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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Donald Trump’s “Sole Organ”

February 26th, 2017

Before he joined the Supreme Court, Rep. John Marshall of Virginia referred to the President as the “the sole organ of the nation in its external relations.” Nearly 130 years later, the Supreme Court adopted this conception of the Chief Executive in United States v. Curtiss-Wright, who serves as the “the sole organ of the federal government in the field of international relations.” While this notion has historically been applied to the realm of foreign affairs, in my writings on the constitutionality of DAPA, I adopted it for domestic matters. Specifically, I cited President Obama’s statements that he could not grant deferred action beyond DACA beneficiaries–a position he promptly reversed–as evidence of bad faith. I was widely criticized for this position, as my interlocutors insisted that courts should not consider off-the-cuff statements from the President.

The closest authority I could find to support this position was an exchange in Hamdan v. Rumsfield between Justices Thomas and Stevens. In dissent, Justice Thomas quoted from a DOD press conference, which explained the purpose of President Bush’s Military Commission Order No. 1. Justice Stevens rejected any reliance on these “press statements,” noting that “We have not heretofore, in evaluating the legality of Executive action, deferred to comments made by such officials to the media.” That is, the policy would be judged on its four corners, and not external remarks. But this did not directly concern the President’s press statements.

In Gridlock, I provide this summary of the doctrine, with references to Presidential pronouncements in Youngstown:

It is true that the President’s statements in informal fora are far different than official executive branch regulations published in the Federal Register or sworn testimony submitted to Congress. But these remarks resonate on a much deeper level. When the President speaks for the nation, he speaks with one voice as the “sole organ” of the United States government.411 This oft-cited dictum from United States v. Curtiss-Wright Export Corp.,412 originally voiced by Representative John Marshall in 1800, is seldom taken literally.413 Usually, courts listen to the “sole organ” speak through the form of general policy statements issued by an executive branch agency, or even developed by the Justice Department during the course of litigation. Seldom do we see such specific reflections from the Commander in Chief himself. Here, the President personally explained the contours of his own authority on a consistent and reasoned basis. That the comments of the only person elected to the highest office in the land were unscripted — and not prepared by an army of speechwriters — elevates this discourse. Further, these were not simply barbs about policy disputes, but explications about his presidential oath to “preserve, protect, and defend the Constitution of the United States.”414 As the President acknowledged during a town hall meeting on police violence, “I’m aware that my words matter deeply.”415 This may be particularly true when the President is, to borrow a phrase from Justice Frankfurter, “learned . . . in the law.”416 Indeed, President Obama has opined that his experience as an attorney makes his statements on executive power more authoritative than those made by members of Congress who are not “constitutional lawyers.”417 Perhaps most importantly, President Obama has defined the bounds of his own power in response to questions from we the people, the ultimate sovereigns in the United States and the source of his authority.418 These presidential pronouncements are not hollow utterances.

As with many of my ideas that that were ridiculed before January 20–such as my work on the need for uniformity with respect to nationwide injunctions concerning immigration–the “sole organ” theory has now gained a certain cache.

In brief after brief after brief in Washington v. Trump, the challengers cited then-candidate Trump’s statements about his desired “muslim ban,” as well as President Trump’s concerns for protecting Christians in majority-Muslim nations, as evidence of unlawful animus. The 9th Circuit judges specifically referenced those statements in its Establishment Clause analysis (though stopped short on relying on them). To prove the point about the “sole organ,” the panel also rejected an attempt by White House Counsel Don McGahn to clarify the executive order, such that green-card holders were not covered. That change had to come straight from the horse’s mouth, so to speak. Even after the 9th Circuit stayed en banc proceedings, on the government’s representation that a new executive order was forthcoming, the Washington AG continues to cite the President’s statements, which conflict with that of the Justice Department.

Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House. On February 16, Defendants filed a supplemental brief on en banc consideration, representing that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order . . . .” 9th ECF 154, at 4. In response, the Court immediately issued an order staying further en banc proceedings. 9th ECF 161.

