How the modern Supreme Court might view the 14th Amendment and birthright citizenship

2025/01/24 Leave a comment

More good commentary:

…No current cases would support Trump’s position on birthright citizenship. Yet traces of his rhetoric about immigrants “invading” America surfaced last year in an opinion by US Appeals Court Judge James Ho that could, perhaps, eventually be used to advance the president’s stance.

In a concurring opinion in a dispute unrelated to birthright citizenship, Ho, a 2018 Trump appointee on the federal appellate court covering Texas, Louisiana and Mississippi, was receptive to arguments that illegal immigration at the Texas border could constitute an “invasion.” That language could evoke an exception to the established 14th Amendment interpretation, for children of invading armies.

Judge Ho has often reinforced emerging conservative theories. Before joining the bench, however, he wrote an essay directly addressing birthright citizenship and said the 14th Amendment and Wong Kim Ark case protected children of undocumented immigrants.

“All three branches of our government – Congress, the courts, and the Executive Branch – agree that the Citizenship Clause applies to the children of aliens and citizens alike,” he said in a 2006 essay in The Green Bag.

Ho concluded with a warning if a move were made to withdraw birthright citizenship: “Stay tuned: Dred Scott II could be coming soon to a federal court near you.”

Chief Justice Roberts received no questions about the Wong Kim Ark case during his 2005 Senate confirmation hearings. But Dred Scott was raised, and Roberts responded by calling it, “perhaps the most egregious examples of judicial activism in our history … in which the Court went far beyond what was necessary to decide the case.”

“And really, I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery, and resolving it in a particular way that it thought was best for the Nation,” he added. “And we saw what disastrous consequences flowed from that.”

Since then, Roberts has also alluded to Dred Scott in terms of his own legacy.

“You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” he said in 2010, contrasting the great 19th century chief justice with the chief justice who wrote Dred Scott.

“The answer is, of course, you are certainly not going to be John Marshall,” Roberts said. “But you want to avoid the danger of being Roger Taney.”

Source: How the modern Supreme Court might view the 14th Amendment and birthright citizenship

Filed under Birthright Citizenship, Citizenship Tagged with ,

Judge James Ho Kicks Off The Auditions For Trump’s Next Supreme Court Pick [birthright citizenship]

2024/11/19 Leave a comment

The malleability of legal reasoning and principles (or lack thereof) never ceases to amaze me:

The audition process for potential open Supreme Court seats is off and running, thanks to the possibility that conservative justices Samuel Alito and Clarence Thomas could decide to retire during Donald Trump’s second term.

First out of the gate is the hard-right Fifth Circuit Court of Appeals Judge James Ho. In an interview with the conservative lawyer Josh Blackman, Ho, who was appointed to his current job by Trump, redefined his position on one of the most controversial issues likely to arise in Trump’s second term — and one of the few points on which he and Trump had disagreed — in order to ingratiate himself with the incoming president.

That issue is the 14th Amendment’s grant of birthright citizenship to (almost) all children born on U.S. soil.

Trump has promised to end birthright citizenship for the children of undocumented immigrants, but as it now stands, that would be in plain violation of the Constitution and of the judiciary’s interpretation of the 14th amendment going back to 1898.

Previously, Ho endorsed the widely accepted view that birthright citizenship for everyone born on U.S. soil, except for the children of foreign diplomats. In a 2006 paper titled “Defining ‘American’: Birthright Citizenship And The Original Understanding Of The 14th Amendment,” Ho made an originalist defense of the judiciary’s long-standing interpretation of birthright citizenship while arguing that the only way it could be restricted would be through a constitutional amendment — a much higher bar than Trump, acting on his own, could clear.

With Trump’s imminent return to the White House, Ho has now endorsed a tortured revision of his previous position that rests on endorsing Trump’s view that immigrants constitute an invasion.

“Anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion,” Ho said in the interview with Blackman.

“Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can’t imagine what the legal argument for that would be.”

Source: Judge James Ho Kicks Off The Auditions For Trump’s Next Supreme Court Pick

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Dear colleagues: How to achieve student diversity, legally [affirmative action after SCOTUS]

2023/09/04 Leave a comment

Of note:

On 14 August the Biden administration provided colleges and universities with scenarios that would allow them to maintain the racial diversity of their student bodies following the Supreme Court of the United States’ (SCOTUS) decision last June that ended affirmative action.

Secretary of Education Miguel Cardona cast the maintenance of racial diversity in the nation’s colleges and universities as both an economic necessity and the fulfilment of America’s promise to itself. “For higher education to be the engine of economic opportunity, upward mobility and global competitiveness, we need campus communities that reflect the beautiful diversity of our country,” he said.

The Washington DC-based American Council on Education (ACE) welcomed the guidance provided by the Biden administration.

“This guidance from the Department of Education is a welcomed effort to delineate the limits of the ruling and help colleges better understand this new environment as they seek to meet their diversity and inclusion goals within the new limitations imposed by the court’s ruling,” said Audrey Hamilton, associate director of ACE’s public affairs.

Pushback against court findings

In the United States, SCOTUS is the final arbiter of constitutional questions. Its decisions are binding on both the federal and state governments.

While the Biden administration was well within rhetorical norms when it expressed regret about the decision, official government statements such as the “Dear Colleague letter” addressed to colleges and universities and signed by Kristen Clarke, assistant attorney general for civil rights at the Department of Justice (DoJ), and Catherine E Lhamon, assistant secretary for civil rights at the Department of Education (DoE), are not generally considered the place to re-litigate constitutional issues in public.

Still, the administration pushed back against the SCOTUS’ rejection of the notion that student diversity adds to the educational experience of college and university students, stated most clearly in Justice Clarence Thomas’ concurring opinion in the case of Students for Fair Admissions (SFFA) v President and Fellows of Harvard College (SFFA).

“I have sought to understand exactly how racial diversity yields educational benefits,” said Thomas. “With nearly 50 years [since the establishment of affirmative action programmes] to develop their arguments, neither Harvard nor UNC – two of the foremost research universities in the world – nor any of their amici [friend of the court briefs] can explain that critical link.”

The University of North Carolina at Chapel Hill (UNC), and Harvard University were sued by SFFA which claimed that the universities’ affirmative action programmes discriminated against Asian and white applicants.

The Dear Colleague letter underscored that both the DoJ and DoE believe: “Learning is enriched when student bodies reflect the rich diversity of our communities. Research has shown that such diversity leads to, among other things, livelier and more informative classroom discussions, breaking down prejudices and increased cross-racial understanding, and heightened cognitive development and problem-solving skills.”

