April 30, 2021

Why Supreme Court Case About Cheerleader's Snapchat Rant Matters to Students Everywhere


In Supreme Court cases, our tendency is to focus on who should win. That’s not what matters most in Mahanoy Area School District v. B.L.

[Cross-posted from USA Today]

By Aaron Tang

Like every high school freshman ever, 14-year-old Brandi Levy had a bad week. She missed the cut for her high school’s varsity cheerleading team. She struggled at softball practice. And she worried about her final exams. So like every high school freshman, Levy vented. “F--- school f--- softball f--- cheer f--- everything,” she posted to her friends on Snapchat on a Saturday afternoon.


Unlike every other high school freshman, Levy’s angry snap spawned a controversy that is now before the Supreme Court.

Levy’s message, it turns out, found its way to her cheerleading coaches, who suspended her from the team. Two lower courts ruled that this violated Levy’s right to free speech, and the Supreme Court will hear oral argument in her case Wednesday.

When contemplating major Supreme Court cases, our natural tendency is to focus on who should win. Counterintuitively, that’s not what matters most in Mahanoy Area School District v. B.L. 

What matters more is what the court says about what comes next for the losing side. If the justices are wise, they will write an opinion ensuring that who loses can still protect their interests even after an adverse ruling.

The question in Mahanoy concerns the proper application of a canonical First Amendment decision, Tinker v. Des Moines. In Tinker, the Supreme Court famously held that although students do not “shed their constitutional rights ... at the schoolhouse gate,” the First Amendment permits public schools to punish students for speech that would “substantially disrupt” school activities. 

Tinker concerned three students who were suspended for wearing black armbands to protest the Vietnam War. The court ruled that this violated the students’ right to free speech because their protest caused little in-school disturbance.

Levy’s speech was different in a crucial respect. Unlike the armbands in Tinker, which were worn on campus, Levy’s speech took place entirely off-site.

The 3rd Circuit Court of Appeals thus held that Tinker’s carveout for student speech that would “substantially disrupt” school activities did not apply in the first place. Levy’s expression accordingly enjoyed full First Amendment protection.

It’s easy to sympathize with Levy’s plight. Yet the 3rd Circuit’s reasoning is also quite worrisome. Perhaps that court was correct that she shouldn’t have been punished for her casual weekend snaps, but surely students who engage in more dangerous off-site speech should be.

Consider the tragic story of Mallory Grossman, 12, a middle school student who was so brutally harassed by her classmates through Snapchat and other off-campus social media that she took her own life. Or Phoebe Smith, a 15-year-old freshman who hung herself after being victimized by relentless bullying, much of it online.

Schools must have the power to crack down on the perpetrators of such harmful and pernicious speech, even if it takes place off-campus.

But the interests on Levy’s side of the case are significant, too. Levy’s speech threatened no student or school employee. She simply wanted to vent a little and live her life.

Free expression at stake

To allow the school district to punish her for such relatable frustrations — feelings that teenagers around the nation share everyday online — would dangerously stifle free expression among the very young people whom schools are supposed to teach that value.

Who, then, should win the case? Happily, the answer is not as important as one might expect given the gravity of the conflict.

The reason is that whoever loses on the technical legal question — whether Tinker applies to off-campus speech — should still enjoy a meaningful strategy for protecting their interests moving forward. The key is for the Supreme Court to say so in any opinion it writes.

Start with a ruling against Levy. If the Supreme Court holds that school districts can, in fact, punish students for off-campus speech that meets Tinker’s substantial disruption standard, that is not the end of Levy’s case. She can (and should) still prevail if her snap did not actually create such a disruption.

As it turns out, the district court ruled in her favor on exactly this basis. Apart from a few comments from upset students — precisely the kind of reaction generated by the protests in Tinker — Levy’s snap caused no disruptive effect in school.  

Or consider a possible ruling against the school district. If the court wishes to protect the expressive interests of young people like Levy, it can affirm that Tinker has no application to off-campus speech.

But if it does that, it can (and should) also make clear that schools retain the power to punish students for off-campus speech that threatens, bullies or harasses others because such speech is not protected under standard First Amendment principles.

Tellingly, Levy agrees. As her brief puts it, “Ordinary First Amendment standards … already permit schools to regulate harassment and bullying, including when they are carried out by speech.”

Both sides need good options

The outcome of Supreme Court rulings on major societal conflicts can feel like a matter of life or death, so battles over the Supreme Court often feel the same way. That is especially true in this polarized moment. But a case like Mahanoy Area School District shows why it is important to look beyond the court and focus on what happens after the court issues its decisions. Sometimes, the side that loses a monumental case will still have meaningful options for avoiding harm.

Indeed, I’ve argued that the Supreme Court is increasingly deciding hard cases with this important idea in mind: A number of its recent opinions have reminded losing litigants of their other avenues for redress.


