April 27, 2020

A constitutional right to literacy for Detroit's kids?

[Cross-posted from the New York Times]

By Aaron Tang, Ethan Hutt and Daniel Klasik

Already ravaged by poor health outcomes and joblessness before a crushing wave of Covid-19 cases, the people of Detroit received welcome news Thursday in the form of a long-awaited ruling from a federal Court of Appeals. In Gary B. v. Whitmer, a three-judge panel on the Sixth Circuit Court of Appeals held that Detroit's students enjoy a "fundamental right" to literacy under the United States Constitution. If allowed to stand, this landmark ruling could force the State of Michigan to dramatically improve the quality of education offered to thousands of Detroit's most disadvantaged students.

Sadly, the decision is likely to be reversed. The political and economic reality is that if poor children and children of color in Detroit are ever to have the schools they deserve, state elected officials - not the courts - will need to be the ones to deliver it.

The student plaintiffs in Gary B. v. Whitmer alleged that several of Detroit's lowest-performing public schools employ teachers without appropriate training, lack basic instructional materials like textbooks or supplies and occupy decrepit buildings infested with vermin. "If proven true," the court held, these allegations "would demonstrate that [the plaintiff students] have been deprived of an education providing access to literacy."This candid recognition of the unjust educational conditions facing Detroit's poorest children is admirable. But there is almost no chance that the Sixth Circuit's ruling will ever be enforced. The entire Sixth Circuit, of which only five of the current 16 members were appointed by Democratic presidents, will almost assuredly take up the Gary B. panel opinion. And the panel's ruling is unlikely to survive this review. Even if it does, the conservative majority on the Supreme Court is exceedingly unlikely to let it stand.

This is because the panel's ruling relies on a constitutional law doctrine known as substantive due process. While progressive judges and academics have generally supported it, conservatives have been less sympathetic. There is little reason to think the conservative justices - who have long expressed disdain for this line of cases, which include controversial rulings such as Roe v. Wade - would change their minds to guarantee a federal right to literacy. And historically, conservatives have fervently championed local control in education over federal edicts from Congress (to say nothing of edicts from unelected judges).

In addition to the political challenges to the federal right to literacy, there is another obstacle: the economy. In a forthcoming paper in the Washington University Law Review, we analyzed more than 300 state-level rulings concerning state constitutional challenges to school funding. We found that one of the most powerful predictors of whether a court will ultimately impose liability on a state is the condition of the national economy: For every percentage-point reduction in national G.D.P. growth in the year of the ruling, judges are 6 percent less likely to rule against the state. Why? Our best sense is that judges grow more reluctant to issue costly liability rulings that would require states to raise taxes or cut essential services when their budgets are already deeply in the red. Given that America is about to experience a painful economic retraction this quarter with little relief in sight, our findings bode especially poorly for children.

What does this mean for Gary B. and the children of Detroit? Even if the Sixth Circuit panel's ruling survived further review, the decision only settles the legal question of the existence of a fundamental right to literacy. It sends back to the district court the critical factual question: namely whether Michigan actually deprived Detroit children of that right - a right the court itself characterized as a "basic minimum education." And because the state will almost certainly introduce competing evidence about the quality of education available to Detroit children, the district judge in this case (who already ruled against the plaintiffs in the very opinion the Sixth Circuit panel reversed) might be tempted to conclude in the face of a dire budget shortfall that Michigan did enough - even if just barely.

Given this, Detroit's citizens shouldn't rely on the federal courts to enforce educational equality. But there is hope. It rests on other side of the case caption - with the named defendant, Gov. Gretchen Whitmer of Michigan.

As a candidate, Ms. Whitmer criticized Gov. Rick Snyder for opposing the Detroit plaintiffs' claim to a right to literacy. But rather than reverse Mr. Snyder's position once she took office, Ms. Whitmer instead avoided the issue by arguing that the Sixth Circuit should dismiss the plaintiffs' suit on alternative grounds.

The Sixth Circuit's ruling that Detroit children do, in fact, enjoy a constitutional right to literacy should spur Ms. Whitmer into action. A legislative solution to invest dramatically more resources in Detroit's schools would work wonders for the state's long-term economic outlook - perhaps a compelling argument Ms. Whitmer can make to Michigan's Republican-controlled Legislature. Such a solution wouldn't rely on the courts. And most importantly, it's what the city's children deserve.