The letter further states: “The benefits of diversity in educational institutions extend beyond the classroom as individuals who attend diverse schools are better prepared for our increasingly racial and ethnically diverse society and global economy.”

Holistic application-review processes

The DoJ’s guidance, that accompanied the letter from Clarke and Lhamon, is grounded in the SCOTUS’ decision in SFFA and, specifically, in the statement, just before the end of the majority decision written by Chief Justice John Roberts, that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise”.

As interpreted by the DoJ, Roberts allowed universities and colleges to continue to use holistic application-review processes that provided opportunities, through essay prompts, to assess how an applicants’ background and individual attributes – including race, experience of racial discrimination or the racial composition of his/her schools or neighbourhood – position the applicant to contribute to the college or university in a unique manner.

Among the concrete examples the guidance provides are:

• “A university could consider an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra”; and

• “[A]n institution could consider an applicant’s discussion of how learning to cook traditional Hmong dishes from her grandmother sparked a passion for food and nurtured her sense of self by connecting her to past generations of her family (the Hmong are an indigenous group from East and Southeast Asia)”.

When Dr Alí Bustamante, deputy director of the New York-based Roosevelt Institute’s Worker Power and Economic Security Program, was asked if the DoJ’s examples were pitched only to those students who excelled in high school, and thus made them good candidates for Harvard at the expense of those students who managed to do well in the many poorly equipped and underfunded high schools in America’s slums, he said: “Yes.”

“A more apt example of how race directly impacts lived experiences is a narrative about a Black student that graduates from an underfunded school, lived through years of systemic exclusion, and/or residing in an over-policed community. These examples better show how race commonly impacts lived experiences and overcoming these experiences should be valued,” he wrote in an email to University World News.

Further, the decision does not, the DoJ told universities and colleges, prevent them from considering that data if it comes from a third party.

“An institution could . . . consider a guidance counsellor or other recommender’s description of how an applicant conquered her feelings of isolation as a Latina student at an overwhelmingly white high school to join the debate team,” says the Dear Colleague letter.

Measures beyond race

The SCOTUS decision dealt with a narrow question: did affirmative action programmes violate the Equal Protection Clause of the 14th Amendment to the US Constitution ratified in 1868, one of the three post-Civil War amendments that banned slavery?

The clause reads in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny any person within its jurisdiction the equal protection of the laws.” SCOTUS decisions interpreted the phrase “No state” to include the federal government and, thus, included the laws under which affirmative action was implemented.

The decision does not prohibit colleges and universities from using means other than specifically identifying a student’s race to foster diversity. Both outreach and recruitment programs can, the DoJ says, “consider race and other factors that include, but are not limited to, geographic residency, financial means and socioeconomic status, family background, and parental education”. (Postal codes are strong predictors of race and these other sociological factors.)

Colleges and universities that seek diverse student bodies can direct their outreach/recruitment towards schools and school districts that serve predominantly students of colour and students of limited financial means.

They may also “target school districts or high schools that are underrepresented in the institution’s applicant pool by focusing on geographic location (for example, schools in the Midwest, or urban or rural communities) or other characteristics”.

Among these characteristics are low-performing schools or those with high dropout rates, those in which large percentages of students received free lunches or have historically low numbers of graduates being admitted to the college or university in question.

Neither these outreach/recruitment efforts nor establishing pathway programmes in which, for example, an institution partners with a high school to offer mentoring and summer enrichment boot camps run afoul of the SCOTUS decision.

Moreover, the DoJ says, neither would admissions policies such as the automatic admittance of community college (two-year college) graduates, as is the case in several states presently. For, each of these regimens is designed to increase the applicant pool and not to identify the race of any individual student by ticking off a box.

In his opinion, which argued for race blindness, Justice Thomas derided this bureaucratic shorthand: “What it [the admissions process] cannot do is use the applicant’s skin colour as a heuristic, assuming that because the applicant checks the box for ‘black’ he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.”

Such arguments ignore the fundamental role racism has played in American history and how it is baked into many of the nation’s institutions.

“Affirmative action practices have been contested since they were first implemented [in the middle 1960s] because some Americans, including policymakers, do not agree with the use of policy to address, and attempt to repair, the injuries that marginalised communities have endured as a result of past discriminatory policies,” said Bustamante.

“Some Americans believe in the myth that government policy should be race neutral despite the stark reality that American policymaking has a legacy of disproportionately benefiting whites and men and excluding people of colour, women, and those with atypical abilities and gender identities.”

A university takes proactive steps

A month before the Biden administration released its guidance to colleges and universities, Sarah Lawrence College stole a march on the DoJ and DoE. The liberal arts college just north of New York City changed the essay prompt that students applying for admissions in the 2024-25 school year must follow.

The prompt begins by referencing and then citing the SCOTUS decision in SFFA.

“In a 2023 majority decision of the Supreme Court of the United States, Chief Justice John Roberts wrote: ‘Nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the applicant can contribute to the university’.”

Prospective students are then asked to write an essay: “Drawing upon examples from your life, a quality of your character, and/or a unique ability you possess, describe how you believe your goals for a college education might be impacted, influenced or affected by the Court’s decision.”

According to Bustamante, Sarah Lawrence’s essay prompt aligns with the Biden administration’s view and not with the SCOTUS.

“The court majority has repeatedly affirmed that racial discrimination and marginalisation is not a given – a generalised experience of all people of colour. The Sarah Lawrence and Biden administration perspective is that the court’s ruling means that racial discrimination and marginalisation must be explicitly factored into admissions, and no longer be assumed based on the identification of race alone.”

Source: Dear colleagues: How to achieve student diversity, legally

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Supreme Court Decisions on Education Could Offer Democrats an Opening

2023/07/03 Leave a comment

Interesting take. Welcome return to “class” as a differentiator, although there is intersectionality with race and identity:

Ever since President Bill Clinton advised “mend it, don’t end it,”affirmative action has had an uneasy place in the Democratic coalition, as omnipresent as the party’s allegiance to abortion rights and its promises to expand financial aid for higher education — but unpopular with much of the public.

Now, in striking down race-conscious college admissions, the Supreme Court has handed the Democrats a way to shift from a race-based discussion of preference to one tied more to class. The court’s decision could fuel broader outreach to the working-class voters who have drifted away from the party because of what they see as its elitism.

The question is, will the party pivot?

“This is a tremendous opportunity for Democrats to course-correct from identity-based issues,” said Ruy Teixeira, whose upcoming book “Where Have All the Democrats Gone?” looks at the bleeding of working-class voters over the last decade. “As I like to say, class is back in session.”