By signaling the availability of these post-defeat responses, the court ensures that its decisions avoid all-out losers. The court should continue on this promising path, both in Mahanoy and the other cases on its docket.


April 26, 2021

Op-Ed: California Should Pass a Small Tax on Big Wealth

[Cross-posted from the Los Angeles Times]


By Darien Shanske, David Gamage and Emmanuel Saez


California’s tax system is upside down at the top: Millionaires pay higher rates than billionaires. California’s wealthiest residents — who have partaken in a $4-trillion increase in billionaire wealth in the last year — contribute next to nothing to state coffers. Meanwhile, many less fortunate Californians are suffering.


The ordinary rich — say, a well-compensated doctor — pay a lot in California income tax; they do their share to help support the state. Indeed, many working-class individuals, such as nurses, teachers or firefighters, pay tax on a much larger share of their economic gains than do the wealthiest Californians.

So how do mega-millionaires and billionaires escape the state’s Franchise Tax Board?

The answer is that our tax system does not reach large fortunes unless property is sold or money is paid out in salaries or in stock dividends. Playing Wall Street games, the very rich in the state can avoid taxation and still fund their lavish lifestyles.

Consider Elon Musk. He built a fortune in California currently valued at about $180 billion, the largest ever seen in the state. We don’t know exactly how much state income tax he has paid, but because he hasn’t sold his Tesla stock or taken a substantial salary or dividends, we can surmise that he has paid very little. Musk now claims to have moved to Texas, so he will probably never pay income tax to California on the billions he accumulated while benefiting from the services and protections provided by the state.

The state Legislature is now considering a pair of bills — Assembly Constitutional Amendment 8 and Assembly Bill 310 — that would levy a 1% tax on extreme wealth: anything above $50 million, with an additional 0.5% tax on fortunes worth more than $1 billion. With Georgetown University law professor Brian Galle, we helped draft these bills to deter tax avoidance and to restore fairness to California’s tax system.

Under these two measures, a household worth $51 million, for example, would pay a tax of $10,000 a year (1% of $1 million). That would be a small burden for such a household but a big boon to California because about one-quarter of all American billionaires reside in the state. As we lay out in a white paper on the legislation, the reforms would raise about $22 billion a year, and more as wealth increases in the state.

California may be able to weather the pandemic without budget cuts, helped by President Biden’s COVID-19 relief package. But soon enough, the state will again face deficits and a host of unmet needs. Sacramento must invest in climate change resilience, such as power line and power grid upgrades to help prevent catastrophic wildfires. The state’s school systems are facing teacher shortages. Housing and mental health facilities are needed to help those living on our streets.

Most fundamentally, it is time to make the tax system fairer.

We estimate that about 15,000 families would be subject to the new wealth tax — the richest 0.07% of the state. According to Forbes magazine, there are about 170 California billionaires, and their total wealth is now around $1 trillion. It was only $700 billion two years ago, before COVID-19, and $300 billion 10 years ago. During the pandemic, while 7.8 million unemployment claims were filed in the state, the state’s richest people gained $300 billion. About half of the $22 billion the new tax would raise would be paid by these billionaires.

Those opposed to a new wealth tax claim that the very rich would flee California in droves, a la Musk, who has made no secret of his objections to the state’s regulations. Much the same warnings were sounded in 2012 and 2016 when California raised income taxes on millionaires. And yet our research shows that the state has gained millionaires and billionaires, along with added revenue from those earlier taxes on the rich.

Other researchers who have studied the question of whether millionaires leave states when taxes are raised have generally found that such movement is uncommon and that when the rich do relocate, taxes aren’t the main reason.

Think about it: For many of the ultra-wealthy, paying a 1% or even 1.5% tax on their fortunes would amount to less than the usual fluctuations of their net worth because of weekly swings in the stock market. And those who made a lot of noise about departing because of the tax would probably have left anyway, seeking a lower-tax state when they finally sell off some of their holdings.

Don’t buy the scare stories about taxing extreme wealth. We need such a tax so that California’s economy benefits all its residents, not just the rich, and to make sure that the wealthiest in the state pay their fair share.

Darien Shanske is a professor of law at UC Davis, David Gamage is a professor of law at Indiana University Bloomington, and Emmanuel Saez is a professor of economics at UC Berkeley.