March 9, 2020

What If the Court Saw Other Rights as Generously as Gun Rights?

[Cross-posted from The Atlantic]

By Aaron Tang

This is an essay about two words no one wants to see in the same story: guns and schools. But this isn’t about school shootings. This is instead about two starkly different social-activist groups: gun-rights proponents and educational-equity advocates. It’s about their steadfast pursuit of wildly divergent civil rights. It’s about a surprising similarity in their legal strategies. And more than anything, it’s a story about law and ideology, and the difficulty of deciding the former without the influence of the latter.  

Both groups have long courted the Supreme Court’s intervention. Spearheaded by new leadership at the NRA in the late 1970s, gun-rights activists engaged for decades in an effort to persuade the Supreme Court to recognize an individual Second Amendment right to bear arms for self-defense at home. The Court ultimately enshrined that right 12 years ago in D.C. v. Heller, displacing a long-standing consensus to the contrary. In the years after Heller, however, conservatives such as Justice Clarence Thomas frequently complained that the Court had ignored this fledgling right by refusing to expand its reach beyond the facts of Heller itself, effectively resigning the right to “second-class” status.

Second-class no more. In New York State Rifle & Pistol Association v. New York, a major case argued in December, the Court appears poised to expand the Second Amendment to protect gun possession outside the home as well. Just how far is an open question, though gun-rights groups have focused for now on enshrining a right to transport guns to shooting ranges and second homes.

For educational-equity advocates, the Court’s involvement has not been as helpful. The Court declared in 1973 that the Constitution guarantees no right to an education. That ruling paved the way for today’s radically unequal public-school spending patterns—patterns that reinforce and exacerbate existing socioeconomic and racial inequalities.

Like the gun activists, educational-equality proponents have not given up their vision of a constitutional solution. Equity advocates’ present litigation strategy is exemplified by a case known as Gary B v. Whitmer, which is currently pending in the United States Court of Appeals for the Sixth Circuit. The complaint in the case is painful to read: Many classes in Detroit public schools are taught by unqualified substitutes, and many classrooms use textbooks that are decades old, or lack them altogether. School buildings are in complete disrepair; the temperature had risen to 110 degrees in one building because of the lack of air conditioning, and students have to wear jackets and hats inside a number of schools during the winter months because of the lack of heat.

These schools, the plaintiffs argue, have deprived Detroit schoolchildren of their basic right to literacy, in violation of the equal-protection and due-process clauses of the Fourteenth Amendment. A district judge rejected the plaintiffs’ theory in 2018, but a panel of judges on the Sixth Circuit Court of Appeals seemed more receptive during oral argument in October. And regardless of the outcome of the case in the Sixth Circuit, the Supreme Court will likely have the final say, perhaps as early as in 2021.

At first glance, the gun-rights movement and the pursuit of educational equity seem to have little in common. But they in fact share an approach: Both promote arguments that rely on what are called “implied” or “unenumerated” constitutional rights.

Start with the gun activists’ position in New York State Rifle & Pistol Association. One of their primary objectives is to vindicate a constitutional right to transport their firearms to any shooting range of their choosing. (New York City forbade certain gun owners with premises licenses from bringing their guns to shooting ranges outside city limits—at least, that is, before the city and state both amended the law to permit such travel. The gun-owning plaintiffs wanted to shoot at ranges in New Jersey.)

The argument for a constitutional right to train at any shooting range is far from obvious. The Second Amendment speaks of a right to “keep” and “bear” arms, but says nothing about a right to train or practice. And indeed, cities and states at the founding often restricted gun owners to practicing only at prescribed locations.

So what do the gun activists argue? It’s worth reproducing this argument from their brief verbatim, with emphasis added to a single word: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use … after all, the core right to keep and bear arms for self-defense wouldn’t mean much without the training and practice that make it effective.” The Second Amendment may say nothing about the right to practice at a shooting range of one’s choosing, in other words, but that right ought to be recognized implicitly because it is important for an express constitutional right to have full meaning.