Conservative voters have long been more animated by the Supreme Court’s composition than liberals have. But the last two sessions of a high court remade by Donald J. Trump may have flipped that dynamic. Since the court overturned Roe v. Wade in 2022, energized Democratic voters have handed Republicans loss after loss in critical elections.

Republicans’ remarkable successes before the new court may have actually deprived them of combative issues to galvanize voters going into 2024. Several Republican presidential hopefuls had centered their campaigns on opposition to affirmative action. And the court’s granting of religious exemptions to people who oppose gay marriage, along with last year’s Dobbs decision, may take the sting out of some social issues for conservatives.

In that sense, the staunchly conservative new Supreme Court is doing the ugly political work for Democrats. Its decision last year to eliminate the constitutional right to abortion elevated an issue that for decades motivated religious conservatives more than it did secular liberals.

Friday’s decision to strike down President Biden’s student debt relief plan enraged progressive Democrats, who had pressed the president to take executive action on loan forgiveness. A coalition of Generation Z advocacy groups, including Gen-Z for Change and the climate-oriented Sunrise Movement, said on Friday that the court “has openly declared war on young people.”

But while the Supreme Court made retroactive higher education assistance far more difficult, it may have boosted the Democratic cause of financial aid, through expanded Pell grants and scholarships that do not saddle graduates with crushing debt burdens. Democrats have long pushed expanded grant programs and legislative loan-forgiveness programs for graduates who embark on low-paid public service careers. Those efforts will get a lift in the wake of the court’s decision.

The high court’s declaration that race-based admission to colleges and universities is unconstitutional infuriated key elements of the Democratic coalition — Black and Hispanic groups in particular, but also some Asian American and Pacific Islander groups who said conservatives had used a small number of Asian Americans as pawns to challenge affirmative action on behalf of whites.

“They were using the Asian community as a wedge,” said Representative Judy Chu, Democrat of California, after the decision was handed down on Thursday. “I stand with the unified community.”

But while they have expressed anger and disappointment over the conservative decisions, Democrats also acknowledge their inability to do much to restore affirmative action, student loan forgiveness and the right to an abortion in the foreseeable future, as long as the 6-3 majority on the Supreme Court holds.

“There’s a constitutional challenge in bringing it back,” said Representative Bobby Scott of Virginia, a longtime Democratic leader on the House education committee.

Simon Rosenberg, a Democratic strategist pressing his party to expand its outreach to the working class, said adding a new emphasis on class consciousness to augment racial and ethnic awareness would fit well with Mr. Biden’s pitch that his legislative achievements have largely accrued to the benefit of workers.

Infrastructure spending, electric vehicles investment, broadband expansion and semiconductor manufacturing have promoted jobs — especially union jobs — all over the country but especially in rural and suburban areas, often in Republican states.

“By next year, Democrats will be able to say we’ve invested in red states, blue states, urban areas, rural areas,” he said. “We’re not like the Republicans. We’re for everybody.”

But bigotry, discrimination and the erosion of civil rights will remain central issues for Democrats, given the anger of the party base, Mr. Rosenberg said. The Supreme Court’s siding on Fridaywith a web designer in Colorado who said she had a First Amendment right to refuse to provide services for same-sex marriages cannot be separated from the affirmative action, student loan and abortion decisions.

Mr. Teixeira said Democrats were not likely to see their new opportunities at first.

“If you want to solve some of the underlying problems of the party, this should be a gimme,” he said of pivoting from racial and ethnic identity to class. But, he added, “in the short term, the enormous pressure will be not to do that.”

Indeed, the initial Democratic response to the Supreme Court’s actions was not to elevate economic hardship as a key preference in college admissions. Instead, Democrats seemed focused on striking down other areas of privilege, especially the legacy admission preference given to the children and grandchildren of alumni of elite institutions.

“What we’re fighting for is equal opportunity,” said Representative Joaquin Castro, Democrat of Texas. “If they get rid of affirmative action and leave rampant legacy admissions, they’re making merit a slogan, not a reality.”

Republicans saw a political line of attack in the Democratic response to the court’s decision. Even before 1990, when a campaign ad by Senator Jesse Helms of North Carolina featured white hands crumpling a job rejection to denounce “racial quotas,” Republicans had used affirmative action to their political advantage.

Mr. Clinton’s “mend it, don’t end it” formulation came after a 1995 speech before California Democrats in which he said of affirmative action programs: “We do have to ask ourselves, ‘Are they all working? Are they all fair? Has there been any kind of reverse discrimination?’”

A June survey by the Pew Research Center found that more Americans disapprove than approve of colleges and universities’ using race and ethnicity in admissions decisions, and that Republican and Republican-leaning independent voters are largely unified in their opposition, while Democratic voters are split.

After Mr. Biden expressed his opposition to the Supreme Court’s decision, the campaign arm of the Senate Republicans issued a statement calling out three vulnerable Senate Democrats up for re-election in Republican states: Joe Manchin III of West Virginia, Jon Tester of Montana and Sherrod Brown of Ohio.

“Democrats are doubling down on their racist agenda and want to pack the Supreme Court to get their way,” said Philip Letsou, a spokesman for the National Republican Senatorial Committee. “Will Democrats like Joe Manchin, Jon Tester and Sherrod Brown denounce Joe Biden’s support of racial discrimination and state unequivocally that they oppose packing the court?”

The House Republican campaign arm called Democratic outrage “the great limousine liberal meltdown.”

But the Supreme Court has offered Democrats a way forward with many of its decisions — based on class. The affluent will always have access to abortions, by traveling to states where it remains legal, and to elite institutions of higher education, where they may have legacy pull and the means to pay tuition.

Those facing economic struggles are not so privileged. Applicants of color may have lost an edge in admissions, but poor and middle-class students and graduates of all races were dealt a blow when the court declared that the president did not have the authority to unilaterally forgive their student loans.

Representative Marilyn Strickland, Democrat of Washington, said her party now needs to recalibrate away from elite institutions like Harvard and the University of North Carolina, the defendants in the high court’s case against affirmative action, and “respect all types of education and all types of opportunity,” mentioning union training programs, apprenticeships, trade schools and community colleges.

Mr. Scott agreed. “This is going to cause some heartburn,” he said, “but what we need to campaign on is that we’re opening opportunities for everybody.”