April 26, 2021

Analyzing the Recent Sixth Circuit’s Extension of 'Academic Freedom' Protection to a College Teacher Who Refused to Respect Student Gender-Pronoun Preferences

[Cross-posted from Justia]

By Vikram David Amar and Alan E. Brownstein

A few weeks back, in Meriwether v. Hartop, the United States Court of Appeals for the Sixth Circuit issued a broad First Amendment ruling in the area of so-called “academic freedom” enjoyed by university teachers. The case involves a philosophy professor (Nicholas Meriwether) who was punished by the public university he works for (Shawnee State University in Ohio, or University) for failing to comply with a University policy requiring teachers to address students by the students’ preferred pronouns. More specifically, Meriwether, a devout Christian who had a practice of using formal titles (Mr. or Ms.) in class when leading Socratic discussions to “foster[] an atmosphere of seriousness and mutual respect,” objected to having to use “feminine titles and pronouns” in addressing and referring to a student (described in the opinion merely as “Doe”) whom Meriwether described as someone “‘no one . . . would have assumed . . . was female’” based on . . . outward appearances. . .”

In response to complaints by the student, the University, after various back-and-forths with Meriwether, formally reprimanded him for failure to comply with the salutation policy, and warned that future violations would bring “further corrective actions” that could include pay reductions and termination. En route to the written reprimand, the University rejected at least two resolutions Meriwether proposed: (1) that Meriwether refer to Doe simply by her last name (even though, presumably, Meriwether would continue to use “Mr.” and “Ms.” in conversing with all other students); and (2) that Meriwether comply with the school’s policy and use students’ preferred pronouns but add a disclaimer in his syllabus “noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity.”

After a faculty union grievance process (the faculty at Shawnee State apparently is unionized) did not bring him satisfaction, Meriwether filed suit in federal court bring claims under: (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the Fourteenth Amendment; (3) the Ohio Constitution; and (4) his contract with the University.

The federal district court dismissed all of Meriwether’s federal claims and declined to exercise jurisdiction over the supplemental state-law claims. The Sixth Circuit reversed as to the First Amendment causes of action, holding that Meriwether had stated a valid claim under both the Free Speech and Free Exercise Clauses of the First Amendment. In resolving the Free Speech issue (the only one we have space to address in this column), the Sixth Circuit panel held that although Meriwether is a public employee, the framework the Supreme Court has erected to govern, as a general matter, free-speech claims by government employees, spelled out 15 years ago in Garcetti v. Ceballos, does not apply because the Court in Garcetti explicitly declined to decide whether its framework should be used for “speech related to scholarship or teaching.”

Instead, said the Sixth Circuit, older cases from the 1950s and 1960s, involving the imposition of McCarthy-era loyalty oaths on all public employees, including public educators, spoke grandly about the importance of preserving academic freedom for people who teach and write in American universities, and thus suggest that the Garcetti framework (under which the category of on-the-job speech by public employees, in which Meriwether’s teaching would fall, would ordinarily receive little First Amendment protection) ought not be used in this setting.

Instead, the court applied the pre-Garcetti case of Pickering v. Board of Education, under which even on-the-job speech by public employees is protected if it involves a matter of public concern, unless the speech would impair a sufficiently strong interest the public employer has in the operation of the public entity in question. In ruling for Meriwether, the court, in grand fashion, observed:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

In our view, this was an unfortunate ruling in two important respects: it may have reached the wrong outcome on the facts, and in doing so it made some unnecessary and arguably questionable law on a big decision — the extent to which Garcetti should or should not apply to the public higher education setting.

As to the first question (the correctness of the ruling on its facts), we believe the Sixth Circuit erred for several reasons. For starters, even under the Pickering balancing test the court purported to apply (which protects public employee speech more than does the Garcetti framework), the University should have prevailed. The Sixth Circuit rejected as insufficient the University’s argument that its policy helped it steer clear of a hostile learning environment that might itself violate federal law.

But whether or not respecting students’ preferred pronouns is itself required by federal anti-discrimination law, isn’t it obvious that a university has a strong interest in promoting a sense of equal treatment and dignity among its students so that the learning environment in the classroom liberates students to focus on the content at hand without having to simultaneously process difficult feelings of exclusion or disrespect? And if that interest is important, one can see how Professor Meriwether’s proposed “compromises”—of using the last name only for Ms. Doe but using “Mr. and Ms.” for everyone else (thus singling Ms. Doe out for different treatment in a way the whole class sees and hears), or of noting his objection to the university’s pronoun-use policy in the syllabus that students like Ms. Doe must look at every class day of the semester —do not address the problem.

Indeed, if the Sixth Circuit were correct, would a faculty member have a First Amendment right to refer to women students by their first names and men by using “Mr. [last name]”? Or calling Blacks by their first name but Whites by “Mr. or Ms [last name]”? Certainly providing equal salutation treatment without regard to race or gender identification no doubt constitutes an important pedagogical interest as to which universities are entitled to significant deference. (It might be a more difficult question if the University had punished Meriwether for his private social media posts in which he railed against the policy’s unwisdom, since that would be one step removed from the classroom learning environment itself.)

