That evening, they would march along the street and confront police and national guardsmen called in by Governor Louie B. Nunn. Over the course of the next few months, Bright would become awakened to the enormous damage that could be done when politicians pit people against one another for electoral gain. During this volatile period, a Lexington newspaper dubbed Bright “the most controversial student body president UK, and perhaps Kentucky, has ever seen.” MORE
— Becoming Steve Bright, Kentucky Law Journal
Rediscovering the radical tradition of American constitutionalism—complete with systemic critiques of the original constitution, including how mainstream constitutionalism has insulated markets from political accountability and facilitated the domination of non-white populations at home and abroad—requires combing through the writings and activism of black intellectuals, committed socialists, decolonial theorists, and even the occasional liberal. MORE
— Searching for the Radical Constitution, The New Rambler
The debate that ensued over the Carnes nomination raised a basic question about what we mean by “equal justice”: Do Americans simply want judges who themselves are not biased or judges who will take responsibility for the wrongdoing of other members of the community? Carnes’s defenders insisted that he was not a racist, … But his detractors, including Bright, argued that Carnes’s “ruthless” pursuit of capital punishment and blindness to structural inequality revealed a character flaw. MORE
— The Fight For Justice Starts with Blocking Judges Who are “Tough on Crime,”
Public Books
What the applicant-consumer hopes and expects has been centered by legal doctrine rather than an institution’s sovereignty over its domain or its place in the political order…. the line of affirmative action cases is also antipluralist. They erect legal obstacles to institutions making different value choices than the justices would or as some citizens as consumers might.” MORE
— Roads Not Taken on Affirmative Action, Seton Hall Law Review
The race to incarcerate made a new generation of advocates crucial to the survival of liberal institutions and values in the age of mass incarceration—including the ideal of adversary justice, racial equality, and the legitimacy of a democratic state, whose overriding goals are security and justice. After all, as the civil rights movement went mainstream, its leaders focused public attention on workplaces, restaurants, and hotels, and away from the criminal justice system. MORE
— An Exercise in Political Imagination: The Day Stephen Bright and Bryan Stevenson Debated William F. Buckley, Liberal Currents
For a country where record numbers of citizens now feel that politics is futile, the approaches also differ in their attitudes toward popular sovereignty. Commentators working in the devotional genre seek to cultivate a nostalgic people who celebrate past democratic achievements but fear the next great mobilization. By contrast, those who yearn for a more experimental politics insist that only an empowered citizenry can transcend a sclerotic legal order and improve material conditions for a greater swath of the populace. MORE
— Constitutional Disorder, Democracy Journal
The Southern Center for Human Rights was at the center of this next stage of the struggle for racial justice. Bryan Stevenson, who later founded Equal Justice Initiative, was then a young staff attorney at the Southern Center. Stevenson was “heartbroken” about McCleskey and couldn’t believe that the same institution that had decided Brown v. Board of Education had just said that racism was inevitable in the legal system. But after talking to Executive Director Stephen Bright, Stevenson and the rest of the staff formulated a plan. MORE
— Supreme Court Opinions Don’t Have to Be the End of the Fight for Justice, Time
Whether the ongoing conflict raging across the globe was a reason to vindicate rights or curb them required reaching a view about war-fighting needs or the legacy of war. Was U.S. involvement in World War II about the overriding value of national unity during a time of crisis or did fighting totalitarianism abroad mean that Americans themselves had to internalize anti-authoritarianism at home? And if the answer was the latter, should judges play an active role in inculcating such values by blocking otherwise valid policies? MORE— The Supreme Court’s World War II Battles, Washington Monthly
Don’t look now, but there’s a power grab in Louisiana — one that might well destroy the ideal of equal justice in that state. Some 85 percent of people in the state’s criminal justice system are too poor to afford their own attorney. Now a plan is moving forward for the governor’s office to wrest control of all “powers, duties, and responsibilities” over the state’s public defense system from the state’s public defense board. MORE