Source: Supreme Court Decisions on Education Could Offer Democrats an Opening

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In major SCOTUS immigration case, both sides look to academia to untangle three knotty questions

2022/11/30 Leave a comment

Good explainer:

Can the Biden administration issue guidelines setting priorities in the enforcement of immigration law? Do states have standing to challenge these guidelines? And if the guidelines are unlawful, does the Administrative Procedure Act give lower courts the power to vacate them — a universal remedy that goes beyond the parties to the case? These are the three questions before the Supreme Court in United States v. Texas, set to be argued on Nov. 29. Legal scholars have addressed all three issues, and their work is prominently cited in the briefing on both sides.

In her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases(NYU Press, 2015), Professor Shoba Sivaprasad Wadhia of Penn State Law observes that discretion in immigration enforcement is unavoidable in a system that lacks the resources to remove more than a few percent of the nation’s 11 million undocumented immigrants. The debate over how that discretion should be exercised has created a sharp policy divide between the Obama and Biden administrations, on the one hand, and that of former President Donald Trump on the other.

In 2011, John Morton, then the director of Immigration and Customs Enforcement, issued a seriesof memos setting enforcement priorities. Morton explained that his agency “only has resources to remove approximately 400,000 aliens per year, less than 4 percent of the estimated illegal alien population in the United States.” Accordingly, he declared that ICE would prioritize apprehension and removal of certain categories of undocumented immigrants, such as those who had committed crimes or were recent arrivals. In contrast, undocumented immigrants without criminal records, who had lived in the United States for many years, and who had U.S. citizen family members were low priorities for removal.

The “Morton Memos” were often ignored by ICE officers, and in any case did not give legal protection from removal to those undocumented immigrants categorized as lower priorities. But if nothing else, they set the tone.

That tone changed abruptly when Trump took office in 2017. Within the first week of his administration, Trump replaced the Morton Memos with an executive order directing immigration officials “to ensure the faithful execution of the immigration laws of the United States against all removable aliens.” The goal, Trump explained, was to end “exempt[ions] [for] classes or categories of removable aliens from potential enforcement.” To be sure, the Trump administration also lacked the resources to deport the vast majority of undocumented immigrants. But the new executive order sent the message that no one in the United States without status was safe from removal.

The Trump administration followed an “attrition through enforcement” approach proposed in 2008 by Kris Kobach, who was at that time a professor at the University of Missouri-Kansas City School of Law and later became Kansas’ secretary of state. (Earlier this month, he was elected as Kansas’ incoming attorney general.) Acknowledging the limited resources to remove undocumented immigrants, Kobach advocated for policies that encouraged self-deportation.  Accordingly, he opposed any categorical use of prosecutorial discretion, advocating instead for enforcement policies that would leave all undocumented immigrants in fear that they were imminently removable.

Now, in United States v. Texas, Texas and Louisiana have asked the court to weigh in on this debate. At issue is whether the Immigration and Nationality Act permits the Biden administration to adopt guidelines prioritizing removal of certain categories of undocumented immigrants over others, just as Obama did before him. These states also argue that the guidelines violate the Administrative Procedure Act.

The case is perhaps even more important for its challenge to states’ standing to sue the federal government. A glance at the court’s docket in recent years reveals the rapid rise in state challenges to executive branch changes in policy, with red states taking the lead under Presidents Obama and Biden and blue states doing so during the Trump administration. In April of 2022, Texas issued a press release celebrating its 27th lawsuit against the Biden administration (the number is certainly higher by now). Likewise, California filed 122 lawsuits against the Trump administration during Trump’s four years as president, averaging one new lawsuit every 12 days.

Many of these cases challenged executive branch changes to immigration policy. In United States v. Texas, Texas and Louisiana argue that the new enforcement priorities will increase the number of undocumented immigrants in their states, and so increase their incarceration, education, and health care costs. They claim these higher costs are a cognizable injury that gives them standing to sue.

In its brief, the United States cites University of Virginia Law Professors Ann Woolhandler and Michael Collins’ recent article, Reining in State Standing, which argues in favor of a “return to [states’] traditional disfavored status as plaintiffs.” Under the tripartite requirements for standing, a plaintiff must show an “injury in fact” that is traceable to the challenged action and redressable by a court. But that standard gives states enormous leeway to claim injury on behalf of themselves as sovereigns or to their parens patriae interests (that is, the interests of their citizens), because almost any change to federal policy will have a fiscal impact on a state and its residents. Woolhandler and Collins propose that state standing to sue should be limited to cases in which states are “the direct regulatory objects of federal statutes and regulations,” which would fit more comfortably with states’ traditionally limited role as litigants before federal courts.

Finally, the Supreme Court is asked to decide the scope of the permissible remedy if the guidelines violate federal law. Over the past few years, courts and commentators have debated the power of lower federal courts to enter universal injunctions — that is, injunctions that bar defendants from enforcing a challenged law against anyone, not just the plaintiffs. United States v. Texas raises an offshoot of this question: whether a court’s power “to hold unlawful and set aside agency action” under Section 706(2) of the APA permits courts to vacate agency action such that it cannot be applied to anyone.

The United States cites a recent article by Professor John Harrison of University of Virginia Law arguing that Section 706(2) does not give courts authority to issue universal remedies, but rather only allows courts to decline to enforce unlawful agency action in cases before them. Texas and Louisiana rely on University of San Diego Law Professor Mila Sohoni’s article, “The Power to Vacate a Rule,” asserting that Section 706(2) authorizes (but does not require) vacatur, and citing longstanding precedent in the U.S. Court of Appeals for the District of Columbia Circuit and other lower federal courts supporting that position.

As Sohoni puts it, perhaps the most “astonishing” aspect of the case is that the scope of Section 706(2)’s remedy remains uncertain nearly 80 years after that statute’s enactment. That uncertainty will likely be resolved by the court’s decision this term.

Source: In major immigration case, both sides look to academia to untangle three knotty questions

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ICYMI: US Supreme Court declines to consider challenge to racist citizenship laws [America Samoa]

2022/10/24 Leave a comment

Of note:

The Supreme Court on Monday refused to reconsider the so-called “Insular Cases,” a series of cases decided in the early 1900s that are infamous today for their racist foundation.

The court’s action dashes hopes of American Samoans who were seeking birthright citizenship. It also leaves intact a Tenth Circuit decision that has been seen as “breathing new life” into constitutional distinctions between U.S. states and territories — which former Acting Solicitor General Neal Katyal said establish “a second-class of unequal Americans.”

Attorney Neil Weare, president of the organization representing the plaintiffs in this case, echoed the sentiment: “The Supreme Court’s refusal to reconsider the Insular Cases today … reflect[s] that ‘Equal Justice Under Law’ does not mean the same thing for the 3.6 million residents of U.S. territories as it does for everyone else.”

Who is a citizen?

