian Church.

Question: For a variety of political reasons, it is hard to imagine that any modern president would nominate a jurist in the jurisprudential mold of Holmes to the Supreme Court. The “public,” you observe, “has come to understand ‘good’ judging in terms of political ideology. This is a tragedy. … [But] Holmes reminds us there are alternatives” – namely, “acting impartially.” Absent that, we would confront a troubling prospect: “With ten more years of ideological struggle, how much legitimacy will the Court retain?”

If a Holmesian jurist were to be nominated and confirmed, would such a justice have any real allies on the Roberts court? Or would they be no more than an anomaly, without even a Justice Louis Brandeis to join in thoughtful dissent? Put another way: Are the days of a Holmesian jurist long past, both as nominee and justice?

Wells: Holmes placed law above politics without exception. As you know, he dissented in Northern Securities v. United States (1904) soon after he was appointed by Theodore Roosevelt. This was no small matter, as can be seen in a March 24, 1904 press account in The Citizen Republican:

The president is angry at Justice Holmes … (for his) dissenting opinion in the Northern Securities case, and Mr. Roosevelt is not going to any great trouble to conceal his displeasure. The trouble with Justice Holmes was that he reached his conclusion with his own interpretation of the law, instead of deciding the question as Mr. Roosevelt wanted him to.

And Northern Securities was just the tip of the iceberg. Over and over again, he made decisions that he knew would be unpopular among those in power.

Of course, the situation is different now. The country is polarized and there is no one opinion that pleases the powers that be. But the basic lesson is the same – putting law over politics would strengthen the Supreme Court’s ability to fulfill its constitutional function. This notion has support among several of the justices, including Chief Justice John Roberts.

Unfortunately, there are countervailing factors. Bickering over abortion and gun rights has created a sense that law is irrelevant to constitutional decision-making. In addition, the court continues to make openly partisan decisions, inserting itself into the very heart of the electoral process by explicitly benefitting one party over the other. Bush v. Gore (2000) is an example, but there are others dealing with voting rights, campaign finance, etc. In each of these cases, the Supreme Court could have emphasized its neutrality by deferring to state courts or to the Congress. To make matters worse, the president unequivocally promised that he would make appointments that had been individually approved by one of his constituent groups. Obviously, these factors are very harmful to the credibility of the court.

Question: Thomas Jefferson wrote: “We hold these truths to be self-evident.” Holmes countered: “No concrete proposition is self-evident, no matter how ready we may be to accept it.” Do you think those two statements can be reconciled? If not, what does that tell us about Holmes’ grand view of things?

Wells: Holmes and the other pragmatists adopted Alexander Bain’s definition of belief as something upon which one was prepared to act. Looked at in this way, we understand that even Jefferson did not believe his “self-evident” proposition. Had Jefferson acted on it, he would have freed his slaves, but infamously he did not.

It is easy to assemble a number of positive qualities and say that we should all aspire to them. Perhaps, for example, it is self-evident that we should all eat healthy meals. But this statement does not tell us what a healthy meal is, nor does it do much to change unhealthy eating habits. It is not, in Holmes’ terms, a “concrete” proposition. Aspirations of this type have an obvious power to command acceptance, but acceptance does not always result in a commitment to act. When the Supreme Court decided Dred Scott v. Sandford (1856), for example, it simply overruled one of Jefferson’s self-evident propositions.

Then again, there are times when what is aspirational becomes real. One example of this was a suit by Quock Walker, an enslaved African American who sued for his freedom. The suit was based on the Massachusetts state constitution, which had been adopted a year earlier. He relied on a 1780 provision, similar to the one in the Declaration of Independence, which provided: “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”

Based on that provision and good lawyering, a jury found in Walker’s favor, ending the custom of slavery in Massachusetts. In Commonwealth v. Jennison  (1783), the state’s highest court agreed. For the Massachusetts court, the idea that all men are created equal was a concrete proposition that had consequences for legal decision-making. At the same time, we must recognize that as the proposition became more concrete, it also became more controversial and less self-evident.