— Equal Justice is Under Threat in Louisiana, The Hill
These abolitionists even called their filings “McCleskey motions” to reclaim that precedent on behalf of a more robust vision of equality. The Supreme Court’s ruling in McCleskey was well on its way to becoming an infamous decision in the legal academy and among the public interest lawyers at large, but in these Southern courtrooms, Bright and others treated the decision as if it represented good law in demanding discovery and hearings. MORE
— After McCleskey, Southern California Law Review
A careful historical reading of Dobbs reveals it to be the work of movement judges—albeit not the kind that progressives and abolitionists would prefer … a movement jurist is someone who is socially embedded in movement-aligned networks outside of the formal legal system and is willing to use a judge’s tools of the trade in the service of a movement’s goals. MORE
— Abortion Politics and the Rise of Movement Jurists, U.C. Davis Law Review (with Mary Ziegler)
Many abortion rights supporters and others on the left blame the court’s Republican-appointed majority, seeing those judges as too politically partisan. But we see something a bit different going on. To really understand why the Supreme Court overruled Roe v. Wade, we think it’s crucial to see Dobbs as the triumph of two social movements and the rising influence of a distinctive kind of judge. MORE
— Why the Supreme Court Really Killed Roe v. Wade, Politico Magazine (with Mary Ziegler)
Any social utility gained from the search for hostility in this small group of disputes must also be measured against losses from any counterproductive effects that can be attributed to the construct. The principal virtues of this outrage-oriented discourse, as established earlier, is to identify actions, practices, and people who act beyond the pale. Negative effects would include any evidence that the approach interferes with sound judicial decisions or stymies productive engagement with the principles at stake. MORE
— Abandoning Animus, Alabama Law Review
One noteworthy article focused on Samuel Moore, who became the poster child for a broken legal system. Moore had been picked up for loitering and refused to give his name. While he sat in the Crisp County jail for the next 13 months waiting trial, the legal system completely lost track of him. No one came to visit Moore, and no judge appointed a contract defender to represent him until Moore hand-wrote a motion asking for the file in his case—nine months into his ordeal. MORE
— The Public Defender Movement in the Age of Mass Incarceration:
Georgia’s Experience, Journal of American Constitutional History
Every time the residents of Port Somewhere felt their hopes raised that the next round of construction would integrate their town with the rest of the world, those aspirations would be dashed by bankruptcy or plans torn up in a corporate boardroom. Economic investments by the townsfolk in anticipation of a boom would be lost each time. During this period of its history, as isolation was being imprinted upon the DNA of the place, the town died many times over. BUY NOW
— Somewhere, U.S.A., After Life
What if democracy is already in decline and the constitutional order makes it enormously difficult to correct damaging trend lines? Then the judiciary is likely to be a part of the problem. In a polarized environment rife with disinformation and widespread suspicion, aggressive forms of judicial review might not make things better, but instead make them worse. When a polity becomes deeply divided ideologically, it becomes harder to reach consensus as to a coherent vision of democracy. MORE
— Why Judges Can’t Save Democracy, Syracuse Law Review
How to re-engage each other in ways that can make coalitions must be the central task of democratic politics. Without giving this crisis of faith its due, and discovering means of forging solidarity, justice remains unattainable. Importantly, confronting social misery can increase the risk of demoralisation. Noticing what was previously easy to ignore—the evidence of inequality, degradation and hypocrisy—could deepen the crisis of democratic faith. Most do not do well with this discomfort, once we give up telling each other soft lies. MORE
—The Power of Langston Hughes’s ‘Melancholy Citizenship’, Psyche
The politics of repudiation begins with the notion that every judicial ruling is a first draft, a sketch of legal and political values. Judges’ words are only fragments, composed by a single collection of influential individuals reading a text for a particular moment in time. What a judicial ruling means in the social world depends on what it becomes… What matters more than the ideas contained in a judicial opinion, then, is what average citizens and elites do with that legal decision once it reenters the stream of democratic discourse. MORE