Moreover, it is far from clear that a salutation—the way that students are addressed or called on in class or elsewhere — itself constitutes the kind of distinctive academic-speech activity that may ever justify significant First Amendment protection at all when undertaken by a public employee, regardless of the applicable doctrinal framework. Certainly and importantly, the Sixth Circuit never explained what is distinctive about salutations at a university that implicates the development of new knowledge or intellectual debates. Salutations are generic and are utilized throughout public institutions, including K-12 public schools, courtrooms, and the myriad situations where public employees address their clients or the general public. In all these circumstances, government would have substantial discretion in regulating the scope and form of salutations, without regard to an employee’s conscientious reluctance to abide by the state’s requirements. Special constitutional protection for academics engaged in activities that are functionally indistinguishable from the conduct of all other public employees and which bear no relationship to the reasons why academic freedom and freedom of speech at public universities might merit unique free speech treatment requires more of an explanation and defense than the court’s opinion provided.

Another way to put the point is this: Meriwether’s objection to following the school’s salutation policy was based on its conflict with his personal politics, not a conflict with the content or viewpoint of the class he was trying to teach. Indeed, if he were trying to make a pedagogical point about philosophy (his field) by using the way he addressed students as an example or illustration of a particular philosophical viewpoint, important questions would be raised about whether it is appropriate to enlist students as props, or unwilling performance artists, for professorial demonstrations. (Certainly in med school, for example, a professor could be prohibited from incorporating his unwilling students as subjects of experiments he were trying to demonstrate to the class.)

Pulling back the lens, as a general matter it may not make sense to construe salutations to be pure, content-based speech rather than essentially conduct-infused interactions in which speech plays the same relevant but non-substantive role that “speech acts” do in so many social interactions. When a teacher takes attendance to determine which students are present in the classroom, that seems more like a mechanical exercise than the expression of substantive content germane to the course curriculum. Similarly, when a teacher calls on students who raise their hand to speak, this avoids the conundrum of too many students trying to speak at the same time, but this practice itself contributes little if anything to the substantive subject matter of the course.

We recognize that there is an expressive dimension to salutations, but that is hardly dispositive. The question is whether the salutation is in essence a form of interaction that allows decisionmakers to identify and distinguish one person from another (a rather mechanical goal) rather than convey a substantive, much less viewpoint-based, message. Putting Garcetti aside, when the DMV finally calls your name to come forward to renew your driver’s license, would we remotely think the salutation there is protected speech for First Amendment purposes?

Finally and relatedly — and this may be among the most difficult question raised by this case and not addressed by the Sixth Circuit — how do we differentiate speech from identity discrimination for constitutional purposes? As suggested above, if a professor calls on White male students by addressing them as “Mr.” followed by their last names and calls on Black men and all female students using only their first names, the university would be permitted to punish that practice. One could argue that the university’s rules do impinge upon the professor’s freedom of speech and academic freedom liberties but that this infringement is justified by the public university’s strong state interest in prohibiting race and gender discrimination. (As noted above, if this is the right way to analyze the problem under a Pickering balancing framework, the Sixth Circuit gave no reason why the university’s interest shouldn’t prevail in the present case as well.)

But there is an alternative way to understand this conflict, that needn’t even require resort to compelling university interests. It is often the case that distinctions drawn between protected classes, even if expressive in nature, are construed to be discriminatory conduct that does not implicate free speech guarantees at all. For example, Title VII prohibits employment discrimination on the basis of religion. It does not prohibit employment discrimination based on secular belief systems. From a speech perspective, this statutory scheme constitutes viewpoint discrimination. The Court has repeatedly held, after all, that religion is a viewpoint of speech. But no one argues that Title VII abridges freedom of speech in this way. For the purposes of this civil rights statute, religion is understood to constitute an identity (protected against discrimination) not a subject or viewpoint of speech.

The same analysis could apply to the terms used to address a student. To the extent that ignoring students’ professed genders when calling on them in defiance of university regulations is construed to be a form of identity discrimination, that determination could displace free speech review of the university’s requirements — just as prohibiting discrimination against students on the basis of their religion when calling on them could be understood as legitimate enforcement of civil rights principles rather than an abridgment of the professor’s freedom of speech.

For these reasons, we think the court should have ruled for the University in any event. And if it had seen things this way, it would have had no occasion to address the big and vexing question whether the government-protective Garcetti framework applies in the education setting. There are certainly arguments cutting both ways on this. In Garcetti, the Court ruled that as long as “public employees [are] mak[ing] statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” even if the matters on which they are speaking are of public concern.