Yet on the same day—February 16—President Trump directly contradicted the representations made to this Court. During a news conference, the President informed the nation that he is pursuing his appeal in the Ninth Circuit.3 He explained that: “We’re issuing a new executive action next week that will comprehensively protect our country. So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.” Id. at note 3.

In the earliest moments of the Trump Administration, we saw another manifestation of the President’s “sole organ”: the Twitter accounts of executive-branch agencies. The Washington Post reported, “Trump administration officials instructed employees at multiple agencies in recent days to cease communicating with the public through news releases, official social media accounts and correspondence, raising concerns that federal employees will be able to convey only information that supports the new president’s agenda.” The U.S. Department of Agriculture was apparently put under some sort of “gag order,” preventing it from releasing “any public-facing documents.” Similar orders were in effect at the EPA, Interior, and HHS. The National Park Service even apologized for retweeting photographs comparing the inaugurations sizes of President Obama and President Trump.  With respect to Obamacare, the Trump Administration canceled pre-paid advertisements promoting the open-enrollment season. As Eugene Volokh correctly pointed out, there are no free speech issues: “the First Amendment doesn’t give subordinates the right to choose what official government speech contains, over the objections of their superiors.” It is the President, indeed the “sole organ” of social media, that gets to decide what his subordinate agencies tweet.

One final area where the President’s personal statements may come up: in the court martial of Sgt. Bowe Bergdhal. Then-candidate Trump referred to Bergdahl as a “dirty rotten traitor,” and mimicked his execution by firing squad. Bergdahl’s lawyer, Eugene R. Fidell, argued that these statements would prevent a fair trial. The trial court judge denied the motion-to-dismiss, finding that“No reasonable member of the public, apprised of all the facts and circumstances and seeing campaign rhetoric for what it is, would believe that because candidate Trump said those troubling things and is now President Trump, the accused has been or will be denied a fair trial.” This case will be appealed to the Court of Appeals for the Armed Forces, and perhaps ultimately, the Supreme Court. Yet another place where the President’s statements will become par for the judicial diet.

Relatedly, on January 13, a detainee at Guantanamo Bay cited in an emergency motion Trump’s tweet that “these are extremely dangerous people who should not be allowed back onto the battlefield.” His lawyers explained that “the President-Elect has stated publicly his intent not to release any detainees from Guantanamo regardless of the facts or circumstances of their cases.” (Ultimately, Secretary Carter denied the motion to transfer, so the issue was moot).

I will write more about President Trump’s “sole organ.”

Statutory Originalism

February 26th, 2017

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. The volume of information attending the clandestine convention of 1787, while significant, is dwarfed by the legislative records of fairly mundane provisions enacted today. (Although I’ve written that the relevance of modern legislators’ statements–which may be motivated by a contrived attempt to affect judicial review–ought to be diminished). Further, lexicography–the study of language–is far more sophisticated today than it was two centuries ago. When reading a statute of some vintage, where the present-day meaning of a word has shifted, jurists can, and should look, to dictionaries at the time the provision was drafted, to ascertain its original understanding. Indeed, it is neither necessary, nor desirable, to find a dictionary from the same year as the statute. As Justice Scalia and Bryan Garner observed, “Dictionaries tend to lag behind linguistic realities.” If you are seeking the meaning of a well-established term in an 1819 statute, they wrote, ” it is generally quite permissible to consult an 1828 dictionary.”

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”:

Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time period, virtually every dictionary definition of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed.1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change …”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished …”).

The majority opinion by Judge Floyd likewise focused on the American College Dictionary (1970) and Webster’s Third  to “inform our analysis of how the term “sex” was understood at that time.” The full definition from Webster’s Third, is, by far, the most capacious:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.