— Supreme Court Precedent and the Politics of Repudiation, Law’s Infamy
But if most of Alito’s draft remains intact, Americans should be prepared not just to see Roe v. Wade obliterated — but also other constitutional rights put up for grabs. Once rights are rolled back, as Alito’s opinion upholding Mississippi’s law reminds us, the state needs only to assert moral reasons to criminalize behavior it wishes to discourage. Eliminating a landmark decision is like cutting a hole in a tapestry, and we don’t know yet how much of constitutional law will unravel. MORE
— What Rights Could Unravel Next, Politico
The history of bounty systems also shows that state-sponsored but privatized surveillance and snitching, far from confining disputes to the controlled setting of the court, can create new fronts of conflict. As early as 1705, slaveholding states enacted laws encouraging members of the community to apprehend runaway slaves and rewarding bounty hunters for their efforts… These abortion watchmen will monitor people’s movements, and self-appointed citizen enforcers may offer second-order bounties for difficult-to-obtain medical information and private communications that will now qualify as relevant evidence in court. MORE
— The New Abortion Vigilantism, New York Review of Books (with Mary Ziegler)
Treating meritocracy as an ideology rather than an ethic also teaches that it’s never enough to offer stand-alone solutions; reform must come in packages. Even the way we approach politics can’t be reduced to a global moral discourse; instead, we make more progress by showing facility with a suite of discourses. Another valuable lesson is that there will surely be unintended consequences. Tugging on one part of the social fabric may make the area where we’ve momentarily trained our eyes more beautiful, but it could also rip open seams in other, neglected sections of the tapestry. MORE
— Can Sandel Dethrone Meritocracy?, American Journal of Law and Equality
The organizing principle that government works best when the people remain out of sight—as much as that of the necessity of overlapping checks—has helped form a citizenry that, generation after generation, doubts its capacity to make a difference through the science of politics and remains perpetually suspicious of the motives of the officials who are elected. Little wonder, then, that Americans must take to the streets to remind government officials who is in charge. MORE
— Not Popular Enough, Democracy Journal, on A New Constitution for the U.S.
That presidents can dominate public debate and send conflicting messages about political change raises a different problem: the risk of unearned transformation. Simply put, this is what happens when significant legal shifts occur without deep and broad public backing. Just as uneelected judges can be too creative and engaged in unearned jurisprudential expansions, so too can a president misread his political warrant and seek legal and bureaucratic changes that go well beyond any electoral mandate or contemporary support. MORE
— The Place of the Presidency in Historical Time, Boston University Law Review
There’s quite a bit more that can be gleaned from putting Korematsu and Trump v. Hawaii together than contemplating them apart. We learn that, two generations after the internment cases were decied, a president’s ability to inflict mass suffering has grown exponentially rather than diminished… These bureaucracies, with their own staff and lawyers, can hunt down undesirables and facilitate life-saving care and path-altering opportunities or they can crush them in cruel fashion. MORE
— A Proper Burial, Arkansas Law Review
When young people are not taught to think about the design of the Constitution and instances of past constitutional change, they can’t imagine a better way of doing things together. When they see history as simply a collection of facts and events, they become detached from past generations and believe that past problems of justice have been solved. But when they are taught that constitutional history has been made, and continues to be made, through a series of “refoundings,” then the skills necessary for democracy’s continuation are hardwired into the learning of history. MORE
— How to Avoid the Culture War Trap Around Critical Race Theory, Slate (with Linda McClain)
In the 1980s, with Roe on the books and a constitutional amendment to ban abortion seemingly out of reach, abortion opponents rethought their approach to dismantling precedent, looking not to the 19th-century abolitionist movement but to the 20th-century civil-rights lawyers who took on school segregation. Groups like Americans United for Life brought a series of cases designed to chip away at Roe and make it seem increasingly incoherent. MORE