Ron, I thank you for this opportunity to discuss my book on Holmes. 

The post Ask the author: Justice Oliver Wendell Holmes and “the loneliness of original work” appeared first on SCOTUSblog.

The following is a series of questions posed by Ronald Collins to Renee Knake Jefferson and Hannah Brenner Johnson in connection with their new book, “Shortlisted: Women in the Shadows of the Supreme Court” (New York University Press, 2020), which tells the untold stories of women that presidents considered as justices for the Supreme Court in the decades before Sandra Day O’Connor’s confirmation.

Renee Knake Jefferson is a professor of law and the Joanne and Larry Doherty Chair in Legal Ethics and Director of Law Center Outcomes and Assessments at the University of Houston Law Center. She is an author of two casebooks: “Professional Responsibility: A Contemporary Approach” (2020) and “Legal Ethics for the Real World: Building Skills Through Case Study” (2018).

Hannah Brenner Johnson is Vice Dean for Academic and Student Affairs and an associate professor of law at California Western School of Law. Her research interests include gender-based violence and gender inequality in the legal profession.

Johnson and Jefferson are also the authors of “Gender, Power, Law & Leadership” (2019).

Welcome, Renee and Hannah, and thank you both for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.

* * * 

Question: Yours is a collaborative effort. Tell us about that and how the two of you work.

Jefferson & Johnson: We have a longstanding friendship and collaborative working relationship that extends over the course of the last decade to the time when we both taught at Michigan State University College of Law. Our first research project grew out of personal hallway conversations and emails that we exchanged in the year between Justice Sonia Sotomayor’s nomination and confirmation to the Supreme Court in August of 2009 and Justice Elena Kagan’s nomination and confirmation in 2010.

We were both shocked by some of the media coverage of these two incredibly qualified women as they were being vetted for a position on the nation’s highest court (things like commentary on their sexuality, appearance and marital status). These conversations led us to create an empirical research project and, in its wake, solidified our relationship as both co-authors and friends. It also provided opportunity for our children to develop their own friendships as we spent time writing together and traveling to present our scholarship at conferences, often with the kids in tow.

In those early years we also co-directed the Frank J. Kelley Institute of Ethics at Michigan State and planned a number of conferences, including a symposium that addressed gender inequality in the legal profession. And of course we began working on the shortlisted project. We’ve stayed committed to this work, and our collaboration has continued even after moving across the country to join the faculties at different law schools. Our writing process may be different from how others engage in collaborations; we have long enjoyed sharing drafts of our work and editing each other’s words early on in the process. This was intimidating the very first time we started writing together, as the sharing of preliminary unedited drafts requires a certain vulnerability; but we learned that we could trust each other.

We believe this practice leads to a more uniform voice for all of our work. Often, when we look back at our work, it is impossible for either of us to remember who wrote what. True to our practice, we took the same approach in answering the questions for this Q&A!

Question: Your book takes a close look at the stories of women who were considered – but not selected – for a seat on the U.S. Supreme Court. In the last chapter you offer eight strategies “for counteracting the biases and prejudices that endure” against professional women in largely male-dominated fields. Is that your target audience?

Jefferson & Johnson: Our target audience is fairly broad but yes, it definitely includes women who are navigating their professional paths. We are also trying to reach those who occupy positions of power and have the ability to help move women from shortlisted to selected. It is important to note that while some of the strategies we identify may be useful on an individual basis, we are perhaps even more interested in encouraging more systemic or structural change. Much of the book, though, will appeal to anyone interested in the history of this country or the Supreme Court selection process.

We also wrote the book with our children in mind as the audience, though when we started our youngest couldn’t even read yet! But we knew our daughters and sons would grow up in a world in which gender inequality endures. We wanted them to be inspired by the histories of these trailblazing women and to equip them with strategies for the work that remains. So, needless to say, our target audience is quite broad. And it’s been a particular joy to see our now-teenaged children reading the book.