Now consider the argument advanced by advocates of a constitutional right to basic literacy. Like gun activists and their right to firearms training, educational-equity advocates recognize that the Constitution says nothing explicit about education. But surely a guarantee of basic literacy skills must be implicit in the document in order for its express rights to have meaning. As the Gary Bcomplaint puts it, “without access to basic literacy skills, citizens cannot engage in knowledgeable and informed voting,” cannot exercise “their right to engage in political speech” under the First Amendment, and cannot enjoy their “constitutionally protected access to the judicial system … including the retention of an attorney and the receipt of notice sufficient to satisfy due process.”

The identical logical structure that underpins these otherwise distinctive arguments presents a puzzle for the Supreme Court. How can it in good faith accept a theory of implied constitutional rights for gun owners only to reject the same argument for schoolchildren? Yet the consensus among close followers is that this is the most likely outcome: Gun-rights activists believe the Court is primed to deliver them a victory in New York State Rifle & Pistol Association, while educational-equity advocates recognize that the Court’s conservative majority is unlikely to rule in their favor.

Should it come to pass, a pro-gun, anti-schoolchildren result would reveal some bleak lessons about the Supreme Court and the influence of political ideology on its justices. When logic cannot support the Court’s divergent decisions, the public is left with the impression that the Court is just engaged in politics by another name—that the “Supreme Court is not a court and its justices are not judges.” This has happened before: The Rehnquist Court famously took a cramped view of Congress’s power to regulate violence against women and (ironically enough) gun possession in school zones under the commerce clause. But when faced with a similar attack against Congress’s power to criminalize homegrown-marijuana production and use, the Court did a sudden about-face, broadly defending congressional authority.  

Perhaps, then, a neutral theory of implied rights—one founded on first principles instead of politics—ought to shape constitutional law. Under such a theory, starting with shared values seems fitting. To that end, consider Chief Justice John Marshall’s famous declaration two centuries ago that “we must never forget that it is a Constitution we are expounding.” A constitution’s very “nature,” Chief Justice Marshall explained, “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”  

Put another way, implied rights are a necessary consequence of the shared effort to live in a democracy bound by a timeless and embracing constitutional document. The Constitution is short for a reason: It lets people work out their problems over time, as they develop. Thus, many of America’s proudest judicial moments champion implied rights: the right to vote in state elections, the right to appeal a criminal conviction, and even the right to procreate. Like the right to vote, in particular, the right to education is “preservative of other basic civil and political rights,” and should be recognized for the same reason. And if one agrees with Heller’s individual, self-defense interpretation of the Second Amendment right—an assumption that, to be sure, is subject to powerful counterarguments—then an individual right to train with firearms would be entitled to the same logical underpinning.

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

 

 

February 10, 2020

What's Really at Stake in the Supreme Court's Religious School Vouchers Case?

[Cross-posted from Harvard Law Review Blog]

By Aaron Tang

The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools.  The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be used in aid of a religious school. 

Now the Supreme Court is set to decide if Montana’s application of its no-aid-to-religious-schools provision was itself unconstitutional.  The question is profoundly important because at last count thirty-eight states have similar prohibitions in their constitutions.

For proponents of religious education, oral argument could hardly have gone better.  The only Justice who asked probing questions of both sides was Chief Justice Roberts, but even he tipped his hand in analogizing Montana’s action to an outright instance of racial discrimination.  Suppose a state were to “buil[d] parks and pools,” the Chief began, but then decide that “if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program. . . . That wouldn’t be good under your view, would it?  [Yet] how is that different than religion, which is also protected under [the Constitution]?”      

Given the likely outcome in the case, what are progressives to do?  It depends on what we really think is at stake in this case.  There are three possibilities.

One worry is that by striking down state no-aid provisions, the Court will threaten the wall between church and state by forcing states to subsidize religious education.  But this isn’t quite right: nothing in the Supreme Court’s looming decision will force states to enact private school vouchers at all.  As even counsel for the families challenging the Montana Supreme Court decision conceded, a state would be perfectly free to fund only its public schools, thus offering notaxpayer dollars to any private school, religious or secular.

The core constitutional principle in the case, in other words, isn’t the fear that states will use public dollars to establish religion over secularism (or one religion over another).  The principle is instead one of equal treatment: if a state decides to offer public funding to secular private schools, must it treat religious private schools equally?  That is a less objectionable demand—indeed, there is broad support for the general notion that people should not be subjected to disfavored treatment on the basis of their religion.  Federal anti-discrimination law, for instance, already forbids employers to fire employees because of their religion.  It’s not a far leap to think a similar rule should apply to institutions, too.  Things would be vastly different, to be sure, if public dollars were used to force unwilling students to attend a religious school.  But worries about government coercion or endorsement are mitigated when, as here, voucher-using families choose to do so on their own free will.