— How the Anti-Abortion Movement Used the Progressive Playbook to Chip Away at Roe v. Wade, Politico (with Mary Ziegler)
For Vergara, Machiavelli is, by leaps and bounds, the most important theorist of the bunch. Yet Vergara’s Machiavelli is not Pocock’s great “civic humanist” preoccupied with maximizing virtù so as to reduce the potency and unpredictability of fortuna. Nor does he resemble Skinner’s proto-liberal sketch, in which Machiavelli winds up in “virtually the same” place as John Rawls such that “the optimum legal basis for a free polity consists of a republican constitution founded on a bicameral legislature.” MORE
— The Future of Materialist Constitutionalism, The New Rambler
At this very moment, a president who came to power without earning the majority support of Americans has doubled down on the courts as a major part of his efforts to stay in office, hoping that a conservative court will rule his way in any electoral dispute. Much of the blame for that can be laid at the feet of the court itself, which ended the disputed 2000 election in Bush v. Gore by stopping the recount in Florida. In doing so, it opened the floodgates to election-related lawsuits and increased the odds that a party could retain power even though it loses the popular vote. MORE
— How SCOTUS Nominations Became All-Out War, Politico
Platforms declare a party’s values and commitments… Examining Republican platforms over time shows that what once had been a big-tent strategy of carefully managing intraparty differences over equality has been replaced by a hierarchical model of leadership where the party faithful should acquiesce to one individual’s vision of political community. MORE
— If the Republican Party is the Party of Trump, What Does it Stand For?, Washington Post (with Linda McClain)
There’s a tendency during times of crisis to pass on the social pain and economic pain caused by emergency policies to unpopular groups, such as foreigners, the sick or disabled, or racial minorities. That unfortunate majoritarian impulse to mistreat those least able to defend themselves—perhaps even more acute among Americans used to a comfortable standard of living—must be resisted as much as possible. MORE
— Who’s in Charge?, Boston Review
Once upon a time, emergencies were thought to be extraordinary events. It is not that Presidents did not take the initiative to declare emergencies; they always have, and they always will. But there was a time when a President behaved as if emergencies were temporary, let them expire after a limited time, invoked emergency power in good faith, and acted expecting to be accountable to Congress as well as the American people. MORE
— Manufactured Emergencies, Yale Law Journal Forum
On the rainy morning of November 3, 1885, some 500 armed white men visited the home and business of every single Chinese person living in Tacoma, Washington. As the skies wept, the mob roused all 200 of them, including women, children, and the eldery, and marched them through the mud to the outskirts of town. Those who could afford a ticket were seen off on the next train. Those who could not make fare had to keep walking in the hope of seeking refuge in Portland, nearly 150 miles to the south. MORE
— Racial Purges, Michigan Law Review
The shortage of ventilators and personal protective equipment (PPE) in parts of the country has raised the most acute equality concerns regarding the treatment of people who are gravely ill. Some jurisdictions have more protective and life-saving equipment on hand than others do, but this pre-crisis distribution is a product of many factors beyond existing need, and more likely to be correlated with differences in population size, wealth, and expectations based on past health care needs rather than those called for by COVID-19. MORE
— Inequality During a Pandemic, Rationing Life-Saving Gear & Care, Harvard Law Review
As governors and mayors rush to stem the spread of COVID-19 throughout the country, and as healthcare workers make difficult resource allocation decisions, they are often treating some people differently from others. ‘Essential’ businesses or establishments are permitted to stay open and fight for economic survival, while ‘non-essential’ ones are forced to close, perhaps forever… How do we tell which policies are compatible with our guarantee of equality and which ones betray that commitment? MORE
— Inequality During a Pandemic, Shared Suffering & Self-Quarantine, Harvard Law Review