There is a reason why Webster’s Third was Justice Scalia’s bête noire. As I noted in Unraveled:

Scalia and Garner strongly criticized the follow-up edition, Webster’s Third, because of “its frequent inclusion of doubtful, slip-shod meanings without adequate usage notes.” Antonin Scalia and Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419 (2013). See also MCI Telecomms. Corp. v. AT& T Co., 512 U.S. 218, 228 n. 3 (1994) (per Scalia, J.) (noting that “[u] pon its long-awaited appearance in 1961, Webster’s Third was widely criticized for its portrayal of common error as proper usage,” and citing as an instance “its approval (without qualification) of the use of ‘infer’ to mean ‘imply’”). Merriam-Webster’s editor-in-chief Frederick C. Mish was not troubled. “I regret having to say that Judge Scalia is in error on this matter,” Mish said, “but at least he has the satisfaction of knowing that his error is not reversible by a higher court.” William Safire, On Language: Scalia v. Merriam-Webster, N.Y. Times (Nov. 20, 1994), nyti.ms/292OQ9W.

Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (p. 500). Cambridge University Press. Kindle Edition.

We should never forget that Justice Stevens concluded in Gonzales v. Raich that the cultivation of locally grown marijuana was an “economic activity” by citing Webster’s Third.

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

In any event, relying on Webster’s Third, the GG majority finds that these dictionary definitions are not dispositive:

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge.

This analysis does not really work. There is no evidence that the use of “sum of,” and the word “typical,” were in any way directed at what we gender identity, or behavior aspects of “sex.” Indeed, these qualifying words referred specifically to physiological differences related to reproduction, not identification.  Even in 1972, society was aware of people who were not, from a  physiological, perspective, strictly male or female. This is what Webster’s Third was likely trying to capture, and is distinct from the notion of gender identity. The phrase “gender identity” appears nowhere in any of the contemporary dictionaries. To quote Justice Scalia from MCI v. AT&T, the Court will not accept a definition derived from “a single dictionary … which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries.”

In a footnote, Judge Floyd provides contemporary definitions, which (anachronistically) bolster its interpretation.

Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed.2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed.2011).

Such latter-day definitions are irrelevant for purposes of statutory originalism. In MCI v. AT&T, Justice Scalia further rejected reliance on a dictionary “not yet even contemplated” when the statute was drafted.

Judge Niemeyer’s dissent dismissed the majority’s efforts to disentangle the word “sex” from its traditional definition, involving physiological characteristics.

Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.

In the end, however, the majority does not actually assert that the meaning of “sex” in 1972 included the notion of gender identity. Rather, under the uber-deferential Auer framework, Judge Floyd concludes that though the Department’s interpretation is not “intuitive,” it is “not plainly erroneous.”

We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

On appeal to the Supreme Court, however, this argument will no longer cut it. Even accepting the definition from Webster’s Third (the late Justice is indeed rolling around in his grave), GG’s construction of the word “sex” to include gender identity is not consistent with how the phrase was originally understood. Judge Floyd’s opinion is not the best interpretation, nor is it even a good interpretation of Title IX. It only works, as the 4th Circuit explained, in the Auer context, where–so long as it is not inconsistent with the statute–it will be upheld. That argument no longer controls.

There is indeed a certain appeal to this mode of statutory originalism. During his February 23 press conference, White House press secretary Sean Spicer employed a statutory originalist mode of thinking, asking how members of Congress would have understood the provision in 1972. Here are a few excerpts:

“I mean, if you look at this, the law that was passed in 1972 did not contemplate or consider this issue.”

“The reality is, is that when you look at Title IX, it was enacted in 1972.  The idea that this was even contemplated at that is preposterous on its face.”

“There’s no way that you can read Title IX from 1972 — anybody — and say that that was even contemplated back then.  It just — there’s nobody that is possibly suggesting that the law that was passed in 1972 did that.”

Spicer, not a lawyer, was probably repeating what the Attorney General told him. But it works in very simple sound bites that people can understand. This is likely a preview of what the Justice Department’s position in this case will look like.

Mike Dorf argues to the contrary, citing Justice Scalia.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Dorf’s argument conflates original intent with original public meaning. (Seeking the framer’s intent has long ago been abandoned by originalists of all stripes). Likewise, the GG Brief in Opposition states “When the regulation was drafted, few would have conceived that students like G. would have been assigned a female sex at birth and yet, as a result of hormone therapy, have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and live all aspects of life in accordance with his male gender identity.” (p. 31). All this may be true, but is irrelevant to understanding original meaning.

