November 15, 2021

Op-Ed: Did the Supreme Court Tip its Hand on the Blockbuster Gun Case it’s Hearing Wednesday?

[Cross-posted from Los Angeles Times]

By Aaron Tang

For years, cities across the country have limited who may carry a gun in public. The Supreme Court will soon decide whether these limits violate the 2nd Amendment. The effect could be staggering — the difference between a few hundred guns and hundreds of thousands of guns on the streets of Los Angeles, New York City or Washington.

With stakes so high, commentators have naturally speculated about the outcome. Given the court’s conservative supermajority, many expect the court to dramatically expand the right to carry firearms in public.

Quietly, however — in a rare action taken through the court’s docketing procedures — some of the court’s conservative justices may have tipped their hand. What they’ve revealed is a fact-sensitive approach to the case that should give gun safety proponents reason for cautious optimism.

Start with a bit of Supreme Court 101. When a party that has lost in a lower court wishes to obtain the Supreme Court’s review, it files a petition for a “writ of certiorari.” The most important page of this petition is the first one, which sets forth the question presented by the case. As the court’s own rules explain, “Only the questions set out in the petition, or fairly included therein, will be considered by the Court.” The “question presented” thus dictates the scope of the court’s analysis.

It takes four justices to vote in favor of granting a “cert” petition. And in nearly every granted case, the justices vote to accept, verbatim, the question presented in the petition. (Occasionally the justices will limit their review to one of multiple questions in a petition, or add a threshold question to clarify the court’s power to hear the case. )

In the cases the court initially decided to hear this term, the justices accepted the exact wording of a question presented in all the cert petitions — all, that is, except the landmark gun rights case, New York State Rifle & Pistol Assn. vs. Bruen. In this case, they took the significant step of rewriting the question presented, and thus changed the trajectory of the case.

Rewriting a question may seem trivial. It is not. Last term, out of 58 cases, the Supreme Court rewrote the question presented in just one. Tellingly, the justices then decided that case entirely on the basis of the revised question, holding that an earlier decision by the court does not apply retroactively. The same was true in the year I clerked at the court: The justices rewrote just one question and proceeded to decide that case precisely on the new grounds.

In this term’s gun case, the revision seems equally crucial.

Current New York law forbids individuals to carry a gun in public unless they can demonstrate a “special need” for self-defense. In challenging this law, the original cert petition presented this question: “Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.”

To gun rights activists, the answer is an obvious no because all law-abiding citizens should have the right to carry a gun in public, regardless of whether they have a special need. And if the conservative justices had strongly agreed, the petition would probably have been quickly accepted as written.

But that’s not what happened. As the court’s docket shows, the justices first discussed the cert petition at a private conference in March, before debating it again at two additional conferences in April. In each conference, however, the conservative justices failed to produce the four votes needed to grant review. (None of the liberal justices are likely to have voted to grant the case because they almost certainly agreed with the lower court ruling upholding New York’s law).

Then, at another conference held at the end of April, the justices voted to grant the case.

What changed? The record indicates just one thing: The court rewrote the question presented, limiting it to ask “whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”

The rewritten question focuses the court’s review first to the matter of concealed-carry, rather than open-carry, licenses — a sensible move because that is the type of license for which the petitioners originally applied.

The second change is more important. Rather than asking about the right of all law-abiding citizens to carry guns in public, the court’s rewritten question focuses on just the original two petitioners — individuals who were denied special need licenses by New York. In doing so, the justices have made clear that the specific, factual circumstances surrounding the applications will be crucial to their analysis. (Otherwise, the original question presented would have sufficed.)

What, then, are the specifics of the applications? One of the petitioners, Robert Nash, explained in his application that he needed a concealed-carry license because of a “recent string of robberies in the area” around his home, including a robbery that occurred on his street just days before he filed for the license. Yet the New York licensing authority still rejected his application. In contrast, the other petitioner, Brandon Koch, openly admitted in his application that he did “not face any special or unique danger to his life.”

By training the question presented on these facts, the court hints at an outcome that both sides in the gun debate should be able to live with.

State laws that condition the right to public carry on a demonstrated need for self-defense could be constitutional, in keeping with a lengthy historical tradition of similar laws. So New York would be free to deny licenses to applicants like Koch who lack a special need, thus substantially reducing the number of guns on the streets. But states may not utilize a special need requirement as a de facto ban on all public carry. Doing so would infringe the 2nd Amendment right of those who face real and particularized dangers — such as Nash.

The Supreme Court has begun its 2021-22 term with its lowest approval rating in decades. A fact-sensitive, centrist ruling on gun rights would go far toward bolstering its public legitimacy.

November 15, 2021

What Trump Can Teach Us About Con Law Ep. 58: 'Executive Privilege, SB 8 Update, and Rust'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

An update on SB 8, Executive Privilege of presidential records connected with January 6th, and a short digression into criminal law about the tragic death on a movie set. Listen to Ep 58 of the What Trump Can Teach Us About Con Law podcast.