To be sure, applying Garcetti to all academic settings would have pronounced effects in that no public educators would be protected by First Amendment academic freedom with regard to on-the-job speech. And deciding what is on-the-job speech is not always easy. The scope of what constitutes employee, as opposed to citizen, speech can be unclear. With regard to K–12 instructors, perhaps all of a teacher’s statements during class can be viewed as part of the job, but what of conversations with students out of class, during lunch period, or before the school day formally begins? More problematically, how do we determine the job parameters of university professors who are often expected — as part of the scholarship and service components of their job — to speak to government, the press, professional associations, and other audiences, and to publish articles and books for diverse dissemination?

Yet if Garcetti doesn’t apply, where does special First Amendment protection for public professors come from? Just as the Press Clause of the First Amendment has never been construed to give the institutional media special speech protections (and that is a good thing since the very idea of the institutional media has broken down due to the internet), so too it might be problematic to try to define and confer special protection on “professors.” (What about independent scholars at think tanks, and conspiracy theorists who purport to do scholarly research?)

The Sixth Circuit leaned a lot on cases from public educational institutions in which the Court rejected anti-subversive laws from two generations ago. But these cases should not be overread. The Government in these cases lost (and should have lost) because it failed to make any specific showings of disruption to government operations that the laws were addressing; instead, it was arguing that all civil service should be free of anyone who holds dangerous beliefs — not that a particular person’s belief, because of his or her particular job, was in fact or in all predictive likelihood going to interfere with government operations. Even the Garcetti framework and the leeway it affords government to regulate speech qua employee does not necessarily permit the government to use its employer status to “silence discourse, not because it [has any effect on] public functions but simply because superiors [in the government department or office] disagree with the content of employees’ speech” — precisely what government was trying to do during the early Cold War. So with or without application of Garcetti, those cases would have come out the way they did, and thus they don’t really offer much clear support for an academic freedom exception to generic First Amendment doctrine.

Finally, we note another way in which the federal courts in this case perhaps needlessly waded into this thicket. The district court declined to address Meriwether’s claims under the Ohio constitution or his contract with the University. We recognize that federal courts may not feel they are the best institutions to forge new state-law paths. But federal courts can make use of devices like certification of questions of law to state supreme courts. And in many respects these non-First-Amendment sources of law — especially state-law definitions of tenure and the like — may be better and more durable fonts of academic freedom protections than First Amendment doctrine. If public universities want to recruit and retain top-flight academics, they will likely have to promise certain expressive leeway (something implicit in the Sixth Circuit’s reference to the tradition of intellectual diversity and freedom in American higher education) and should be held to their promises. But if other public educational institutions choose not to make such promises, it is not clear that federal courts should be fashioning First Amendment law to force them to so do. Finally, judges need remember that rules empowering faculty members against administration rules can cut both ways. If more progressive administrations can’t rein in more conservative faculty practices, neither can conservative legislatures and boards of governors rein in more progressive professors.

April 12, 2021

The simple principle that can fix American law

[Cross-posted from The Atlantic]

By Aaron Tang

Aristotle once observed that “the virtue of justice consists in moderation.” By any measure, he would find little to admire in America’s modern judicial landscape.

In one sense, the problem is simply one of personnel: Precious few judicial moderates serve in America’s federal courts. This absence is most obvious at the Supreme Court, but courts of appeals and district courts suffer from it, too. The researchers Adam Bonica, of Stanford, and Maya Sen, of Harvard, have found, for example, that the present ideological distribution of federal judges resembles an inverted bell curve. We have lots of liberal and conservative judges, but few in between. Gone are the days of jurists like Sandra Day O’Connor, for whom the middle ground was a good place—not one to avoid for fear of being voted down in the Senate or lampooned as a “squish.”

Yet to focus on our nation’s dearth of moderate judges is to scratch at the surface of a much deeper problem. As a field, the law lacks a satisfying, middle-ground response to the core philosophical question that judges must face: By what legal theory should they decide difficult cases—ones in which the law is unclear and where any ruling risks inflaming division among the American people?

Liberal and conservative judicial approaches are, of course, well established. The late Ruth Bader Ginsburg captured the former approach when she testified during her confirmation hearings that the Constitution should be interpreted so as to govern “not just for the passing hour, but for the expanding future.” By contrast, her conservative successor, Amy Coney Barrett, is now the fourth self-professed originalist on the Court.

The rift between living constitutionalism and originalism is not merely an esoteric debate among judges. It is equally salient—and equally partisan—among the broader public. A recent Pew Research poll found that while 88 percent of liberal Democrats believe that the Supreme Court should “base its rulings on what the Constitution means in current times,” 79 percent of conservative Republicans say the Court should “base its rulings on the Constitution’s original meaning.”

But what is the judicial philosophy that occupies the middle ground? There is, of course, no way to split the temporal difference between originalism and living constitutionalism. Either the law’s meaning is fixed in time, or it isn’t. Some prominent academics have worked to re-brand originalism as itself a neutral and centrist approach. But on balance, the results have tended to track conservative views.