Question: This book has its empirical roots in a study the two of you conducted about gendered portrayals of Supreme Court nominees. Tell us about that.

Jefferson & Johnson: As we mentioned, our first interaction with each other involved our shared outrage surrounding the media’s sexist coverage of Supreme Court nominees. We channeled this energy into a research study that explored how the media portrayed nominees to the Supreme Court as far back as President Richard Nixon’s efforts to fill the vacancies that ultimately went to William Rehnquist and Lewis Powell.

This project involved the systematic evaluation of over 4,000 newspaper articles published in the New York Times and Washington Post. We read and coded every single article for a series of variables that ranged from the sex of the reporter to whether the article mentioned the nominee’s appearance, sexuality, parental status and more. We surmised that the way Supreme Court nominees were being discussed in mainstream media would reveal the experience of women leaders generally and provide insight into the barriers and obstacles that impede their advancement into positions of leadership and power.

The study exposed a pattern of gendered portrayals of the female nominees. It also uncovered long-forgotten presidential shortlists, one of which included two women a decade before O’Connor became the first woman to join the Supreme Court. We immediately wondered, were other women considered? Who was the first president to include a woman on his shortlist? This book shares what we discovered as we searched for answers.

Question: On October 14, 1971, there was an unsigned piece in the New York Times on potential Supreme Court nominees Nixon was then considering. Share with us how that fits into your experience in writing “Shortlisted.”

Jefferson & Johnson: It was in the midst of our Supreme Court media study that we stumbled upon that article. We were shocked to learn that Nixon had shortlisted Sylvia Bacon, a judge from Washington, D.C., and Mildred Lillie, a judge from California, as he was faced with two vacancies on the court. We had never heard of these women and were unaware that any women had been considered for the court before O’Connor. We were shocked at the way Lillie was described by the author as having “maintained a bathing beauty figure.” It was absurd that an individual considered as a nominee for the nation’s highest court would be critiqued based on her appearance in a swimsuit. We also were struck by the author’s reference to her childless status.

Although we understood that this commentary was consistent with the pervasive sexism of that era (and the findings of our media study), we were more curious about the notion that other women had been shortlisted before O’Connor. And so began our journey through presidential papers, news accounts and private archives. We learned that indeed, nine women had been shortlisted but never selected for the Supreme Court, dating back as far as the 1930s.

Question: You acknowledge your indebtedness to Professor Christine Nemacheck. What was her work and how did it influence yours?

Jefferson & Johnson: Unlike for other positions in government, there is no unified system of selecting—or shortlisting—individuals to serve on the Supreme Court. In fact, the Supreme Court judicial selection process is well known by scholars to be one of the most difficult to study. Presidents have not kept uniform records of whom they considered for the court. President Donald Trump was the first to make public his shortlist, which was prominent in his campaign and officially posted on the White House website after his election.

Nemacheck is a political scientist who has researched Supreme Court nominees and, as a starting place, we relied on her excellent book, “Strategic Selection: Presidential Nomination of Supreme Court Justices From Herbert Hoover Through George W. Bush,” to discern who, exactly, may have appeared on presidential shortlists. However, we departed from Nemacheck’s method in two places. We identified Florence Ellinwood Allen, and not Soia Mentschikoff, as the first woman to be shortlisted, and added Sylvia Bacon to the list. Through this project we developed a profound appreciation for historians and scholars like Nemacheck, as it can be incredibly challenging to piece together accurate reflections of the past. We discovered competing accounts of history and tried to point these out to our readers.

We included a note about this process in the book’s appendix, and call for other scholars to continue this effort to better account for untold and/or long-forgotten aspects of our history, especially women’s history.

Question: A number of women are profiled in your book. How do these women fit into what you refer to as “collective storying telling”? Tell us more about what you mean by that and your call for systemic change.