November 15, 2021

What Trump Can Teach Us About Con Law Ep. 57: 'The Eastman Memo'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

John Eastman, a mainstream conservative lawyer working for Trump, outlined a plan for VP Pence to declare Trump the winner of the 2020 election regardless of the votes. It didn't happen, but should we be worried about the memo when it comes to future elections? Listen to Ep. 57 of the What Trump Can Teach Us About Con Law podcast.

November 1, 2021

Review: 'Gunfight, My Battle Against the Industry that Radicalized America'

[Cross-posted from The Daily Yonder]

By Lisa Pruitt

On the 20th anniversary of 9/11 in September, J.D. Vance tweeted a photo of himself holding his young son amidst a table of guns.  He captioned it, “Took the toddler to a gun show this morning.  Saw some amazing historical weapons, some going back to the Civil War.” 

Vance is, of course, the author of the best-selling memoir Hillbilly Elegy, now running as Republican for the U.S. Senate from Ohio. 

I found the tweet curious.  After all, Vance has told us an awful lot about himself in all that he’s written, and he’s never held himself out as an outdoorsman, hunter, or gun collector. In his memoir, Vance did mention his Papaw giving him a BB gun.  And we know Vance did a stint in the Marine Corps, but his was a desk job, in “public affairs.”    

So what gives with the kid at the gun show? 

I suspect the answer lies in what Vance wished to communicate with his tweet—and who he wished to reach.  Vance has recently taken policy positions that indicate a right-ward lurch on a range of polarizing issues.  He notoriously retracted his 2016 criticism of Trump and has been chasing Trump’s endorsement for months.  But Vance may have accomplished more with that single tweet than with all his recent op-eds and policy statements combined.  After all, few messages will reach a MAGA voter as clearly and directly as a kid at a gun show.

As I thought about Vance’s tweet, though, I realized that in a different place and time—and from a different source—I would not have recoiled from a photo of a child at a gun show any more than I would have recoiled from a photo of a child accompanying a parent on an errand to the barber shop or an outing to the county fair. 

That’s because I grew up in rural Arkansas, in a place where hunting was so common and culturally significant that school was dismissed the first two days of deer season every November.  The local newspaper regularly published photos of kids as young as 10 years with the deer they’d bagged.  I’d wager that 90% of the households in my community owned guns, all used primarily for hunting and target practice, with a spectral need for defense of home and family at back of mind.  Implicit in this culture was a healthy respect for the lethality of these tools. 

But guns have long signaled something different in rural places than in urban ones.  Just as significant, guns now signify something radically different than they did a few decades ago.  In short, guns have become highly politicized, both a cause and a symbol of our nation’s accelerating polarization.    

If you’re curious about that shifting meaning and the rural-urban rift in relation to firearms, you’ll want to read Gunfight:  My Battle Against the Industry that Radicalized Americaa compelling and timely new book by Ryan Busse.   

Busse, who grew up rural in western Kansas and until last year was a gun industry executive, uses memoir as a vehicle for serving up a tell all on one of the nation’s most secretive, profitable, and powerful industries.  He takes the reader through step after increasingly painful step of how the firearms industry—effectively corralled and led by the National Rifle Association—became so mighty a force in American life and politics that many in Congress quake in their boots at the very mention of three little letters:  NRA.  

Two Factions of Gun Owners

Busse attempts to thread the needle between two broad factions of gun owners.  On the one hand are hunters and outdoors folk, the aficionados of guns like old-school, bolt-action rifles, pistols with artisan grips and such—the sorts of guns that are, or could become, family heirlooms.  The folks who own these guns are widely associated with rural America.  They’re the people I grew up with.

On the other hand are what the industry once pejoratively (and politically incorrectly) called “tactards,” those drawn to fire power, high capacity magazines, and the semi-automatic experience associated with so-called “black rifles.”  Interestingly, lots of folks also associate these guns with rural America, though no one needs a semi-automatic weapon to hunt game or to protect themselves.   

Busse is firmly in the former camp.  His love of guns and the outdoors—and his respect for both—drew him as a fresh-faced 20-something to his dream job with Kimber, a boutique manufacturer of rifles and pistols based in Kalispell, Montana.  The early rollicking pages of Gunfight exude a youthful enthusiasm. Those chapters are populated by colorful characters like Busse’s first boss at Kimber, an Aussie who ate three meals a day at the neighborhood strip club (who knew strip clubs served breakfast?) and a fellow Kimber salesman with a “world-class mullet,” a mustard-yellow pick-up, a dog named Ted Nugent (after the famously pro-gun rocker), and chronic girlfriend problems.

But as Busse climbs the corporate ladder, the gun scene in the United States shifts away from the old guard gun faction, which Busse calls “wise men,” and towards the tactards and their black rifles.  This is where the tale turns ominous—for both Busse and the nation.  There’s the bullet-proof glass erected at Kimber’s manufacturing facility to protect executives in the event a worker “goes postal.”  There are the crass jokes about a “back-to-school sale” on guns in the wake of Columbine.  Eventually, as Busse refuses to toe the industry line on politics, there are threats against him.   

This shift from old guard to tactard is illustrated well by two vignettes from Gunfight.