What America lacks today, in other words, is a judicial philosophy that can mediate the usual theories advanced on the left and the right. This absence might be every bit as much of a problem for our legal culture and legal system as the absence of centrist judges. Or, rather, it might be the underlying problem altogether. For without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?

Today’s supreme court offers a powerful lens through which to view this dilemma. In the aftermath of Barrett’s confirmation, progressives are fearful of the likely consequences of the Court’s new conservative supermajority. Some have suggested that, putting aside the possibility of eliminating the filibuster and enacting meaningful Court reform, Democrats’ best short-term hope is for two of the Court’s six conservatives to dial back the political temperature and look for centrist solutions in divisive cases. Although the Court has hardly swung left over the past several months, a surprising pattern of decisions suggests that a modest pivot to the middle might well be emerging.

Here is where the absence of a moderate judicial approach becomes crucial moving forward. Suppose Chief Justice John Roberts, whose concern for the Court’s institutional legitimacy is well known, is joined by a second conservative who cares about preserving the Court’s public image. Perhaps it is Justice Brett Kavanaugh, who shocked onlookers with a recent declaration that “the same-sex marriage right recognized in Obergefell” is a “very important right.” Or maybe it is Justice Neil Gorsuch, whose unexpected opinions last term rankled some conservatives. Even Barrett has shown surprising signs of moderation, as her early votes have aligned her closer to the chief justice than to staunch conservatives Clarence Thomas and Samuel Alito.

The trouble is, what comes next? Or, rather, how does a new center emerge? How might a bloc of institutionalist-minded conservative justices vote to reach moderate outcomes in the controversial disputes that come before them?

One option would be to pick, choose, and even trade off winners across a range of cases based on the justices’ best guess as to which outcomes would be most politically palatable. In this ad hoc approach, the pursuit of aggregate results approximating some rough vision of centrism would itself be the touchstone for decision—legal reasoning be damned. Indeed, some critics have argued that the Court’s recent centrist pivot is the product of precisely this approach.

This would be a recipe for disaster. Supreme Court justices are poorly equipped to make these kinds of political judgments. Consider Chief Justice Roger Taney’s apparent belief that the Court’s Dred Scott ruling would somehow settle sectional conflict over slavery, thereby averting a civil war. If anything, the justices’ political instincts are even less informed now, given the growing social and economic distance between them and the American public.

Ad hoc rulings of this kind would also suffer from a severe public-reason problem. Faced with the opportunistic and inconsistent rationales put forth by a Court that dresses up its political guesswork from one opinion to the next, the public would soon recognize naked political expediency—not principled legal reasoning—as the Court’s lodestar.

A Supreme Court interested in moderation would do better to explain its decisions in the language of a consistent legal principle. Legal theory offers two traditional contenders: deference to legislatures and stare decisis—deference to the Court’s own prior judgments. Recently, Roberts has drawn on both approaches. He explained his vote to uphold a California COVID-19 response as an exercise of deference owing to the fact that the Court, unlike a legislative body, “is not accountable to the people.” And he defended his surprising vote to strike down a Louisiana abortion regulation in June Medical Services v. Russo by citing stare decisis.

Each of these approaches, however, is beset by problems. As an initial matter, the two doctrines are often internally contradictory. June Medical is itself an example. The chief’s vote to invalidate Louisiana’s admitting-privileges requirement for abortion providers was a textbook application of stare decisis given that the Court had struck down an identical Texas law just four years earlier. Yet following that precedent amounted to a direct rebuke of state legislators.

More fundamentally, legislative deference and stare decisis are inadequate on their own terms. The notion of deference to legislatures grew in appeal during an era when the major question before the Court was whether to second-guess popular New Deal economic regulations. But the doctrine’s infirmity was soon exposed, when, during the civil-rights era, bigoted local and state officials pleaded for deference to racially discriminatory laws. From this perspective, Brown v. Board of Education signaled more than the Court’s overdue intervention in the great racial injustice of segregated public schools; it heralded the rightful end of legislative deference as an overarching principle of judicial review.

A similar problem plagues stare decisis. Like legislative bodies, sometimes the Court makes constitutional errors that require correction. Yet if taken to the extreme, stare decisis would compel the Court to stand by odious rules announced in cases like Plessy v. Ferguson and Korematsu v. United States. Stare decisis, like legislative deference, cannot be an “inexorable command”—a fact the Court itself has stated many times. But once the Court admits that it can discard these doctrines at its pleasure, what constraining role is left for them to play?

All of this points to the fundamental problem that faces the Court’s institutionalist conservatives if they choose to pursue a path of judicial moderation. It is a problem for America’s broader legal culture, too, to the extent that one hopes the polarized segments of American society can ever discover common ground. Does any legal principle exist by which we can find our way there?