Title VII prohibits “discriminat[ion] . . . because of . . . sex.” Oncale presented the question whether Title VII is violated “when the harasser and the harassed employee are of the same sex.” That is, would male-on-male sexual harassment run afoul of Title VII? Justice Scalia’s analysis disregards what the drafters intended, instead focusing on what the provisions they enacted mean (or really meant, though he presumes the meaning of “sex” was unchanged in the three decades from the enactment of Title VII and Oncale, which he was almost certainly right about):

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

“The provisions of the law,” that is how statute is understood, trumps the drafter’s “principal concerns.”

To bring this back to GG, it is most certainly the case that the drafters of Title IX in 1972 were not concerned with how transgender students access bathrooms. (To the contrary, there is evidence in the legislative record of a concern that schools would not be able to separate male and female intimate facilities). However, the “provisions of the law” in Title IX cannot be interpreted as was the provision in Title VII. The word “sex” in Title VII had an ascertained meaning in 1968 and 1998, based on physiological characteristics.

There was no jurisprudential principle that would prevent Justice Scalia from applying Title VII to circumstances not envisioned by its drafters (male-on-male harassment) because the language they chose was susceptible to different conditions. The same cannot be said for Title IX, in which the language was not susceptible to sex-discrimination-based-on-identity. To make this originalist case, GG will have to provide contemporary evidence that in 1972, the word “sex” embraced not only physiological differences, but also–in the words of Respondent (p. 30)–“behavioral aspects of sex.” Citing later precedents about sex stereotypes may provide a rule of decision, but does not get you to original meaning. The merits brief has not yet been filed–I will report back once it is posted.

In closing, I’ll note that I predicted–even before the election–that the Chief Justice would rule for the government, by narrowing Auer deference, but ruling that the word “sex” is best understood to embrace gender identity. This would be King v. Burwell redux–strangling administrative deference, without issuing a controversial 5-4 decision on a weighty social issue. But who knows. My predictions are always wrong.

The First Step to Improving Intellectual Diversity, is to Acknowledge There Is A Problem

February 25th, 2017

Debates over the lack of intellectual diversity on law school campuses usually deadlock in one of three ways.

First, many professors assert there is a pipeline problem: on average, fewer qualified conservative faculty members apply for academic positions. Therefore, because the supply of conservative applicants is much lower, it is not surprising that fewer conservatives are hired. Why is the pipeline dryer? Perhaps conservatives–who love money, don’t you know–are more inclined to pursue lucrative careers in private practice. Or, maybe conservatives are less likely to invest the time needed to pursue an advanced degree, so their applications are weaker. Or perhaps the conservative mind, unlike the liberal mind, is less prepared to deal with the delicate, nuanced nature of scholarly discourse, so they choose less rigorous vocations.

Second, other professors claim that there is no overt discrimination against conservative applicants, and indeed, they have never seen a resume that exudes an applicant’s conservative philosophy. Therefore, it is impossible that there is any form of discrimination, because there is no basis on which faculty members could even discriminate.

Third, some professors acknowledge the problem, and candidly maintain that conservative scholars are simply less qualified because their ideas are worse. Or, to use an anecdote one professor related at a debate I attended earlier this year, “the reason why conservatives don’t get hired is because their ideas are just stupid.”

These three defenses illustrate the vicious cycle that is the lack of intellectual diversity. First, because conservatives are less likely to be hired as academics, they are less likely to waste their time pursuing advanced degrees, and more likely to seek careers in lucrative private practice–not the other way around. Further, if law students see that their faculty are overwhelmingly left-of-center, and are less likely to have the mentors to guide them through the process, they are more likely to be discouraged and pass on the career altogether. (Draw whatever analogies you’d like to the impact of an all-white faculty on minority students pursuing legal careers). Second, because any resume that exudes a conservative bend will likely be discarded, right-of-center scholars are drilled on how to make a resume look as innocuous as possible. (I have to laugh, at least internally, when professors insist they have never seen a conservative resume; there are legions of resumes that list employment with NARAL, but not many with National Right To Life). Third, within the academic echo chamber, professors are more inclined to think a theory is “stupid” if it is a theory they are never exposed to in the faculty lounge. Thus, the lack of conservative members on the hiring committee, in the classroom, or at the workshop, reinforces all of these perspectives.