Jefferson & Johnson: In addition to the nine shortlisted before O’Connor, we also include three women who appeared on President Ronald Reagan’s subsequent shortlists and the five women who went on to be nominated. Each of the women profiled in our book could be the subject of an entire research study. They are all incredibly gifted, accomplished, complex women who have blazed uncharted paths into positions of leadership and power. Some have previously been studied, though only two of the women shortlisted before O’Connor have been the subject of books. We believe that one of the most powerful aspects of this project is the collective story that we tell about this cohort of women who were qualified to serve on the Supreme Court, but never selected.

We have written about common themes that unite them, but in many respects they could not be more different from one another. They represent, collectively, the importance of diverse representation on the Supreme Court and beyond. In telling their stories in this way, we uncovered a phenomenon we did not set out to find—what we define as a nominee who is “qualified for a position but not selected from a list that creates the appearance of diversity but preserves the status quo.”

This concept of being “shortlisted” helps explain why it took so long for a woman to make it onto the court, and we think that it also helps explain why women are not reflected in numbers equal to men in all positions of leadership and power. It’s not the only explanation, but it is one structural source of continued inequality. If one only looks at an individual woman’s story, it’s hard to see this phenomenon. But looking at their stories together? It is impossible to ignore it.

Question: There are some notable female appellate judges who were never formally shortlisted but were informally considered and whose names circulated in the press. Can you tell us a little bit about those women and their fates?

Jefferson & Johnson: Our list of shortlisted women in the book includes only the women for whom we could find actual documentation of being formally considered by a president. But, absolutely, as you suggest, there were a number of other exceptionally qualified women whose names were circulated in the media and also sent to presidents for consideration, including Chief Judge Alice Batchelder of the U.S. Court of Appeals for the 6th Circuit, Priscilla Owen of the U.S. Court of Appeals for the 5th Circuit, Shirley Hufstedler of the U.S. Court of Appeals for the 9th Circuit and Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit, just to name a few. President Jimmy Carter was widely known to have considered Hufstedler as his first choice for the court, but of course he never had a vacancy to fill.

Question: Share with us how your example of Carter, who never nominated anyone to the Supreme Court, and Judge Amalya Kearse, who was never nominated to that court, illustrates one of the strategies for change recommended in your book’s last chapter.

Jefferson & Johnson: One of our overarching recommendations in this book is to encourage systemic transformation, not just change at the individual level. Carter exemplified this approach when he issued an executive order that established judicial nominating commissions for the federal circuit courts in 1977. Thirteen panels were created representing regions across the country, with a specific mandate that each include men, women and minorities. The panels were directed to nominate candidates who had actively championed diversity. Thus, the panels asked:

• “How have you worked to further civil rights, women’s rights, or the rights of other disadvantaged groups on a national, state or local level?”
• “How many women attorneys and minority attorneys does your office or law firm include?”
• “How many women partners?”
• “Minority partners?”
• “What do you think the most crucial legal problems of women and minorities will be over the next few years?”
• “How should these problems be remedied?”

Panel members included Kearse, who at the time was still practicing law at Hughes, Hubbard & Reed in New York. She would later go on to be selected by one of those commissions, and she was confirmed to the U.S. Court of Appeals for the 2nd Circuit on June 25, 1979.

Carter understood that one of the most powerful roles of a president is the appointment of judges, who last long beyond the president’s term. By the end of his presidency, Carter had appointed and the Senate had confirmed 41 women, more than all presidents before him combined.

Question: You write of the “potential harms of being shortlisted.” As you see it, is it better or worse to be shortlisted, and why?

Jefferson & Johnson: Well, it’s best to be both shortlisted and selected. Our concern is that a shortlist can manipulate the public into believing that its creator has placed no gender or race barriers to a coveted position even though the ultimate aim was always to preserve the status quo. Of course, one needs to be on the shortlist to be selected. It is a necessary and important first step toward being chosen. It is an honor. But, when the shortlisting of women and minorities is a hollow gesture, it demeans not only the individual, but society’s belief that merit should override gendered and racial prejudices.