But practical egalitarianism has bite as the window of opportunity for deliberation is closing. While there’s still a realistic chance for some of those burdens to be lifted in the matter at hand during deliberation, the goal of relieving suffering should be paramount, prioritized over a desire to needle one’s colleagues, burnish one’s reputation for philosophical consistency and erudition, or a desire to shape debate in the uncertain future. MORE
— The Hidden Costs of Dissent, Constitutional Commentary
Buckley was terrified of what he felt was “ruthless” liberal egalitarianism, while Baldwin felt that, in the hands of white men moved by racist intentions as well as progressive pretensions, the law had lost the power to accomplish great moral causes. Buccola’s generous rendering of their beliefs and concerns leaves us with a pressing question: is it possible to have political order—much less a just order—without law? MORE
— Before America Burned, Boston Review
Now, the Trump administration has opened a new front in the battle to dislodge the Immigration and Naturalization Act of 1965. This watershed legislation repudiated the national-origin quotas of the Immigration Act of 1924 that had long been considered racist, as well as the long-standing preference for migrants from northern and western Europe, along with the associated logic that immigrants from elsewhere were culturally incompatible and that they and their families could be treated differently. MORE
— Immigration Unilateralism and American Ethnonationalism, Loyola University Chicago Law Journal
Defenders of the unitary executive theory have some valiant notions about how virtually unchecked executive power can keep America safe and agencies on a tight leash. But right now, the most aggressive view of presidential power is being used to give cover to acts that would be criminal if committed by any other American. MORE
— Obstruction of Justice? The Damage Runs Much Deeper Than That, Boston Globe
But now, more than two years since Trump first issued the ban, the question isn’t simply whether the travel ban is up to snuff; it’s whether evidence demonstrates the law is equitable in practice—and whether its real-world enforcement is as fair as the administration promised the justices. There are plenty of reasons to believe it is not. MORE
— Trump’s Travel Ban Faces Fresh Legal Jeopardy, Politico
Most states protect reproductive rights by relying on concepts of privacy built into their constitutions, something that the US Constitution lacks….Of the states that guarantee reproductive freedom, seven — Alaska, California, Florida, Minnesota, New Jersey, New York, and Tennessee — view choice as a fundamental right, and have even overturned restrictions on public funding of abortions, two things the US Supreme Court has staunchly refused to do. MORE
— Abortion Goes on Trial, Again, Boston Globe
Without a guarantee of citizenship, former slaves and their descendants lived in a state of toleration. Yet social toleration is not the same as civic respect. Even on their best behavior, free blacks lived lives formally tethered to white patrons and employers. White bosses, lawyers, and judges in many respects simply stepped into the role of white slaveholders, exerting an outsized role in black lives. MORE
— The Origins of Birthright Citizenship, Boston Review
When we scratch Trumpism’s surface though, it turns out that what yokes together the president’s followers isn’t a consistent set of economic policies. It’s not even a coherent political philosophy. Rather, it’s an outlook, a sensibility — an identity, even — as members of what I call an “incipient minority.” Whether you are a religious traditionalist, techno-libertarian, rapacious capitalist, market skeptic, or white nationalist, you share a belief that you are part of an embattled community that is only getting smaller. MORE
— Specter of a White Minority, Los Angeles Review of Books
Anti-immigrant forces have been making the biblically-inspired case for closed borders and callous measures against refugees and immigrants for some time, even if it has gone largely unnoticed until now. Indeed, while Romans 13 is getting all the attention, there are other passages in the Bible that are regularly deployed in the cause of nationalistic movements or restrictions on migration. Collectively, these commands, sayings, and stories—interpreted in a conservative grassroots fashion—can be considered the “anti-immigration Bible.” And if we have any chance of quelling its influence, we must first understand it. MORE
— The Anti-Immigration Bible, Boston Review
While Scanlon may not consider himself a pragmatist, his relational approach makes it morally permissible to have more discrete conversations about different kinds of problems. This, in turn, can focus debates so as to facilitate resolution of particular disputes, without being tripped up by disagreement over a global notion of equality….. Where Scanlon’s approach begins to reach its limitations is when people acknowledge the existence of inequality but can’t agree on how to classify the problem. MORE