The before times are represented with a description of the Southwind Classic, an annual prairie dog hunt Kimber sponsored at the Kansas ranch of Busse’s youth.  The event gathered trade journalists to try the company’s wares and have a good time.  When a young writer showed up at the event in 2004 with an AR-15, the wise men of the industry 

huddled around the new kid to explain the unwritten rules of their polite gun society. … ‘Look, son “normal” people don’t use or shoot that kind of gun,’ one of them explained. … ‘We’re not like those tactards,’ someone said, referring to … fringe consumers who believed more in the rifles of militia building than the art and craftsmanship of the fine guns we were trying to sell.

Fast forward eight years to the after times.  Busse describes in chilling detail the Bushmaster XM-15 E2S Shorty AK that Adam Lanza used in the Sandy Hook school massacre in 2012: “specifically designed for professional military combat in close-quarter situations … like vehicles, terrorist-filled caves, and buildings with numerous hallways and doors—building like grade schools.”  Busse details the gun’s various upgrades to establish that Lanza was “equipped with the most lethal military weaponry ever made,” thus illustrating how the industry had shifted to cater to the very tactards the old guard had shamed and shunned less than a decade earlier. 

Busse argues that fearmongering and associated pressures within the firearms industry effectively fueled not only the development of guns like Lanza’s—guns “designed to win wars through efficient mass killing”—but also the demand for them:

“Social media accounts boomed. New companies were built. Fortunes were made. Lanza and his rifles were products of it all, and when he arrived at Sandy Hook and pulled out his own black rifle, there were no norms left to break.”

Studies in contrast like this one make Gunfight a menacing account of how quickly the firearms industry changed, in a deadly feedback loop with what Busse sees as a radicalized segment of America.  But it’s impossible to say which came first, the chicken or the egg?  That is, was the firearms industry fomenting the radicalization, as Busse asserts, or was it radical, right-wing forces outside the industry that prodded firearms manufacturers down the incendiary and deadly path they are still on?

Busse’s Big Pivot

Whether the genesis of the polarizing winds was from within the industry or outside it, Busse saw the tornado taking shape on the horizon well before Sandy Hook. Busse’s big pivot—at once personal and professional—came midway through the Bush administration when he spoke out in a high-profile venue against a Bush-Cheney plan to open public lands in the West to energy exploration.  Among the places at risk was Badger-Two Medicine, Busse’s most beloved Montana hunting grounds and a place sacred to the Blackfeet tribe. 

Busse didn’t see his pro-conservation position as being at odds with his employer or his industry, explaining he was “trying to help save places so we can sell more guns.”  But his stance attracted attention from across the political spectrum because it marked him as a turncoat, “a red-meat gun executive who criticizes a Republican.”  Busse writes of being “betrayed and embarrassed” at having “been duped into believing I was part of an industry that shared the values of my childhood—much of the talk about conservation and hunting was just another ruse to get people like me into the culture war.”  

Both the NRA and the National Shooting Sports Foundation came down on Kimber for Busse’s opposition to the Bush administration plan, and for a time, his job seemed to hang by a thread.  Yet the attention Busse garnered from his contrarian stance convinced him he could “exert an outsized impact by staying inside the industry.”  So stay he did.  By Busse’s account, he was a fly in the ointment of the firearms industry during that time, a consistent voice of moderation in the face of a freight train barreling in the direction of hate, intolerance, fear—and the attendant proliferation of military- style weapons available to anyone who wanted them.

Busse’s writing is clear, and the story thread of Gunfight is fast-paced and engaging.  He does a fine job of stitching together much of the recent history and politics of firearms in America.  But perhaps Busse’s greatest value add is having been in the room where it happened.  Busse was privy to industry decisions about marketing and re-positioning their wares to take advantage of shifting tides and emerging cultural forces. 

Among these forces was the role of Iraq and Afghanistan War veterans-turned-influencers, men like Kyle Best and Mat Lamb who developed massive followings on social media and inspired wannabes that the industry called “couch commandos,”

the millions of consumers who had never fought in a war, much less joined the military, but who nonetheless considered themselves experts simply because they scrolled through the social media feeds of [influencers] like Lamb and Best, and knew how to play first-person-shooter video games from the comfort and safety of their couches.

Thanks to the demand created by consumers like these, guns in “desert tan” finish became a standard feature of new product launches. 

Other aspects of gun marketing also morphed to meet the moment’s burgeoning new consumer sectors.  Corporate leaders had previously consulted with attorneys to avoid giving guns names that might expose companies to liability on the basis that they encouraged deadly  behavior.  Thus products had long been marketed with mundane names like Kimber Custom Classic, the Remington 870, and the Smith & Wesson Model 629.  But as the industry shifted to fuel sales to the new “tactical culture,” it embraced provocative names like the Ultimate Arms Warmonger and the Combat Super Sniper AR-10.

The pages of Gunfight are replete with illustrations of the power and greed of the firearms industry.  Take the bipartisan Manchin-Toomey amendment, introduced in 2013 in the wake of Sandy Hook.  Seeing some federal gun reform as inevitable—and even a good idea—a few industry players expressed early support for the amendment, a less restrictive option than one proposed by the Obama administration.