The message that is sent by systemic shortlisting may deter others from putting themselves forward. The dearth of women and minorities on the Supreme Court and in other positions of leadership and power signals that these opportunities are just not available and not worth enduring the often grueling scrutiny that comes from being on the shortlist.

Question: Before the 2016 election, then-candidate Trump publicly announced his shortlist of possible candidates for the Supreme Court.

On the one hand, you seem skeptical of this: Such lists, you write, lend “the auspices of diversity and equality to the nomination process but ultimately preserv[e] the status quo.” On the other hand, you argue that “[s]unlight is needed on the shortlists … [and we] need accurate data and transparency about who is shortlisted, not just for the Supreme Court, but across professions and in all positions of leadership and power.”

Can you say a bit more about your thinking on this matter?

Jefferson & Johnson: We think that these sentiments are both true. We absolutely need transparency surrounding who makes it onto the shortlist, as this practice is revelatory and may in fact encourage those who are doing the selecting to be more inclusive. Such transparency allows us to better understand what is actually happening and whether shortlisted women and minorities are mere window dressing or actual legitimate candidates. It also allows us to examine who ascends. We also acknowledge that even transparency only goes so far.

It is worth noting that the current president’s shortlists have thus far resulted in the appointment of more men, and fewer minorities, to the federal bench than his recent predecessors from both parties. By contrast, presumptive Democratic presidential nominee, Joe Biden, has committed to select both his vice president and a Supreme Court justice, should he have the opportunity to fill a vacancy, from all-female shortlists.

Question: Although duly appreciative of the achievements of the four “waves of feminism,” you nonetheless take exception to “a common omission in each wave of women’s rights since [its] early gathering [in Seneca Falls]”: the consideration of minority women. Would you elaborate?

Jefferson & Johnson: The voices of women of color have frequently been left out of the feminist movement. Most of the grievances expressed by the women at Seneca Falls were focused on white middle class women. Many of the activists in the suffrage movement were willing to exclude their black sisters out of concern that race would impede their ability to gain the right to vote. “Women” has not been synonymous with the experience of all women, and too often feminism has failed to acknowledge the many layers of our intersectional identities.

Question: The late Judge Cornelia Kennedy was nominated to a federal district court in 1970 by Nixon, and later elevated in 1979 by Carter to serve on the 6th Circuit. Presidents Gerald Ford and Reagan both considered her for the Supreme Court. Yet nothing ever came of it. Why?

Please also tell our readers how Kennedy changed one of the Supreme Court’s long-standing traditions.

Jefferson & Johnson: It’s hard to know exactly why Kennedy was never selected. She seems to have come closer than anyone else in our study. When Reagan was deciding between Kennedy and O’Connor, longevity on the court was likely a factor: Kennedy was six years older than O’Connor. This was Kennedy’s partial explanation. But we also suspect that politics and lobbying behind the scenes impacted Reagan’s decision.

Our nation’s history has many examples of physical structures mirroring social policy. “Colored” and “whites-only” train depots; men-only clubs; the forced relocation of Japanese American citizens during World War II. Similarly, many physical structures in place when shortlisted women were considered assumed that men were singularly qualified to occupy positions of leadership. For example, there was no private bathroom for O’Connor when she joined the Supreme Court. But that was not the only structural impediment that needed attention.

Historically, Supreme Court justices were referred to as “Mr. Justice” both on the bench and on the nameplates on their office doors. Kennedy found herself participating in a law school moot court competition with Justice John Paul Stevens. The student participants repeatedly referred to Kennedy as “Madam Justice.” Kennedy became irritated with this reference and questioned the need for the gendered honorific rather than simply the word “Justice.” This interlude sparked something in Stevens, who took the message back to Washington and, long story short, convinced the justices that it was time to remove the honorific “Mr.” from their chamber doors as well as from their references to each other.