A second possibility is that this case is not actually about religion, but rather about school vouchers.  On this view, the progressive nightmare in Espinoza is that it will lend further support for the private school choice movement.  As Democratic presidential hopeful Senator Elizabeth Warren puts it, Democrats should oppose vouchers because they “diver[t] public dollars from traditional public schools.”

But is that necessarily a bad thing for Montana school children?  It turns out the research evidence is far from conclusive on either side.  Four recent studies have found significant negative effects from voucher use on participating students, but eight earlier studies found modest positive effects.  Complicating matters further, a leading survey of research recently concluded that “virtually all of th[e] studies” of voucher effects on public schools “find that public-school achievement increases” after a voucher program is introduced, though some of that effect may owe to the power of school accountability generally.  Vouchers, in short, may actually spark improvement in our public schools.  And at a minimum, vouchers offer a modicum of educational choice to low-income parents—choices that their more affluent counterparts already enjoy.

Given this uncertain evidence, it strikes me that the battle over school vouchers is not a worthwhile hill for progressives to die on.  In fact, progressives generally support the use of taxpayer dollars at private schools when the public schools fail students with disabilities; perhaps the same should be true for low-income students, too. 

There is, however, one more issue at stake in this case that progressives ought to take to the mat: nearly one-third of the private religious schools that participated in Montana’s voucher program expressly discriminate against LGBT staff and/or employees.  A prior study estimated roughly fourteen percent of religious schools nationwide have similar policies.  Here’s an example from the one participating Montana school’s handbook:

“Heritage Christian School reserves the right to . . . reject students, either new or current, at its sole discretion on the basis of . . . lesbian, gay, bisexual and/or transgender conduct.” 

It is one thing for a religious school to demand that it not be subjected to discrimination in the receipt of generally applicable benefits like a private school voucher program.  It’s quite another for a religious school to demand non-discriminatory treatment even as it engages in its own discrimination against its students.  The latter is, to say the least, not ok.

So what are progressives to do?  One idea is for progressive lawmakers to offer their support for private school voucher programs that are available to low-income students to attend secular and religious schools alike, conditioned on the requirement that receiving schools may not discriminate on basis of LGBT status, race, or other protected characteristics.  Under that neutral, generally applicable (and therefore constitutionally permissible) rule, all private schools—religious and secular—would be eligible to receive the voucher so long as they follow basic anti-discrimination norms.

Such an approach might create a broad, bipartisan consensus around shared values: religious schools shouldn’t be punished just because of their affiliation; private school choice should be available to low-income students so long as the evidence continues to suggest it may be beneficial; and crucially, no private school—whether religious or not—should be allowed to discriminate against its students.  The latter point in particular enjoys widespread support in our society: a recent survey found sixty-nine percent of Americans favor laws protecting LGBT persons from discrimination.

Not only would such a compromise preserve basic equal-treatment values that progressives care deeply about, it would also force conservatives to admit what they really value, too.  Many conservatives, I believe, will be more than happy with eliminating the differential treatment of religious institutions and promoting school choice for disadvantaged students.  These principled conservatives should gladly support a voucher policy with anti-discrimination provisions. 

And for any conservatives who want Espinoza to stand for the proposition that they can use taxpayer dollars to discriminate against members of the LGBT community?  They would be forced to say those untenable words aloud.

October 22, 2019

The Supreme Court is poised to blow a giant hole in gun control. Here's how the liberal justices can intervene

[Cross-posted from the Harvard Law Review blog]

By Aaron Tang

Lost in the shuffle of a busy October at the Supreme Court—one filled with high profile developments concerning the right to abortion and the treatment of LGBT workers—was a single, ominous sentence buried away on page eleven of the Court’s first orders list of the Term: “The Respondents’ Suggestion of Mootness is denied.”  Despite its opacity, this single sentence is the clearest signal yet of the impending doom for critical gun control laws currently in force in eight states and Washington, D.C.

To back up a bit, the case in question is New York State Rifle & Pistol Association v. City of New York.  It involves a Second Amendment challenge brought by gun rights activists against specific restrictions that New York City—the respondent in the case—placed on their ability to travel with their firearms. 