The Manchin-Toomey amendment would have done nothing but close the loophole that permits purchasers to avoid background checks when they buy at gun shows.  That law had long been a thorn in the flesh of those seeking regulation, in part because it was that very loophole that had enabled Dylan Klebold and Eric Harris to get their hands on the guns they used to kill 15 at Columbine High School in 1999.  Indeed, the loophole is another reason the photo of Vance at a gun show is, well, triggering—no pun intended—for those who support common sense gun reform. 

As Busse explains it, the Manchin-Toomey amendment would have had a negligible impact on gun sales, simply channeling purchasers to established retailers.  But for the NRA, stopping the law—any gun safety law—was about more than short-term profits.  It had become a matter of principle after Smith & Wesson secretly negotiated with the Clinton administration in 2000 to agree to several safety features and marketing limitations, e.g., trigger locks, not marketing firearms to the general public, in exchange for limits on liability associated with handgun violence. 

Combined with Clinton’s success with the Brady Bill and the assault weapons ban of the 1990s, Smith & Wesson’s move—considered a betrayal to the industry—had been too much for the NRA to bear; indeed, it also put both Clintons permanently in the cross-hairs of the organization.  After Smith & Wesson’s back room deal, Busse asserts, the industry rigorously policed internal dissent.  It embraced zero tolerance of gun safety regulation and developed a lobbying machine capable of achieving that goal.    

It was in that context that Wayne LaPierre and his deputies went for broke on Manchin-Toomey.  In the face of what looked like the worst of a string of public relations disasters for the gun industry over the course of a few decades—the massacre of 20 first graders and six educators—the NRA announced it would “score the vote” on the amendment.  This meant politicians’ NRA rating was at stake.  Too many senators, anxious to retain their A+ grade from the NRA, were unwilling to call the organization’s bluff.  Manchin-Toomey failed by a vote of 54-46. 

A Million Gun Sales after Sandy Hook

If the slaughter of innocents with a semi-automatic rifle inside the walls of a primary school couldn’t move the needle on gun reform, it got harder to imagine what could.  Equally shocking was the NRA’s decision to roll out a new slogan in the wake of Sandy Hook:  “The only thing that stops a bad guy with a gun is a good guy with a gun.”

Again, the firearms industry turned a national tragedy into a literal call to arms, which meant it conveniently doubled as a sales opportunity.  Not only did the slogan stick among a growing number of second amendment absolutists, a million guns sold in the week following the massacre.  Other staggering new records were set, as daily gun sales hit 30-to-40 times normal levels at national retailers like Bass Pro Shops and Cabela’s and tens of thousands of high-capacity magazines flew off the shelves in a single hour.

As Busse expresses it, the firearms industry had again succeeded “in converting an opportunity to make policy improvements into just another temperature increase for the national pressure cooker.”  It is that failure to make policy improvements that Busse seems to think portends ill for gun owners like him and other hunters, those of the old-fashioned, wise men variety.  Busse argues that if gun owners won’t accept moderate regulations, they risk far more sweeping regulations once the legislative tide finally turns on gun safety measures.  The weakness in his argument is that it’s nearly impossible to see that tide ever turning with sufficient force to threaten the sorts of guns the old guard values and owns.    

The firearms industry flex, like the one in response to Manchin-Toomey, is a move Busse documents through one mass murder after another—and through one Democratic administration after another.  The specter of regulation always goosed gun sales, in part because the firearms industry messaged paranoia—even lies—about the loss of gun rights.  During the 2008 presidential campaign, for example, the NRA claimed Obama would “ban use of firearms for home self defense,” “ban the manufacture, sale and possession of handguns,” develop plans to “ban virtually all deer hunting ammunition” and “erase the Second Amendment from the Bill of Rights and exorcise it from the U.S. Constitution.”  No evidence supported these assertions, but like the “alternative facts” that came to be associated with the Trump administration a few election cycles later, truth was beside the point. 

In talking about how the industry leveraged Obama’s Blackness to drive up fear, Busse doesn’t shy away from calling out a racial dog whistle.  For example, he summarizes the NRA’s message about Obama’s candidacy:  “the only thing worse than losing a culture was having it taken by a Black community organizer from Chicago with a law degree from Harvard.”  

Book Ignores Street Violence, Suicide

Yet Gunfight generally neglects other racialized and gendered phenomena associated with guns.  These include the role of firearms in killing thousands every year—disproportionately people of color—in street violence, as well as their role in an epidemic of intimate partner violence.  The word “suicide” isn’t used once in the book.  Busse also glosses over controversies associated with self-defense, though he does name names in placing the blame for the “Stand Your Ground” law that protected George Zimmerman when he killed 17-year-old Trayvon Martin in 2012:  Marion Hammer, LaPierre’s predecessor at the NRA.  The epidemic of children—including toddlers—who get their hands on guns and kill or wound people accidentally or purposefully also is not taken up in the book, though this phenomon surely implicates all gun owners and suggests that the gun safety norms that were a feature of my rural upbringing have fallen away.  All told, hundreds of thousands of lives have been lost to gun violence in the last decade, but Busse sticks almost entirely to headline-grabbing mass shootings to bolster his depiction of an industry with no internal controls and, he concludes, no decency. 