The year 2020 will long be remembered as a year of tragic and unparalleled adversity, from the onset of the deadly global pandemic, to glaring reminders of society-wide racial injustice, to Donald Trump’s ill-fated effort to steal the election. But even as we grieved, worried, and mobilized for change, something encouraging happened, unexpectedly, at the Supreme Court: The justices stumbled onto the beginnings of a compelling theory of judicial moderation.

It started last summer, at the end of one of the most monumental terms in recent history. Over a 25-day sprint, the Court handed down high-profile opinions concerning the rights of LGBTQ workers; the fate of hundreds of thousands of undocumented immigrants who had been brought to America as small children; impassioned efforts to obtain Trump’s private financial records; a controversial Louisiana abortion regulation; religious-school vouchers; and whether much of eastern Oklahoma remains an Indian reservation.

These cases raised genuinely difficult legal questions with enormous stakes. And in all of them, the Court’s decisions followed an intriguing logic. Rather than resting solely on some highly debatable conclusion as to a one-and-only “correct” meaning of the law—whether rooted in arguments over original meaning or in evolving precedent or societal values—the Court justified its rulings by pointing to an additional rationale: the goal of minimizing the harm of its decisions. The Court did so in a particular way—by identifying and ruling against the side with the greatest ability to avoid the harm it would suffer in defeat. (I’ve previously called this the “least harm principle.”)

Take, for example, last term’s blockbuster ruling in Bostock v. Clayton County, in which Gorsuch (joined by Roberts) stunned movement conservatives by holding that federal law forbids employment discrimination on the basis of sexual orientation. Much has been written about the particular brand of textualism that Gorsuch employed to reach this outcome, and rightly so. But that commentary has obscured an equally vital piece of Bostock’s reasoning: the opinion’s clear suggestion that, despite their defeat, religious employers have powerful legal options for minimizing their harm moving forward. It is no accident, in other words, that Gorsuch went out of his way to describe the “careful consideration” that such employers would receive in future cases should they request exemptions from federal anti-discrimination law under the free-exercise clause or the Religious Freedom Restoration Act. That is least-harm reasoning at its apex.

The same principle explains Trump v. Mazars. That case involved subpoenas issued by several Democrat-controlled committees in the House of Representatives seeking private financial records from Trump’s bank and accounting firm. The committees argued that the records were needed to inform potential legislation on issues like money laundering and foreign election meddling. The president contested the subpoenas, and the Supreme Court ruled in his favor. Critically, the Court did so because Congress has better options for avoiding the harm of defeat. For unlike Trump (and future officeholders), who would be powerless to avoid the intrusion of such subpoenas, the House could potentially secure the information it needed to legislate from subpoenas to other sources or narrower subpoenas to the president himself.

The Court, to be sure, has not consistently followed this approach; prominent counterexamples include cases in which the Court has upheld state laws burdening voting rights even where those states have other ways to protect their interests. But as I argue in a forthcoming law-review article, the least-harm principle remains firmly grounded in a broad tradition of high-profile decisions in which the Court has consciously bypassed arguments rooted in originalism or evolving social values and ruled instead to ensure that the losing side has ample alternatives to minimize its harm. Promisingly, the Court has shown signs of following this approach in a number of important cases this term, too.

The least-harm principle is moderate in the most logical of ways: By ensuring that losing groups have other avenues for redress, the principle prevents the destructive world President Joe Biden cautioned against in his inaugural address—one in which “every disagreement [is] a cause for total war.” The principle is neutral because the side that is best able to avoid its harm will differ based on the nuanced facts of each case, not political preferences—as cases such as Bostock and Mazars illustrate. And the least-harm principle is intellectually honest because it admits that judges will often be unable to discover clear answers to society’s deepest disagreements using lawyerly arguments about vague, ambiguous, and conflicting sources of legal meaning.

The least-harm approach is also judicially administrable. Consider, for example, the Court’s ruling in the DACA case, which invalidated the Trump administration’s effort to rescind protections for roughly 700,000 “Dreamers” because the administration failed to provide a “reasoned explanation” for its action. It is obvious which side would be better able to avoid the harms of a defeat. Unlike the Dreamers, who would have been powerless to avoid deportation had they lost, the Trump administration had “considerable flexibility,” as the Court pointed out, to rescind DACA, as long as it provided a sufficient explanation.

Opinions like these show how the Court is on the cusp of a powerful new approach for deciding hard cases. Yet the least-harm principle’s future is complicated by the recent change in the Court’s composition. No longer is Chief Justice Roberts, who either authored or joined last term’s prominent least-harm decisions, the median justice. How, then, will we know if the approach retains influence in the coming months?