At issue in this case was the way that people born in various U.S. territories are treated under law when it comes to U.S. citizenship. The Constitution says that anyone “born or naturalized in the United States” is a citizen of the country. But for U.S. territories, eligibility for birthright citizenship in the territories is controlled only by Congress – it is not constitutionally guaranteed.

Residents of Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Marianas Islands are deemed U.S. citizens under the Immigration and Nationality Act. But American Samoans are not. Congress has not granted birthright citizenship to residents of American Samoa or Swains Island, both of which are classified only as “outlying possessions.”

It is this disparate treatment that was before the court, after three American Samoans living in Utah brought a challenge to the Immigration and Nationality Act, contending that the statutory denial of citizenship is unconstitutional under the Fourteenth Amendment’s Citizenship Clause.

The Citizenship Clause was adopted after the Civil War primarily to protect the birthright citizenship of Black Americans, which was rejected by the Supreme Court prior to the Civil War. However, the meaning of the clause for residents of the territories has historically been contested — as has the force of constitutional protections in the territories altogether. In this case, Fitisemanu v. U.S., the American Samoans contend that the residents of all the territories should be considered “in the United States” for the purpose of citizenship.

While American Samoans who live in the States may apply for citizenship, before they successfully do so they are denied many of the rights attached to citizenship, such as the right to vote, run for office, or serve on juries. The plaintiffs in this case say their career opportunities have been curtailed and that, as non-citizens, they are unable to sponsor immigration visas for their families. Applying for citizenship itself is onerous, can take several years, and is not guaranteed.

A brief history of the Insular Cases

But this case was not just about the reach of the Citizenship Clause. The Constitution’s underlying disparity in treatment between the 50 states and the U.S. territories was enshrined in the Insular Cases, a series of cases decided in the early 1900s after the Spanish-American War. These cases — so called because of their “insular” (island-related) focus — held that full constitutional rights apply only to “incorporated” territories destined for statehood, such as Hawaii, but not to “unincorporated” territories, which then included Puerto Rico, Guam, and the Philippines. Infamously, the distinction between incorporated and unincorporated territories rested on explicitly racist stereotypes about individuals from those territories. Opposing Filipino statehood, for example, one senator called Filipinos “unruly and disobedient.” Another called them “mongrels.”

Under the Insular Cases, which were primarily about tariffs and jury trials in the territories, the Supreme Court upheld this suspect “incorporated vs. unincorporated” framework of rights. The Court’s language and reasoning was hardly any better than that of Congress. One case emphasized that “differences of race, habits, laws and customs” in the territories might require action on the part of Congress that wouldn’t be required if the territory were “inhabited only by people of the same race.” Another referred to “savage tribes” which may be “[in]capable of self-government.”

It is this insidious foundation of the Insular Cases that has drawn the condemnation of both liberal and conservative justices. In Vaello-Madero, a case from last term about Puerto Ricans’ eligibility for disability benefits, Justice Neil Gorsuch wrote a 10-page concurrence calling for the Insular Casesto be overruled — something that is now unlikely to happen any time soon.

Gorsuch did not note any dissent from Monday’s action.

Monday’s action is a victory for both the Biden administration and the American Samoan government itself, though neither party defends the offensive language in the Insular Cases. Nor does the United States affirmatively oppose American Samoan citizenship. The United States rests its argument instead on the text of the Citizenship Clause, which it contends intentionally excludes the territories from birthright citizenship conferred by the Constitution. The U.S. argues that American Samoans have the legislative route to birthright citizenship available to them, and that if there is a consensus in favor of birthright citizenship, they should pursue that through their representative in Congress. Otherwise, however, the United States says it does not want to tread on the self-governance of American Samoans.

To that end, the American Samoan government intervened in the case to argue that U.S. birthright citizenship for American Samoans would undermine the island’s ability to self-govern and maintain cultural autonomy.

Source: Supreme Court declines to consider challenge to racist citizenship laws

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The Supreme Court Gets a Chance to Revisit America’s Imperialist Past

2022/09/22 Leave a comment

Good long explainer and commentary:

Who gets to be a U.S. citizen at birth? This question is fairly simple when asked almost anywhere in the United States. If you are born on U.S. soil and you are not the son or daughter of a foreign diplomat stationed here at the time, you are a citizen of this country. The Supreme Court is now considering a case that would require it to decide whether that rule should apply in the only part of the U.S. where it currently does not: the islands of American Samoa.

The case, Fitisemanu v. United States, involves three plaintiffs who originally hail from American Samoa but now reside in Utah. (The petition for review was filed in April; the Department of Justice filed its reply briefs at the end of August.) They are legally considered U.S. nationals, a subcitizenship status of sorts where they still owe allegiance to the U.S. but, unlike Americans on the mainland and in all other territories, did not receive citizenship at birth. This distinction has limited their lives in myriad ways. The case’s namesake, John Fitisemanu, is suing because he cannot lawfully cast a ballot, according to the petition for review. Co-complainant Pale Tuli cannot pursue his preferred vocation as a police officer because Utah law restricts the job to U.S. citizens. And the third plaintiff, Rosavita Tuli, cannot sponsor her parents through the immigration process in the manner to which citizens of the U.S. are entitled.

American Samoa is unique in this regard. Congress has granted birthright citizenship to everyone born in the other U.S. territories—ranging from Puerto Rico and Guam to the U.S. Virgin Islands and Northern Mariana Islands—through federal legislation. While there have been legislative attempts to close this gap, these have met some resistance from local authorities. Both the American Samoan government and the territory’s only congressional delegate moved to intervene in the lawsuit. They argued that imposing birthright citizenship would infringe upon the island’s cultural traditions and right to self-determination.

A federal district court judge ruled in favor of the plaintiffs, however, drawing upon the 1898 case Wong Kim Ark v. United States. That landmark decision helped establish that anyone born on U.S. soil, with the exceedingly rare exception of children of foreign diplomats, automatically acquired U.S. citizenship at birth. The Tenth Circuit Court of Appeals overturned the district court’s ruling in a split decision, concluding that the lower court had applied the wrong set of precedents to the case.

“Between these competing frameworks, the Insular Cases provide the more relevant, workable, and, as applied here, just standard,” Judge Carlos Lucero wrote. “This is so for several reasons: 1) the Insular Cases were written with the type of issue presented by this case in mind, whereas Wong Kim Ark was not; 2) the district court overread the weight accorded English common law by Wong Kim Ark; and 3) the Insular Cases permit this court to respect the wishes of the American Samoan people, whereas Wong Kim Ark would support the imposition of citizenship on unwilling recipients.” Judge Timothy Tymkovich concurred in part, deferring to historical precedent and congressional discretion but declining to apply the Insular Cases outright.