Following Busse’s initial dust-up with the firearms industry over his pro-conservation stance, he describes an enterprise in airtight alignment with the Republican Party and all its policy stances.  What Busse reveals, in fact, sounds remarkably like an early iteration of the sort of loyalty and purity tests we have seen more recently in American politics, though associated with the cult of personality as much or more than policy positions.  Consider that the few members of the GOP supporting an investigation into the Capitol insurrection of January 6 have become pariahs within their party.  

Indeed, while Gunfight was already in the publication pipeline on January 6, 2021, it’s interesting to revisit the line Busse draws between the old guard and the tactards in light of that day’s events.  Initial reports suggested that it was rural and working class white folks who’d stormed the Capitol, but subsequent investigation has revealed that relatively affluent suburbanites led the charge.  The coastal elites among whom I live and work tend similarly to associate rural folks with the black-rifle set—if they differentiate at all between Busse’s two factions of gun owners.  Guns have thus become one more reason for folks in my uber woke world to cast rural residents as the bad guys, though I suspect there is no more correlation between rurality and the take-no-prisoners, permit-no-regulation set in the gun industry than the media have found between rurality and the January 6 insurrectionists.       

Gunfight depicts the firearms industry as a big bully, but it hasn’t just bullied senators, members of Congress and, by extension, the entire nation.  Part of the book’s tension comes from the parallel bullying Busse experienced as a dissident within.  In one jarring scene, Busse’s boss at Kimber—angry at slumping gun sales at the end of Obama’s presidency—quips, “The problem is that we have Democrats. Let’s solve our problems, Ryan. How about we just kill all the Democrats? Well, all of them except you, Ryan. Let’s kill all the Democrats except Ryan.”  

In the face of such an abusive workplace, Busse’s explanation for why he stayed at Kimber as long as he did is not always convincing.  At several junctures, one fears he will sacrifice his marriage for the company and his career, as his wife repeatedly implores him to get out of the gun business.  In the face of these pressures, one assumes that Busse was not only stubborn, but presumably well compensated, perhaps anticipating that Kimber would go public and deliver a windfall.  That didn’t happen, and sanity—as well as the proverbial love of a good woman—ultimately prevailed when Busse left Kimber in mid-2020.

As should be evident by now, Gunfight is not just about guns.  It’s about how guns have become a potent symbol in the culture wars—of Right v. Left, Republican v. Democrat and—accurately or not—rural v. urban.  This book is also about greed, power, lobbyists, the post 9/11 wars, militias, and how we got to January 6.  At the end of the day, Busse may convince you that guns are not only literally killing people, they’ve become a potent symbol of the polarization that’s killing our democracy.

Lisa Pruitt is a the Martin Luther King Jr. Professor of Law at the University of California, Davis, and runs the Legal Ruralism Blog. She previously reviewed Senator Jon Tester’s memoir, Grounded, for the Daily Yonder and was interviewed for the Yonder’s Path Finders series in April 2021.

September 13, 2021

What Trump Can Teach Us About Con Law Ep. 56: 'Shadow Docket'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On the topic of legal procedure and how it relates to the Supreme Court's so-called "shadow docket" and the Texas abortion law. Listen to Episode 56 of the What Trump Can Teach Us About Con Law podcast.

August 9, 2021

Race, History, Guilt and the Olympics: Real-World Experience in the Classroom

[Cross-posted from The Hill]

By Alan Brownstein

If one looks behind some of the criticism directed at the teaching of Critical Race Theory, it appears that there is a particular objection to the idea that white students should be taught that they bear guilt or responsibility for past and/or present racism in our society.

As a professor of constitutional law, I do not teach Critical Race Theory. Still, when I teach about the Equal Protection Clause, the issue of guilt and responsibility is unavoidable. My focus is not on white normative accountability — It is on American guilt and responsibility. And in beginning the discussion, I find it useful to talk at least initially about the Olympics.

My first question to students is whether they ever experience pride for some achievement they had no role in bringing about. I offer the success of USA athletes at the Olympic games as an example. Most students agree that they experience considerable pride in the effort and success of USA Olympic athletes even though they had nothing to do with these results. It seems entirely natural and reasonable for Americans to take pride in the achievements of other Americans.

My second question is this: If it is reasonable and acceptable to experience pride when individual Americans or our country does something praiseworthy, is it also reasonable and acceptable to experience shame or guilt when individual Americans or our country engages in shameful or blameworthy conduct?

A follow-up question extends the issue beyond pride or blame: I ask whether students have received significant benefits as a result of their living in the United States? Did students directly bear the costs incurred by earlier generations in providing the political freedoms and material advantages the students enjoy today? Most students agree that they are the blessed beneficiaries of the work and courage of their forebears. The follow-up is whether it is fair and just to expect the students to pay the debts incurred by prior generations to provide the political and material goods the students experience and value today.