The Court granted certiorari in January, which was itself a bad sign for gun control proponents—the City’s restrictions were upheld in the lower courts and no other federal court has reached a conflicting conclusion, leaving the Court little reason to take the case other than to reverse the decision below.  But the Court tipped its hand still further when it denied the City’s request to dismiss the case as moot in light of intervening city and state laws, both of which granted the challengers the exact relief they requested in their complaint.  If any of the conservative Justices were at all interested in avoiding this highly charged dispute, by far the easiest course would have been to accept the City’s Suggestion of Mootness, given that the challengers had already gotten all that they had asked for.  Their refusal to do so is a strong signal that the conservative majority is poised to issue a blockbuster ruling that will expand the right to carry guns outside the home.  Such a ruling would add insult to injury for countless communities that have been ravaged by gun violence, a number that is growing rapidly due to the striking increase in mass shootings across the nation.

But all is not lost.  The liberal Justices in the minority have a last-ditch strategy that would sacrifice the specific gun restriction at issue in this case, yet save a number of far more critical gun control measures around the county.

To see how, it’s important to start by recognizing just how narrowly the challengers framed their lawsuit, at least initially.  The suit challenges a New York City regulation requiring owners of city-conferred “premises licenses” to keep their guns inside their homes at all times, with two exceptions: to go hunting at an authorized area, or to train at one of seven shooting ranges in the city.  Without a premises license—or a far-more-difficult-to-obtain “carry license,” which requires a significant demonstration of an applicant’s individualized need—city residents are not allowed to keep guns in their homes at all.

Three individuals and the New York State Rifle & Pistol Association sued, asking for two additional, yet modest exceptions to the general restriction on travel by premises license holders: the ability to bring guns to shooting ranges and second homes outside the city.  Critically, the plaintiffs did not challenge New York’s carry license regime, which is the more significant law that prohibits most city residents (i.e., those that cannot show particularized good cause) from carrying concealed firearms in public. 

But the challengers now make clear in their brief before the Court that they are no longer interested in just the two modest travel freedoms for premises license holders.  Instead, the challengers want the Court to issue a sweeping ruling that “the Second Amendment protects a right to carry arms outside the home,” period.  Such a right, the challengers, argue, would “include” travelling to shooting ranges and second homes.  But it would also call into doubt the crucial limits New York places on who may obtain a general carry license, not to mention similar limits in place in seven additional states and Washington, D.C.  It is these general limits on public carry, in other words, that the challengers really wish to invalidate in the hopes of creating a nationwide right to carry firearms in public.  But it also the public carry limits that the City (and gun control proponents more generally) should be especially interested in defending: research shows that restrictive public-carry licensing regimes are associated with a 13%-15% aggregate reduction in violent crime.   Whether premises license holders may bring their guns to second homes and shooting ranges outside the City seems a minor issue by comparison.

Recognizing these high stakes, New York City and State officials earlier this year wisely granted the challengers the narrow relief they requested: both the City and the State enacted new laws affording premises license holders the right to bring their firearms to out-of-city shooting ranges and to second homes.  Under usual principles of constitutional law, these concessions would have mooted the case, leaving no need for an opinion on the broader contours of the Second Amendment right to bear arms.  And so, in July, New York officials asked the Court to dismiss the case.

That is the request that the Court denied in its October 7 orders list.  That decision, in addition to the likely political dispositions of the five Justices in the conservative majority, puts the four more liberal members of the Court in a difficult spot.  One doesn’t need a fancy law degree to know that, given their conservative colleagues’ refusal to duck the issue on mootness grounds, there are likely five votes to invalidate the City’s gun restriction on the merits.  But how the Court does so—and how the City loses—can make a world of a difference.   

It turns out the Second Amendment argument is not the only constitutional challenge in this case.  For understandable reasons, most observers have focused on that argument, since it is that constitutional provision that can trigger the greatest upheaval in local and state efforts to regulate firearms.  But there is another constitutional challenge worthy of our interest: a challenge based on the Dormant Commerce Clause.