Question: As you note in chapter three, Chief Justice Warren Burger played a role in helping to get O’Connor on the court. Among other things, while O’Connor was still a state appellate judge, Burger placed her on several national and international judicial panels in order to give her greater national visibility. Plus, it helped that on the eve of her nomination she published an article in the William and Mary Law Review on the relationship between federal and state courts. All of this points to a circuitous route to securing a seat on the court. How does that figure into your strategic calculus for someone hoping to secure a nomination to the Supreme Court?

Jefferson & Johnson: In addition to qualifications, connections matter both in the creation of a shortlist and in elevation from it. Some routes are direct; some are circuitous; but none should bar selection based on an immutable characteristic like gender. Thus, we admire Mentschikoff’s professional and personal relationship with Karl Llewellyn, who undoubtedly opened doors. But without her commanding intellect and her principal role as reporter to the American Law Institute on its Uniform Commercial Code publication, she would never have been considered for a position on the Supreme Court.

To be sure, securing a seat on the Supreme Court requires certain credentials, along with a bit of luck and the right timing. We don’t mean to suggest in any way that the strategies of the women profiled in our book or the recommendations we make in the final chapter offer a sure-fire path to the bench. But there are lessons to be learned for securing leadership roles, not only on the court but also well beyond it.

Question: In addition to the aspirational side of your book, I sense that there may be a kind of realist mindset at work. For example, you counsel that women “[c]hoose personal partners – whether in friendship or in romance – who value one’s professional life and allow for the possibility of non-traditional relationships.”

Are you saying that the personal is political?

Jefferson & Johnson: We gleaned a lot from our exploration of the personal lives of the shortlisted women and how their personal lives affected their successful professional trajectories. Relationships matter in the attainment of positions of leadership and power. All of the women on our shortlist relied on their academic, family, personal and/or public ties to achieve success. This was also true of the more than 100 men who preceded O’Connor. The difference is that the men’s attributes, combined with their personal and political relationships, secured seats on the highest court in the land.

Our message is that women, like their male counterparts, should not shy away from nurturing relationships that advance their ascension to pinnacles of power. Our personal, intimate lives can have a direct bearing on what we do professionally. And, whether we like it or not, politics often plays a role in what we can do at home and at work.

Question: Now that “Shortlisted” is out, what are your plans? For example, have you given any thought to doing a study (see here also) of female lawyers who have argued before the Supreme Court?

Jefferson & Johnson: Right now we are reveling in the birth of this book, although many of our plans are casualties of the coronavirus. We had several book talks scheduled that have been postponed or transitioned to Zoom sessions. But yes, we are intrigued by the examples of women arguing before the Supreme Court, by the dozens of women who have led their state courts as chief justice and by the continuing suppression of minority women in these roles. And our readers, like you, have given us much food for thought. Stay tuned!

Question: You close your book with this: “When President Obama greeted Justice Ginsburg at Justice Kagan’s swearing in, he asked, ‘Are you happy that I brought you two women?’ She replied, ‘Yes, but I’ll be happier when you bring me five more.’”

Why stop at eight?

Jefferson & Johnson: Great question! A court that reflects the diversity of our profession and the people it serves is an important goal. We should also work hard to resist the concept of a monolithic “woman’s voice.” Looking at the court’s rich history, we don’t attach one viewpoint or singular identity to the male justices or to the two African American justices who have served.

We would absolutely like to see an increasingly diverse court filled with women and minority justices whose perspectives on the law are informed by differences in geography, education, race, gender, ethnicity, life experience and more.

We wish Presidents Herbert Hoover or Franklin Roosevelt had been bold enough to nominate Florence Allen in the 1930s. Imagine how a decision like that would have changed the course of her story, and of history.

The post Ask the authors: The long and winding road from shortlisted to selected for female Supreme Court nominees appeared first on SCOTUSblog.