In its simplest terms, we would find it entirely reasonable to expect Americans today to pay the principal and interest on bonds the government sold to finance the construction of public bridges and dams.

But not all debts are so easily identified or quantified.

Still, we can ask and open the issue for discussion whether current generations may be reasonably expected to take into account the harms America has inflicted on minorities, such as Blacks and Native Americans, in deciding public policy issues today. This accountability is not based on the students’ race, but rather on their national identity. This is American accountability, applicable to our society because we are — and are privileged to be — Americans.

The classroom discussion will move on to evaluate American decisions relating to race and the treatment of racial minorities. Typically, these issues are less controversial. While there may be debate about particular events or policies, there is usually a strong consensus that, historically, American conduct toward racial minorities has been blameworthy. The hard question raised by my earlier inquiries is what that realization of blameworthiness means for public policy and constitutional law decisions today.

Of course, not everyone will agree with the analogies suggested above between pride and shame or benefits and debts. There is a difference, though, between raising a difficult issue for students to confront and demanding that everyone agree to a particular response.

Nor do I think that presenting these issues in the way I have described isolates or stigmatizes more conservative students — at least that has not been my experience.

Several years ago, I was privileged to be invited to visit and teach Constitutional Law for a semester at the law school at Brigham Young University (BYU). BYU law students are smart, thoughtful, religious, and generally conservative. They did not find the way I conducted the discussion of equal protection issues to be insulting or indoctrination. Indeed, one of the most rewarding teaching evaluations I have ever received was written by a student in that class. As a religious school, BYU asks students to evaluate whether a professor’s class was spiritually strengthening. Because I am Jewish and the overwhelming majority of BYU students are Mormons, I was not sure what to expect from students in response to this question on the evaluation.

One student’s response described my presentation on equal protection issues this way: “His sincerity in fairly articulating the constitutional interests of racial minorities, women and LGBT individuals was a supreme example of what we would deem Christ-like. Seeing his reverence toward these issues and the real-world consequences for those most affected by them was more powerful than any explicit discussion of religion in the lectures could have been.”

I doubt I deserve such high praise. But I am confident that the anonymous student who wrote this evaluation was neither insulted nor indoctrinated by my teaching.

August 5, 2021

What Trump Can Teach Us About Con Law Ep. 55: 'Double Dose of Jacobson'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

As people argue about public policy regarding COVID-19 vaccination, Jacobson V. Massachusetts is invoked a lot. Plus, Donald Trump is in court, and the first Capitol riot conviction. Listen to episode 55 of What Trump Can Teach Us About Con Law.

July 21, 2021

A Silver Lining for Rural America in the Supreme Court’s Decision in Brnovich?

Cross-posted to the Daily Yonder and Legal Ruralism.

Lisa R. Pruitt & Ezera Miller-Walfish, Class of 2022

Although the U.S. Supreme Court’s recent voting rights decision in Brnovich v. Democratic National Committee was very bad news for rural residents (and, indeed, all voters) in terms of the precedent set, there is perhaps a silver lining to be found in the dissenting opinion, written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor.  

That dissent took the concept of distance–rural spatiality–more seriously than any faction of the Supreme Court has ever done. Unlike the majority opinion, Kagan’s dissent examines the extra burden that living in a rural area can place on access, in this case to the ballot box.

In Brnovich v. Democratic National Committee, the Court split along ideological lines, voting 6-3 to uphold the State of Arizona’s restrictions on voting. The Arizona law limits the practice of ballot collection—a process whereby third-party individuals can return a voter’s signed and sealed mail-in ballot—and allows election officials to discard ballots cast at the wrong precinct.

We are a law professor and law student engaged in a thinking critically about the difference rurality makes to the operation of law, and we have followed this case for reasons other than those that have led election and constitutional law scholars to follow it: we’re interested in the case’s implications for rural populations and also how the Court understands lived realities in rural America.

Brnovich’s “Big Picture”

Before we get into the “rural weeds,” though, let us first refer to what Professor Rick Hasen of the UC Irvine School of Law said on his Election Law Blog about the big picture of Brnovich in relation to voting rights precedents.

[The decision] severely weakened Section 2 of the Voting Rights Act [a federal law dating to the Civil Rights Era] as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

The term “usual burden” is interesting here because in some prior cases, the focus has been on the opposite — on an “undue burden” on exercising the right. We will come back to that below when we draw the parallel between this voting rights case and another strand of constitutional litigation that uses an “undue burden” standard: abortion restrictions. On voting, Hasen continues:

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.
The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule.

In a guest post on the Election Law Blog, Professor Doug Spencer provided further big-picture context in relation to the Court’s approach to other enumerated rights.

It’s hard to reconcile the Court’s indifference to inconveniences on voting rights (e.g., fn 11, slip op. at 16) with its uncompromising protection of gun rights or its “most-favored-nation” approach to religious freedom. Why are voting rights so different? And so less worthy of protection?

(Congratulations to Prof. Spencer and UC Davis' own Prof. Chris Elmendorf, whose Columbia Law Review article on Section  2 of the Voting Rigths Act was cited by Justice Kagan in dissent).