His reticence is understandable. The Insular Cases are among the most controversial precedents that still carry legal weight in American courts. At the close of the nineteenth century, the U.S. acquired a constellation of colonial possessions in the Atlantic and Pacific Oceans by winning the Spanish-American War. Those acquisitions immediately raised questions about when and how the Constitution’s protections applied to the new territories. Did the Constitution follow the flag, so to speak, or could the new possessions be administered under a different type of constitutional order?

In a series of decisions in the early twentieth century, the Supreme Court took the latter approach. Starting with the 1901 case Downes v. Bidwell, the justices distinguished between incorporated territories and unincorporated territories. In incorporated territories, like those on the American frontier that eventually became states, the Constitution carries its full weight. In unincorporated territories, the high court ruled, inhabitants had certain fundamental rights but also did not enjoy the automatic protections of the Bill of Rights or other constitutional measures.

The rulings are widely derided as imperialistic and discriminatory. In some of them, the justices wrote in unabashedly racist terms to muse about whether the nonwhite inhabitants of the new territories were properly suited for “Anglo-Saxon” institutions like jury trials. So condemned are the Insular Cases that the Justice Department under presidents from both parties often disclaims any reliance on them when arguing cases about the territories before the Supreme Court. They nonetheless remain on the books as the prevailing framework for governing the territories where roughly five million people live.

Earlier this year, in the case United States v. Vaello-Madero, the Supreme Court considered whether Congress could lawfully exclude U.S. citizens who live in Puerto Rico from drawing upon a Social Security benefit program that would be available to them if they lived in an Arctic cabin in Alaska, a Central Park penthouse in New York, anywhere else in the 50 states, or the District of Columbia. In an 8–1 ruling by Justice Brett Kavanaugh, the court upheld Congress’s decision to omit Puerto Rico from the program.

Gorsuch sided with the federal government as a matter of precedent. He then wrote a concurring opinion where he forcefully called for the court to “revisit” the Insular Cases whenever it had the opportunity. “The flaws in the Insular Cases are as fundamental as they are shameful,” he wrote. “Nothing in the Constitution speaks of ‘incorporated’ and ‘unincorporated’ Territories. Nothing in it extends to the latter only certain supposedly ‘fundamental’ constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating territories and the people who live in them on the basis of race, ethnicity, or religion.” Justice Sonia Sotomayor, whose parents were Puerto Rican, echoed his call to revisit them in her dissent from that case.

In their petition for review in Fitisemanu, the plaintiffs cited Gorsuch’s dissent and called upon the justices to follow his lead. They also stressed the high stakes of the case before them. “The importance of the question presented is indisputable,” they told the court. “At stake is not just the meaning of a core constitutional provision that defines the boundaries of a foundational right—U.S. citizenship—on which many other rights are premised, but also whether that constitutional provision even has a fixed meaning that cannot be turned on and off based on evolving or subjective factors.”

One of the most unusual friend of the court briefs came from two women who were the descendants of plaintiffs in past Supreme Court cases involving citizenship. One was the great-granddaughter of Isabel Gonzalez, the namesake of a 1904 case where the court elided whether Puerto Ricans were U.S. citizens at the time. The other woman was the great-great-granddaughter of Dred Scott, who asked the Supreme Court to recognize his freedom in 1859. The justices’ decision not only to rule against Scott but also to declare that no one of African descent could ever become a U.S. citizen and that the Missouri Compromise was unconstitutional, eventually led to the Civil War.

After the war ended, Congress and the states ratified a constitutional amendment to establish citizenship in the clearest possible terms. “The Fourteenth Amendment is unequivocal,” the two women told the court. “Citizenship in no way depends on race, status, or the particular geographic region of the United States in which a person was born or lives. Instead, under the Citizenship Clause, ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States,’ as well as any ‘State wherein they reside.’” Their brief is a potent reminder of the extraordinary stakes that surround questions of citizenship, as well as the long shadow of history that can fall upon those who were denied it.

The Justice Department, for its part, urged the justices not to take up the case and claimed it wasn’t grounding its position in the Insular Cases. “The government’s argument here does not rest on that framework,” it argued in its reply brief. “The government does not rely on the premise that citizenship is not ‘fundamental,’ or on the view that extending birthright citizenship to American Samoa would be ‘impracticable and anomalous.’ And the government in no way relies on the indefensible and discredited aspects of the Insular Cases’ reasoning and rhetoric that [the plaintiffs] highlight here.” Instead, they argued that the Citizenship Clause does not automatically apply to any territories and narrowly construed Wong Kim Ark by noting that the case’s namesake was born in the state of California.

There is no way to know in advance whether the justices will take up a specific case. If they decline to do so here, they may be influenced by the arguments raised by the government of American Samoa itself, which opposed the plaintiffs’ effort to get the courts to extend birthright citizenship to the territories. “Their contrary view would threaten fa’a Samoa, upend well over a hundred years of settled law and practice, and deprive the American Samoan people of their basic right to determine their own status through the democratic process,” the government told the court in a reply brief, referring to their term for the traditional Samoan way of life.

“Finally, it bears noting that even if this Court were inclined to reconsider and overrule the Insular Cases, it would be remarkably ironic to take that step in a case where those decisions have been cited not to perpetuate racist or imperialist doctrines, but instead ‘to preserve the dignity and autonomy of the peoples of America’s overseas territories,’” they concluded, quoting from Sotomayor’s dissent in Vaello-Madero. The plaintiffs, as one might expect, strongly disputed that assertion. “Extending citizenship has not impaired cultural preservation or self-determination in any other U.S. territory, and there is no reason to suppose the result would be different in American Samoa,” they argued in a reply brief.

Even if the justices decline to take up the question in this specific case, it seems likely that they will inevitably be compelled to decide whether the Insular Cases should continue to apply in a postcolonial world. At issue, after all, is not just whether a justice or group of justices got it wrong more than a century ago when cases involving the new territories came before them. It is also about whether millions of Americans should still exist in that liminal constitutional space today, and whether it should continue to shape their lives and destinies going forward.

Source: The Supreme Court Gets a Chance to Revisit America’s Imperialist Past

Filed under Birthright Citizenship, Citizenship Tagged with , ,

‘Dire Consequences’: SCOTUS Justice Gorsuch Sides with Liberals Against Justice Barrett’s Majority Opinion in Immigration Case

2022/05/18 Leave a comment

Bizarre ruling but given the make-up of the court, not surprising:

The U.S. Supreme Court on Monday ruled against immigrants seeking judicial review of mistakes and errors made by immigration agencies. In a 5-4 majority opinion, Justice Amy Coney Barrett wrote that federal courts are categorically barred from considering such issues.