A major test case currently pending in the Court will be revealing. The question in Fulton v. City of Philadelphia is whether the Constitution entitles a Catholic foster-care agency to an exemption from a general city rule forbidding discrimination on the basis of LGBTQ status. (The Catholic agency refused on religious grounds to certify LGBTQ foster parents.) The Catholic agency is likely to win the case; the major question is how it will do so.

One possibility is that the Court will write in sweeping terms, overruling long-standing precedent to confer a broad religious exemption to engage in LGBTQ discrimination. But the least-harm principle provides a narrower—and superior—ground of decision. Under it, the Court would explain that it is ruling against Philadelphia because the city has a sensible alternative for protecting LGBTQ people’s right to participate as foster parents: The city can compel religious agencies to refer LGBTQ applicants to other agencies that would gladly serve them. In Philadelphia alone, 29 such foster-care agencies exist. But as Kavanaugh implied in oral argument, this middle-ground approach would mean that religious agencies would lose in jurisdictions where no secular agencies were willing to serve LGBTQ applicants—for in such cases the government would lack any way to avoid harm to the LGBTQ community.

To be sure, progressives and conservatives alike might be skeptical of this principle as a first-best solution. To progressives, any defeat for their most cherished values might seem too much to stomach. Many on the right likely feel the same, and understandably so.

But the pursuit of victory by any means is what has brought the Court to this current precipice. To preserve the Court’s legitimacy, both sides of the partisan divide must come to terms with the prospect of some losses. And if that is so, then all Americans should hope for the kind of losses the least-harm principle calls for, where one side doesn’t get what it wanted precisely because it has other ways to protect its interests.

The greatest virtue of the least-harm principle, then, might be its potential to remind the American people that Supreme Court decisions are not the end of the road. Under it, losing groups retain the power to remedy the harms they suffer. A legal philosophy that awakens the people’s own sense of agency might not be the best that progressives or conservatives can hope for separately. But it might be the best they can hope for together: a legally and morally attractive judicial middle ground, where one has been missing for far too long.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

April 5, 2021

Blast from the past: The latest 'new' migrant crossing point in Arizona: A bird's eye view (April 24, 2006)

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

It appears that matters along the U.S./Mexico border have not changed that much.  In a blog post in April 2006, I wrote about a visit to the border in southern Arizona:

"Several members of the group visited one of the dormitories that temporarily housed migrants and had a haunting experience. . . . .

I saw a young girl, maybe four years old with her mother. Let's call her Elena because she kind of looked like my 10-year-old daughter Elena, with a dark complexion and dark, straight hair. As it turns out, young Elena was headed to the United States through the desert the next day with her mother. The trip would begin with a drive for about 1.5 hours over unpaved -- and very bumpy -- roads to the last stop. Migrants then would be taken by a smuggler for a short van ride and then left in the Sonoran desert. With a guide, they would walk 3-4 miles to the border and then for as many as 20-40 miles through the desert, where hopefully a ride would meet them there and pick them up to take them to the interior of the United States. Elena seemed very young and quite small. I could not help but wonder with sadness, would she make it? Would she suffer? Later, after our guide told the group that we probably had met some people who would die on the journey, I thought about Elena.


The desert, filled with mesquite, is dry as the proverbial bone. The high temperature averages 105 degrees in the summer. It was a `cool' 80-90 degrees during our visit. We walked some of the migrant trials on the U.S. side, setting off some sensors and bringing a bevy of Border Patrol all-terrain vehicles down on us. The trails are rugged, with dry creek beds filled with temporary shelters, empty water bottles, clothes, backpacks, shoes, and wrappers from snacks. Every so often you would run across a piece of clothing or a child's shoe. It was eerie and one could only wonder what the journey would be like at night or in the throes of confusion due to dehydration on a deadly hot day. Getting lost would be easy for the terrain and mesquite all look alike.

Hundreds of migrants die in this very desert every year, with thousands having died in the deserts along the U.S./Mexico border since the United States ramped up border enforcement in 1994. People in the Tucson area know of the hundreds of deaths that occur each year in the unforgiving desert. Groups like the Samaritans and Humanos Derechos try to provide assistance but migrants still die. Congressman Raul Grijalva who represents southern Arizona and voted against the Sensenbrenner bill, has a good sense of the issues. Grijalva addressed the journalists at the University of Arizona last week. When asked about why Congress generally seemed unconcerned with the thousands of border deaths and in fact seems eager -- indeed, dead set -- to add to the enforcement budget, he said that many members of Congress simply viewed migrants as `collateral damage' of the border enforcement efforts.

As I returned home, I kept wondering whether young Elena had successfully entered the United States, or whether she had ended up as `collateral damage' in the war on `illegal aliens.'"

It appears that there are more unaccompanied minors making the journey North than in 2006.  Otherwise, many aspects of the journey remain the same.