A New Response to Rurality

OK, enough on the broad U.S. Constitutional and voting rights context. We want to turn now to why this case is exceptional from a ruralist standpoint.

The backstory here is that we have been arguing in legal scholarship–if not in amicus briefs or any other form that would actually get directly before the Justices–that rural spatiality, aka material distance, is an obstacle the Supreme Court should take seriously in considering “undue burdens” on the exercise of constitutional rights like voting and abortion.

The context in which the issue of distance has arisen most frequently is abortion access, which one of us has written about herehere, and here. The Supreme Court of the United States has rarely grappled in any meaningful way with the distance a woman must travel to reach an abortion provider, an issue that arises when waiting periods make two trips necessary or when state abortion regulations force providers to close, thus forcing women to travel longer distances to other providers. But in Whole Woman’s Health v. Hellerstedt, Justice Breyer, writing for the majority in the 2016 opinion, used the word “rural” only once, though he used the word “miles” 19 times.

Specifically, Breyer quoted the trial (federal district) court opinion, which acknowledged the added burden the clinic closures were causing “poor, rural, or disadvantaged women.” The disadvantaged group most focused on in that litigation were Latinas living in the Rio Grande Valley, who tended to be “poor, rural and disadvantaged.” Interestingly, the Court did not again use the word “poor” or “poverty” in the majority opinion, which is bit unusual–and disappointing–given that poor women disproportionately seek abortions compared to their more affluent counterparts. The Court did, however, use the term “Rio Grande Valley” twice, which suggests that population drew particular solicitude.

The Hellerstedt Court’s use of “miles” also mostly tracked the district court’s findings, here about the specific impact of the law on women’s abortion access. Because the challenged law had the effect of closing abortion providers across Texas, the geographical distribution of abortion providers shifted, with these consequences:

[T]he number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%.

Also looming was the fact that if another pending restriction went into effect, Texas would have abortion providers “only in five metropolitan areas.” Finally, Breyer used “miles” when quoting the federal district court for the proposition that Texas is big–specifically, that it covers nearly 280,000 square miles and that 25 million people–5.4 million of them women of reproductive age–live on that vast land area.

Ultimately, Breyer’s opinion concluded:

We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit [from the Texas law], lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

That was a real victory for rural women, however defined, though the focus was much more on the distance–really increased distance–that any woman might have to travel to reach an abortion provider. This did not explicitly focus on rural women, but the Hellerstedt majority went much further than any prior opinion in taking seriously material distance, expressed as miles traveled.

Rural America and Voting Rights

That brings us to Brnovich and voting rights. In discussing this case, it makes sense to discuss first the number of times the dissent mentions the word “rural” because it far outnumbers–and outweighs–what the majority had to say. Justice Kagan, writing for the dissent, used the word “rural” twelve times, frequently as part of the phrase “rural Native Americans.” The reason for this linkage is that the Voting Rights Act responds to discrimination on the basis of race. Thus, the sensitivity–if there is any–is to racial or ethnic difference, and that difference gets paired with rurality in what scholars call intersectionality. That is, status as a Native American intersects with rurality to aggravate the disadvantage experienced by this population, just as status as a poor woman intersected with status as a Latina and rural location to disadvantage women in Texas’ Rio Grande Valley in Hellerstedt.

Here’s perhaps the most salient quote from Kagan’s dissent:

Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities. The problem with that law again lies in facts nearly unique to Arizona—here, the presence of rural Native American communities that lack ready access to mail service. Given that circumstance, the Arizona statute discriminates in just the way Section 2 proscribes. The majority once more comes to a different conclusion only by ignoring the local conditions with which Arizona’s law interacts.
The critical facts for evaluating the ballot-collection rule have to do with mail service. Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom.

This language–humble for a Supreme Court Justice-–reminds me of Justice Thurgood Marshall’s rhetorical practice of putting himself in the shoes of litigants and acknowledging the challenge for Supreme Court justices to do just that. He wrote in United States v. Kras (1973), a case involving a court filing fee:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. . . .It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

One of us has made similar arguments re the Supreme Court’s struggle to grasp the burden of distance, especially with so many current justices having grown up in New York City. There is not, after all, much geographic diversity on the Court, and no current justice has any meaningful links to rurality.

Kagan’s dissent in Brnovich continues with a focus on the burden of rurality in relation to Native Americans, veering into the subject of those who rely on the U.S. mail in order to vote:

Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona “often must travel 45 minutes to 2 hours just to get to a mailbox.” (“Ready access to reliable and secure mail service is nonexistent” in some Native American communities). And between a quarter to a half of households in these Native communities do not have a car. See ibid. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans.

For that reason, an unusually high rate of Native Americans used to “return their early ballots with the assistance of third parties.” As the District Court found: “[F]or many Native Americans living in rural locations,” voting “is an activity that requires the active assistance of friends and neighbors.” So in some Native communities, third-party collection of ballots—mostly by fellow clan members—became “standard practice.” And stopping it, as one tribal election official testified, “would be a huge devastation.” [citations omitted]

It bears noting that Arizona, the sixth largest state in land area, is not alone in terms of challenges facing rural residents—and Native American voters in particular. Similar issues in Montana, the fourth largest state in the nation, are highlighted in this recent New York Times story, which focuses on the details of voting on Blackfeet reservation in the northwest part of the state.