“It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes,” Justice Neil Gorsuch wrote in a passionate dissent. “Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case.”

Joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, Gorsuch castigated the sweeping nature of the majority’s decision and its fealty to the administrative state.

“Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it,” the dissent notes. “No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants.”

In the case stylized as Patel v. Garland, Pankajkumar Patel, who has lived in the country for nearly 30 years, accidentally ticked the wrong box on a driver’s license application question about his citizenship status in Georgia. Peach State prosecutors initially pressed charges but later determined that they lacked evidence to prove a crime had been committed. Notably, his incorrect check mark didn’t have any bearing on his request for a driver’s license because under Georgia law, he was entitled to one even though he wasn’t a U.S. citizen because he had filed for a green card and had a valid work permit.

The Department of Homeland Security rejected Patel’s green card application on the basis of a statute barring immigration status adjustments to anyone who “falsely represents . . . himself . . . to be a citizen of the United States” to obtain a “benefit under . . . State law.”

After that, the government initiated deportation proceedings against Patel, who has three children who also live in the country. He then re-filed his green card application under the relevant statutes and repeated his consistent claims about his lack of intent to deceive and how Georgia law regarding that benefit–the driver’s license–wasn’t actually contingent on how he filled out the form in the first place.

“None of this moved the immigration judge,” Gorsuch writes. “He said he did not believe Mr. Patel’s testimony that he checked the wrong box mistakenly. Instead, the immigration judge found, Mr. Patel intentionally represented himself falsely to obtain a benefit under state law. According to the immigration judge, Mr. Patel had a strong incentive to deceive state officials because he could not have obtained a Georgia driver’s license if he had disclosed he was ‘neither a citizen [n]or a lawful permanent resident.’”

But the immigration judge was incorrect. Patel followed up and said exactly as much before the Board of Immigration Appeals.

“In his appeal, Mr. Patel argued that the immigration judge’s finding that he had an incentive to deceive state officials was simply wrong—under Georgia law he was entitled to a driver’s license without being a citizen or a lawful permanent resident given his pending application for adjustment of status and permission to work,” the dissent notes. “Mr. Patel submitted, too, that all the record evidence pointed to the conclusion he simply checked the wrong box by mistake; even state officials agreed they had no case to bring against him for deception.”

The agency tribunal ruled against him. In additional appeals, with the 11th Circuit Court of Appeals, various federal judges opined at length about whether or not they even had the ability to review Patel’s case. In their first ruling against him, a three-judge panel determined they lacked jurisdiction to even hear the case.

Patel appealed again. The full court then decided, in a 9-5 opinion, that one small bit of statutory language precludes courts from reviewing cases like Patel’s–while also noting that they had to overrule “numerous” precedents in various circuits in order to reach the conclusion that they can’t really consider such cases at all.

The statute reads, in relevant part:

Notwithstanding any other provision of law . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— (i) any judgment regarding the granting of relief under section . . . 1255 of this title.

Under federal law, there’s a two-step process for whether or not an immigrant is entitled to relief from a deportation decision. The first step is whether or not an immigrant is entitled to having their status adjusted. The next step is whether or not, in the government’s discretion, they might then not be deported.

In Patel’s case, the judge, the BIA, and the 11th Circuit ruled against him at step one. The 11th Circuit’s logic was that the above-referenced statute foreclosed against a court hearing anything about how the agency had erred at the first step. The second step was never even considered by the court. Barrett’s majority opinion endorses that view.

Gorsuch explains (and criticizes) at length:

Following the Eleventh Circuit’s lead, the majority contends that subparagraph (B)(i)’s phrase “any judgment regarding the granting of relief under § 1255” sweeps more broadly. On its account, the statute denies courts the power to correct all agency decisions with respect to an adjustment-of-status application under § 1255—both the agency’s step-one eligibility decisions and its step-two discretionary decisions. As a result, no court may correct even the agency’s most egregious factual mistakes about an individual’s statutory eligibility for relief. It is a novel reading of a 25-year-old statute. One at odds with background law permitting judicial review.

“It does not matter if the BIA and immigration judge in Mr. Patel’s case erred badly when they found he harbored an intent to deceive state officials,” the dissent goes on. “It does not matter if the BIA declares other individuals ineligible for relief based on even more obvious factual errors. On the majority’s telling, courts are powerless to correct bureaucratic mistakes like these no matter how grave they may be.”

The dissent even repeats some of its own language verbatim but with added italics to stress the points:

[U]nder the majority’s construction of subparagraph (B)(i), individuals who could once secure judicial review to correct administrative errors at step one in district court are now, after its decision, likely left with no avenue for judicial relief of any kind. An agency may err about the facts, the law, or even the Constitution and nothing can be done about it.

Gorsuch goes on to note that tens of thousands of such rejections are handed out by agency officials each year and argues that Barrett’s opinion “will almost surely end all that and foreclose judicial review for countless law-abiding individuals whose lives may be upended by bureaucratic misfeasance.”

Source: ‘Dire Consequences’: Justice Gorsuch Sides with Liberals Against Justice Barrett’s Majority Opinion in Immigration Case

Filed under Immigration Tagged with , ,

Cohen: U.S. Supreme Court abortion ruling throws away a half-century of law

2022/05/06 Leave a comment

Good column:

Well, why should we be surprised? Who on God’s green earth did not expect — given the ideology and origins of the majority of justices on the United States Supreme Court — that it would, at its first opportunity, vote to end a woman’s right to abortion? Do you think this just fell from the sky?

It didn’t. The decision — a draft of which was leaked Monday, confirmed Tuesday and will be issued in June, perhaps in different words with the same effect — has been a generation in the making. It is a triumph of the conservative movement that never supported Roe v. Wade, the judgement that established a woman’s right to abortion in 1973, and has denied it ever since.

One by one, judge by judge, social conservatives put in place the majority that will, this time, reverse the decision. First came Justice Clarence Thomas, appointed by George H. W. Bush; Samuel Alito, appointed by George W. Bush; then Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, appointed by Donald Trump.

Conservatives cheered their nominations, if not proposed them, knowing that one day they would get their wish. They were aided by Republicans in the Senate happy to deny a Democratic president (Barack Obama) his opportunity to fill a vacancy, and later to jam through another nomination (Barrett) days before a general election that ousted a Republican (Trump).

Of course, when asked about abortion, those nominees said they would not touch precedent. They persuaded moderate Republican senators who supported abortion that it was safe to put them on the bench.