— What is Inequality?, Los Angeles Review of Books
At a similar moment of ascendant nationalism in the 1940s, President Franklin D. Roosevelt’s administration forged a different path on the exact same issue, an approach characterized by modesty and concerns about suppressing valuable dissent while unwittingly stoking vigilantism. Roosevelt’s supporters certainly took advantage of patriotic sentiment to rally ordinary citizens to favor American participation in the war in Europe. But officials chose not to insist upon ritualistic obedience to national symbols. MORE
— Trump Thinks Americans Should Be Forced to Perform Patriot Rituals. One of His Predecessors Fiercely Disagreed, Washington Post
But while Donald Trump is credited with inaugurating this fiery brand of nationalism and “zero tolerance” enforcement approach, it is myopic to consider these inhumane policies in isolation from the conservative coalition that cheers or enables them. Indeed, we can’t fully appreciate the current anti-immigration moment without understanding the persistent political efforts that created the ideological framework for such measures—efforts that also primed the American people to tolerate the increasingly cruel treatment of dislocated populations. MORE
— Trumpism Before Trump, Boston Review (with Calvin TerBeek)
It’s called the “constitutional sheriff” movement, and as it grows, it’s increasing the risk of conflict between local law enforcement and federal authorities. Its animating idea is that a sheriff holds ultimate law-enforcement authority in his county—outranking even the federal government within its borders. Though the movement claims deep history in English law, its real roots lie in the more recent fringes of American right-wing thought. MORE
— The Troubling Sheriffs’ Movement That Joe Arpaio Supports, Politico
Trump no longer speaks as a private citizen when he howls at the moon. Instead, his statements carry sovereign meaning and will be treated that way, regardless of the medium and regardless of what his followers choose to believe. It’s not just the media that cares: Litigants, activists, and government officials will almost certainly quote his utterances as evidence of his true intentions, plans, and views about the law. Foreign leaders will hear his threats and promises, and take them as pronouncements of intent. MORE
— Actually, Paul Ryan, the President’s Words Do Matter, Slate
A person engages in borrowing when, in the course of trying to persuade someone to adopt a reading of the Constitution, that person draws on one domain of constitutional knowledge in order to interpret, bolster, or otherwise illuminate another domain. It is, in other words, an interpretive practice characterized by a deliberate effort to bridge disparate constitutional fields for persuasive ends. MORE
— Constitutional Borrowing, Michigan Law Review (with Nelson Tebbe)
Shortly after World War II ended, American reformers proposed a bold constitutional change: the creation of a new legal body — a tribune of the people — charged solely with protecting the natural and civil rights of individuals and groups. This office, serving as a public advocate, would safeguard against totalitarianism and act as a powerful instrument for human rights….More than 60 years later, the time has come for the United States also to enact this reform. MORE
— From NSA to Race, a Protector of Rights Needed, Boston Globe
It will surprise many Americans to learn that before John Brown and his men briefly captured Harpers Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. MORE
— John Brown’s Constitution, Boston College Law Review
Whether a particular group ultimately succeeds or fails—and however distasteful or disruptive their stated aims—Americans’ propensity to declare independence has many salutary consequences for the legal order as a whole. In any political system, moments will arise when the government’s priorities meaningfully diverge from those of its people. It is a mark of strength, not weakness, that our political tradition makes room for creative and sometimes unorthodox actions to repair this breach. MORE
— Why Americans Love to Declare Independence, Boston Globe
That AFDC occasionally has been amended suggests that the program has been susceptible to the ebb and flow of public pressures. Indeed, the new law demonstrates that strict limits can be enacted when national will is brought to bear on existing policy. In other words, welfare policy has reflected, and continues to exemplify, the rational contradictions of popular goals. MORE
— The System Worked: Our Schizophrenic Stance on Welfare, Yale Law Journal