Credit: Reuters

In the United States, police violence frequently dominates the news cycle. People who believe that police officers have subjected them to excessive force can bring civil suits for violation of their Fourth Amendment rights. But these lawsuits often run up against the legal doctrine of “qualified immunity,” which excuses officers from liability for official actions that do not violate clearly established law.

On May 8, Reuters published a special report, “For cops who kill, special Supreme Court protection,” that explains how the Supreme Court’s application of the qualified immunity doctrine has decreased the number of cases in which police officers have been held accountable for using excessive force. Lawrence Hurley, Andrew Chung and Andrea Januta, members of the Reuters reporting team, kindly agreed to answer a few questions about this report. Welcome, Lawrence, Andrew and Andrea, and thank you for doing this.

***

Question: When did your investigation into qualified immunity begin? Is there anything behind the timing of the release?

Reuters team: When the Supreme Court declined to hear an excessive force case in April 2017, a line in Justice Sonia Sotomayor’s dissent from denial caught our eye. In that case, Salazar-Limon v. Houston, she accused the court of handling appeals brought by plaintiffs less favorably than appeals brought by defendants. Justice Samuel Alito wrote his own opinion questioning Sotomayor’s conclusion, saying she had not shown any data to back it up. We thought it would be interesting if we could get a sense of who was right. With several qualified immunity appeals now pending at the Supreme Court, we worked to get the story out this term so that people better understand what is at stake.

Question: Your report spans multiple pieces and uses various mediums to showcase your data. Could you briefly summarize the key findings of your investigation?

Reuters team: Well, first – we’re not done yet! The story is just the first in a series. In terms of the data findings, there are three key takeaways:

Appeals courts are granting qualified immunity to police much more than they used to. We analyzed hundreds of appeals court rulings in Westlaw’s database from 2005 to 2019 and found a noticeable spike in grants in the last few years, in light of frequent Supreme Court interventions that favor defendants. In the first three years we looked at, appeals courts granted qualified immunity in 44 percent of cases, but by the last three years we looked at, that number had jumped to 57 percent.

We also discovered that the courts have changed how they are navigating the two-part qualified immunity test. We found that since 2009, when the Supreme Court ruled that judges do not have to answer the question of whether there was a constitutional violation but can instead focus solely on the “clearly established” prong, courts are indeed increasingly following that route, which is contributing to the overall increase in the rate at which qualified immunity is granted.

Finally, we answered the question that set us out on this journey: Did the Supreme Court grant more cert petitions brought by defendants? Our work built on what Professor William Baude has written about the court’s “special solicitude” for defendants in qualified immunity cases. We identified 121 cases in which cert was sought in an excessive force case involving claims against police in which qualified immunity was the key issue. Defendants and police file at roughly the same rate but the court is 3.5 times more likely to grant cert in a case filed by defendants. So yes, Sotomayor was right.

Question: As you note, your research showed that of the 121 Supreme Court petitions involving qualified immunity defenses from 2005 to 2018 (excluding pro se litigants), cases appealed by officers were 3.5 times more likely to be granted than were cases appealed by civilians. Did you look at any other factors in the content of the petitions that could explain this disparity?

Reuters team: We did look at other factors, as it was crucial that our analysis accounted for differences in the petitions. We performed a great deal of statistical analysis to study the effects of various circumstances of a case – such as whether plaintiffs were armed or resisted arrest, or which circuit decided the case and when, as examples. Our findings hold up when we control for these factors. We did similar analysis for our appellate court findings, as well. Also, we spent quite a bit of time ensuring that the question presented directly addressed qualified immunity and officer excessive force. We did not include cases that were not directly on point.

Question: Your team analyzed 529 federal circuit court opinions published from 2005 to 2019 in cases in which police officers accused of excessive force raised a qualified immunity defense. Why did you limit your data to published opinions? Do you have a sense of the general trends in the unpublished opinions?