The most gullible was Susan Collins of Maine, who was under pressure in 2018 to oppose Kavanaugh. She voted for him. She believed that Kavanaugh would not overturn the abortion ruling because, after all, he’d told her “many times” the decision was settled law. She said the same about Neil Gorsuch.

We don’t know with certainty whether Gorsuch and Kavanaugh will rescind the right, but we certainly assume they will vote with their conservative colleagues.

Poor Collins, as naïve as her critics said, who got up on her low horse Tuesday and said, gee, if the draft ruling stands, it would “be completely inconsistent” with what they told her personally in her office and in the hearings.

Well, yes, it would be, but it would reflect their judicial philosophy, which is the reason they were appointed by Trump, applauded lustily by the Federalist Society and opposed mightily by Democrats and pro-choice women’s groups. All knew what Collins did not.

Now we know the old rules no longer apply. A high court of the United States no longer seeks consensus, or honours precedent or a half-century of law. It ends a constitutional right with a leak — and a shrug.

A president rejects the results of a democratic election and foments an insurrection and walks away unpunished. He is twice impeached and twice acquitted. Senate Republicans eviscerate a black jurist of impeccable credentials, turning her nomination for the Supreme Court into a circus. Their unhinged cousins in the House of Representatives attack America’s support for Ukraine.

All this is tolerated. All is normal. Meanwhile, Republicans in the states put in place the people and rules to overturn the vote in 2024, beginning with the mid-term elections in 2022. Trump awaits, America’s strong man, vowing to make Joe Biden’s presidency an interregnum. (His man, author J.D. Vance, who wants to fire federal bureaucrats and replace them with Trump acolytes, won the GOP nomination Tuesday and is likely to be the new senator from Ohio.)

It may be that ending abortion will send angry women into the streets. It may be that this is the moment a somnolent people sees the threat from a reactionary court, which may now undo contraception and same-sex rights. When Americans understand minority rule is creating an autocracy. It can happen here.

Maybe. If so, and there really is a struggle of values between red and blue states, then the end of legal abortion this spring will be seen as the Fort Sumter of America’s new civil war.

Source: Cohen: U.S. Supreme Court abortion ruling throws away a half-century of law

Filed under gender Tagged with , , ,

Holder: Appointing a Black woman to the U.S. Supreme Court opens the door to better jurisprudence

2022/03/25 Leave a comment

New term for me, “affective appeal,” that captures the importance of representation in public institutions and elsewhere:

In an October, 2013, address at the University of Cambridge Faculty of Law lecture theatre, I showed students a “class photo” of the United Kingdom’s Supreme Court and challenged them to “spot the difference.” It wasn’t a case for Sherlock Holmes: of the 11 justices, all were white, and only one was a woman – the solitary, if indomitable, Baroness Brenda Hale.

A decade later, my colleagues across the Atlantic, thankfully, do not have to play this game with their students. Three sitting United States Supreme Court justices are women, two are non-white, and the country is now on the cusp of another historic judicial appointment. On Tuesday, U.S. Court of Appeals Justice Ketanji Brown Jackson, President Joe Biden’s nominee to replace retiring Supreme Court Justice Stephen Breyer, began her confirmation process in the U.S. Senate. If her appointment is successful, Mr. Biden will not only have fulfilled a major campaign promise by putting the first African-American woman on the Court; he also will have acknowledged a core truth about how legal institutions should work.

Far from being a tokenistic nod to left-wing identity politics (as right-wing critics inevitably will contend), Judge Jackson’s appointment would reinforce an essential but undertheorized feature of well-functioning legal systems: affective appeal. The makeup of a country’s highest court should resemble the makeup of the country.

A critical mass of public buy-in is an indispensable ingredient in an effective legal system. Yet to the extent that the psychological dimensions of law have been considered at all, the focus has been on what social scientists call the “cognitive” side – law’s appeal to participants’ reason – rather than on law as an “affective institution” that is capable of appealing to participants’ emotions. Following psychologist Daniel Kahneman’s well-known schema, legal rules and institutions need to appeal to both of the brain’s thought processes: System Two (“slow,” analytical and theoretical thinking) as well as System One (“fast,” instinctive and intuitional thinking).

The wiring of our brains is a legacy of humanity’s origins in small tribes and kin networks, where trust was largely limited to one’s in-group. As a result, we tend to have far more immediate affective (emotional) connections to people who look “like us.” Under the right conditions, however, personal trust in an in-group member can spill over to impersonal trust in a larger institution.

As linguist George Lakoff of the University of California, Berkeley, and Mark Johnson of the University of Oregon point out, we are all symbolic thinkers. We live by metaphors. Contemporary talk of inclusive institutions and institutional diversity is not just fashionable sloganeering. Rather, it addresses a central need in any complex society. We need institutional structures that can reflect the experiences of a broad cross-section of stakeholders. The reason the Supreme Court and other key institutions should look like the country they serve is not just a matter of politics. It is important for their own proper functioning.

In a highly divided country like the U.S., the legal legacy of slavery and racism is not some old scar. It is an open wound, visible in practices like redlining and voter disenfranchisement, and in tragedies like the police murder of George Floyd. Under these fraught circumstances, the appointment of an African-American woman to the highest court can help to confer the institution with legitimacy in the eyes of a key, long-alienated constituency.

Judge Jackson brings just the right mix of objectivity and empathy to the job. It is to her credit that she has been deemed simultaneously elitist, by dint of her Harvard education, but also suspect, owing to a distant uncle’s incarceration for a nonviolent drug offence. She also has a long track record as a public defender – a first for the Supreme Court.

As critical legal scholars have noted for generations, legal institutions have a mixed record (at best) of delivering justice for the disenfranchised. As such, they have no right to assume their own moral authority. Rather, they need to earn it, which requires constant reinvention.

Judge Jackson is emphatic that she does not view all legal issues through the lens of race. Even so, her nomination raises an important issue of institutional design. By including a representative of the country’s most legally neglected community in one of its most highly respected institutions, the U.S. can set an example internationally.

As in television, cinema, and comedy, faithful representation makes for better storytelling. The mosaic of perspectives introduced into a university department, a marketing department, or a police department by more diverse hiring is not just an affirmative action cliché; it provides the basis for better performance. Similarly, Judge Jackson’s appointment to a seat on the U.S. Supreme Court is not just good politics; it provides the basis for better jurisprudence.

Source: Appointing a Black woman to the U.S. Supreme Court opens the door to better jurisprudence

Filed under Multiculturalism Tagged with , ,

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