Under longstanding precedent, the Dormant Commerce Clause doctrine forbids states (and cities) to discriminate against interstate commerce.  To illustrate this rule and its sensibility, suppose that New Jersey, in an effort to prop up its restaurant industry, passed a law forbidding its residents to eat at New York City restaurants.  One might imagine New York getting angry and retaliating, passing a similar law prohibiting its own residents from eating in New Jersey.  New Jersey might then escalate, forbidding all commercial interactions between its own residents and New York.  Before long, states around the country might be engaged in destructive tit-for-tat trade wars.  Thankfully, Dormant Commerce Clause doctrine stops this from happening: under it, Congress alone—not the states—has the power to regulate interstate commerce.  

Given this rule, the travel restrictions imposed by New York City’s premises license seem constitutionally dubious for reasons having nothing to do with the Second Amendment. Just as New Jersey can’t forbid its residents to eat at New York City restaurants, New York City can’t forbid its residents to bring their guns to New Jersey shooting ranges. Sure, the former market is obviously larger than the latter, but market size is immaterial (indeed, one of the Court’s most cited Dormant Commerce Clause cases had to do with the Arizona cantaloupe market). What matters is that states cannot discriminate against commerce in other states—which is quite arguably what the City’s premises license does vis-à-vis out-of-state shooting ranges. A similar argument could be made about the City’s former restriction on traveling with a gun to a second home: it is facially discriminatory against the out-of-state home purchase and rental markets.

Suppose the four liberal Justices expressed their willingness to join an opinion striking down New York City’s premises license restrictions on this Dormant Commerce Clause ground. For his part, Chief Justice Roberts might be especially interested in crafting a majority opinion on this rationale, since it would produce a unanimous ruling in favor of the challengers: at least five votes based on the Commerce Clause, with perhaps a concurring opinion based on the Second Amendment.  Indeed, it is possible that Justices Alito and Kavanaugh might join the Dormant Commerce Clause majority as well, viewing that as a worthwhile compromise ruling in favor of gun owners that does not inject the Court into the heated, broader nationwide argument over the Second Amendment and public carry limits.  (Justices Thomas and Gorsuch have expressed more doubt about the Dormant Commerce Clause generally).  Even with a concurring opinion on the Second Amendment ground, a unanimous decision in favor of the gun owners would convey the Chief’s famous admonition that “[w]e do not have Obama judges or Trump judges,” certainly more than a polarizing Second Amendment decision that breaks along predictable partisan lines.  And for the liberals, the crucial result would be to make no new law on the Second Amendment.  That, in turn, would allow the vital general limits on public carry in New York, D.C., and elsewhere—the kind of sensible gun restrictions that have saved countless lives over the years—to survive another day. 

March 27, 2017

Reverse Political Process Theory

This post is about an article entitled Reverse Political Process Theory, which will appear in the Vanderbilt Law Review (forthcoming 2017).

The article is the first of two papers to take up an intriguing phenomenon at the Supreme Court: the Court's recent practice of granting what seems to be special, heightened constitutional protections to politically powerful entities. 

This observation may strike some as counter-intuitive.  After all, when one thinks of political power in constitutional law, the reflexive move is to consider Footnote 4 of Carolene Products and John Hart Ely's political process theory, under which politically powerless discrete and insular minority groups are to receive special constitutional solicitude.  But the reality is that the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. One need only consider as evidence the series of decisions in the late 1970s and 1980s reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, or the Court's more recent decision in Obergefell v. Hodges upholding the right to same-sex marriage based primarily on the fundamental nature of marriage, rather than the political status of gays and lesbians.

I argue in the Article that the Court has gone further than to merely reject the notion that powerless discrete and insular minority groups alone should be entitled to heightened judicial solicitude. In multiple doctrinal areas, the Court has reversed the theory's core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all the while withholding similar protections from less powerful counterparts.  For example, the Supreme Court has recently granted large corporations a special defense against general personal jurisdiction under the Due Process Clause, allowing powerful, multi-national businesses to evade suit in U.S. forums despite having far more extensive contacts there than small business and individual defendants.  Similarly, the Court has afforded sovereign defendants a far more generous rule when it comes to interpreting waivers of their rights than it has with respect to waivers of rights possessed by (often indigent) criminal defendants.

After identifying these doctrinal developments, the Article offers an evaluation of the Court's long and tumultuous relationship with political process theory. I conclude that even if one opposes the idea of granting heightened constitutional protections to the powerless-perhaps because one believes judges cannot avoid substantive value judgments when deciding which groups are so weak as to warrant extraordinary protection from the democratic bazaar-attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.