Geography, poverty and politics all create obstacles for Native Americans. The Blackfeet reservation is roughly the size of Delaware but had only two election offices and four ballot drop-off locations last year, one of which was listed as open for just 14 hours over two days. Many other reservations in Montana have no polling places, meaning residents must go to the county seat to vote, and many don’t have cars or can’t afford to take time off.

The Majority’s Dismissiveness of Rural and Over-reliance on the U.S. Post Office

From a ruralist standpoint, the most shocking thing about the Brnovich litigation is the Supreme Court majority’s response to the dissent’s concern over these rural realities, especially as they impact Native Americans. Indeed, the majority was so dismissive of these concerns as to relegate its response to a footnote, footnote 21. Justice Alito, writing for the majority, notes the ways people will be still able to vote under the challenged Arizona law, e.g., the legality of having a ballot picked up and mailed by family or household members. Beyond that, he simply relies on provisions of the U.S. Code about the postal service, specifically the provisions about the circumstances under which small post offices may be closed. Here’s the full quote.

The burdens that fall on remote communities are mitigated by the long period of time prior to an election during which a vote may be cast either in person or by mail and by the legality of having a ballot picked up and mailed by family or household members. And in this suit, no individual voter testified that HB 2023 would make it significantly more difficult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the Postal Service is required by law to “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining.” 39 U. S. C. §101(b); see also §403(b)(3). Small post offices may not be closed “solely for operating at a deficit,” §101(b), and any decision to close or consolidate a post office may be appealed to the Postal Regulatory Commission, see §404(d)(5). An alleged failure by the Postal Service to comply with its statutory obligations in a particular location does not in itself provide a ground for overturning a voting rule that applies throughout an entire state. [emphasis added]

So, on the one hand, there’s this federal statute that says the USPS must provide a “maximum degree of effective and regular” delivery even to places–including rural ones–where the local post office doesn’t “break even.” On the other hand, if the USPS fails to comply with this statute, that lack of compliance won’t be grounds for overturning a state voting law.

Folks who’ve followed the recent degradation in U.S. Postal Service will immediately see some irony in the majority’s reliance on this institution. Those who’ve followed the decades long efforts to close and consolidate rural post offices will see yet another level of irony. Indeed, the latest proposal to downgrade postal service, detailed here, would ”disproportionately affect states west of the Rocky Mountains,” which includes a lot of Indian Country–and many other rural places, too. Specifically, 57% of first-class mail sent in Montana and 55% sent in Arizona will take longer to arrive.

This has us wondering if rural postal service advocates will try to rely on this footnote in Brnovich majority to resist some future effort to close more post offices. The argument would be, we guess, that if the Supreme Court says it won’t be done because of this statute, then it should not be done. But what the footnote–and the statute–give, they also take away in saying that post offices can, of course, be closed, although there’s a right to appeal such closures.

This is all pretty grim—for all patrons of the U.S. Postal Service, but especially for rural and Native American folks whose local post offices are most likely to be on the chopping block.

The majority opinion in Brnovich is devastating for voting rights generally speaking, and for Native American and rural communities in particular. But there is a sliver of hope to be found here: the dissent in this case shows that the U.S. Supreme Court is capable of taking rurality seriously–at least as a factor intersecting with Native American status. The Brnovich dissent grapples with the lived realities of distance, with the material spatiality of the rural, in an even more explicit and compelling way than the Hellerstedt majority did five years ago.

This leaves us with hope that the groundwork laid by the Brnovich dissent will be invoked in some future case, if and when the liberal wing of the Court is in the majority and called on to take seriously the rights of rural folks and therefore also the state-imposed barriers that undermine their ability to exercise those rights. The liberal bloc has finally shown they know how to do this. Let’s hope they don’t forget if they are some day back in a position to be the final arbiters of what is or is not an “undue burden.”

Ezera Miller-Walfish is a rising third-year law student at UC Davis School of Law.  She grew up in rural northern New Mexico.  
July 9, 2021

'Con Law' Episode 54: 'Bong Hits for Jesus'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

We discuss three cases from the recently wrapped Supreme Court term: California v. Texas, Mahanoy Area School District v. B.L., and Lange v. California. (This episode contains explicit language – quoted from a cheerleader).

Listen to episode 54 of What Trump Can Teach Us About Con Law.

June 2, 2021

Episode 53: 'Hate Crimes'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

On May 20, 2021, President Joe Biden signed the COVID-19 Hate Crimes Act into law. This bill made special mention of hate crimes against Asian Americans. This was in stark contrast to his predecessor, President Donald Trump, who used racist and xenophobic terms in relation to COVID-19. What exactly are hate crimes, and what does the Constitution say about them? Listen to episode 53 of the What Trump Can Teach Us About Con Law podcast.