Reuters team: To gather the data we needed to report this project, we used Westlaw extensively, both in terms of the database’s content and its search tools. We limited our data to published opinions for several reasons. First, published opinions set precedent for the circuits and thus carry more weight in shaping the law. Second, many unpublished decisions, in contrast to published ones, have little if any of the legal analysis we needed to properly perform our own analysis, which required a close reading of each opinion. On the other hand, we came across many unpublished opinions in the reporting of the story, including those with dramatic fact patterns or other details that made them indistinguishable from the many published cases we analyzed. We would be surprised if the qualified immunity trends among unpublished opinions did not track those of their published counterparts.

Question: To grant an officer qualified immunity from an excessive force lawsuit, judges apply a two-part test laid out in Saucier v. Katz, in 2001: 1) whether an officer used excessive force in violation of the Fourth Amendment and 2) whether the officer should have known that their actions constituted excessive force based on clearly established court precedent. In 2009, in Pearson v. Callahan, the Supreme Court ruled that lower courts can make a finding on part two of the test without addressing part one. In your report, you address the consequences of this decision:

In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

Do you think that the unanimous court in Pearson realized that they were creating this “closed loop”?

Reuters team: It’s not clear what the Pearson court thought the real-world implications would be. But the justices certainly believed that freeing lower courts from the “rigid order of battle” imposed by Saucier just eight years earlier was necessary. As Alito’s reasoning in Pearson makes clear, criticism of Saucier had come from within the court and without. They believed it was costing precious judicial resources, among other problems. And though they explicitly recognized that jettisoning the Saucier framework risked constitutional stagnation, they were willing to take that route. Pearson similarly cannot be viewed in isolation from the court’s repeated reminders that qualified immunity is immunity from suit, not just a defense to liability, and its more recent, active policing of the doctrine, perhaps best explained by Alito’s footnote in the San Francisco v. Sheehan case from 2015, which emphasized qualified immunity’s “importance to society as a whole.”

Question: Sotomayor has called for the court to reconsider its qualified immunity doctrine. In a 2018 dissent in Kisela v. Hughes, Sotomayor said that the court has created an “absolute shield” for police officers accused of excessive force. Do the numbers in your report back up her statement?

Reuters team: The overall uptick in appeals courts granting immunity in the last couple of years appears to show that recent Supreme Court rulings in favor of defendants have had an impact. Although, while it’s certainly harder for plaintiffs to overcome immunity than it used to be, many still do.

Question: In 2017, Justice Clarence Thomas wrote in his concurrence in Ziglar v. Abbasi that “in the decisions following Pierson [v. Ray], we have ‘completely reformulated qualified immunity along principles not at all embodied in the common law.’” Thomas has suggested that the court should find an appropriate case to reconsider the doctrine. Do Thomas and Sotomayor have the same vision for the future of qualified immunity?

Reuters team: The fascinating thing about criticism heaped upon qualified immunity by Thomas and Sotomayor, in many ways ideological opposites, is that it reflects the breadth of a growing number of scholars, lawyers and jurists who also denounce the doctrine. Thomas’ approach is different from Sotomayor’s in that his concern in Ziglar seems to be that the court has gone off the rails of common law in shaping the contours of the defense, while hers is that the court’s current approach to qualified immunity is tantamount to an “absolute shield” that can tell police officers to “shoot first and think later.” Where they end up, however, might indeed be the same, as both might be open to revisiting the doctrine itself, a question that some of the pending cert petitions, like Baxter v. Bracey and Corbitt v. Vickers, present. Other cases might lend an opportunity to refine the doctrine in either direction, such as Kelsay v. Ernst, which is asking specifically about nonthreatening, nonresisting subjects.

Question: Decisions by the Supreme Court have far-reaching consequences that are sometimes hard to quantify. Do you have your eye on another project like this?

Reuters team: As we mentioned above, we’re not done with qualified immunity yet!

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