Alas, efforts to challenge this status quo are invariably premised on anecdotal evidence about conservatives being discriminated against at the hiring market. Defenders of the status quo reject this anecdotal evidence, as it does not conform with their experiences on hiring committees, so it cannot be true.

Fortunately, there is a way to resolve this deadlock. The American Association of Law Schools (AALS) maintains extensive records of applicants on the entry-level hiring market through the Faculty Appointments Register (FAR). With proper protections for confidentiality, scholars can systematically compare the intellectual diversity of the applicant pool, with those in fact hired for tenure-track positions. The AALS granted access to the 2007 FAR registry to Professors Trace E. George and Albert H. Yoon. Their research considered how hiring was impacted by an applicant’s race, gender, clerkship, alma mater, advance degrees, and other factors. (Among their findings, “at the intermediate call-back interview stage … women and non-whites are statistically significantly more likely to be invited for a job talk interviews,” but are “no more likely than similarly situated men and whites to get a job offer.”). George and Yoon’s important work, however, did not focus on intellectual diversity.

In January 2016, the AALS executive committee met with several leading conservative and libertarian scholars, including Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and George Dent. These professors asked for the creation of a Political Diversity Task Force, as well as for access to the FAR data, so they could study how ideology impacts entry-level hiring. One month later, the Executive Committee replied that Task Force would not be created, and the professors would not be given FAR access–even to the same data that George and Yoon relied on. In the year since this letter was sent, no action was taken to respond to the concerns.

The first step to improving intellectual diversity on law school campuses is to acknowledge there is a problem. By refusing to even permit a task force to study the issue, and analyze anonymized data that was already released to other scholars, the AALS instead buries its head in the sand.

This absolute frustration led me to sign a letter addressed to the AALS, which was organized by George Dent, and joined by many of my colleagues. I am sick and tired of debating the topic of intellectual diversity, only to have my interlocutor deny there is even a problem. If indeed there is no problem, let the data speak for itself. I will gladly shut up if the law school hiring process is immune to ideological discrimination–especially in public law fields like constitutional law–and that it is merely the case that not enough qualified conservatives are applying. If it is the case that my own personal experiences at the meat market, and those of my Federalist Society colleagues, are mere delusions, I will gladly move onto other matters. However, if there are problems, we can address them. But it is unacceptable to sit by, year after year, and do nothing.

I reproduce the letter, in its entirety:

February 24, 2017

To the Executive Committee, Association of American Law Schools,

There is growing awareness that conservative and libertarian scholars are grossly underrepresented in American colleges and universities and that this imbalance results from political discrimination. For several years now a number of legal scholars have asked the AALS to support the commitment to viewpoint diversity stated in its by-laws. Some officers have taken our concerns seriously. Immediate Past President Kellye Testy was most cordial to us, as were her immediate predecessors, Dan Rodriguez and Blake Morant. I have spoken briefly to the new President, Paul Marcus, and I hope that he will do likewise.

Judith Areen, the Executive Director of the AALS, seems also to take us seriously. She has alerted program organizers to the need for viewpoint diversity. This may explain why a few of us were invited to participate in AALS programs this year. Several people tell me that panels at this year’s Annual Meeting seemed to be better balanced than in the past. In 2016 I was invited to serve on the AALS Program Committee. Other members of that committee seemed receptive to greater ideological diversity in the Association’s special programs.

Unfortunately, these developments seem to constitute the sum total of progress for viewpoint diversity.

The Executive Committee met with Randy Barnett, Brian Fitzpatrick, Jim Lindgren, Amy Wax, and me during the 2016 Annual Meeting. At this meeting we urged, inter alia, the creation of a Political Diversity Task Force on viewpoint diversity similar to the Racial Diversity Task Force created in 1999 or the three task forces created to deal with issues of globalization. We also asked that viewpoint diversity be made a regular element of the sabbatical reviews for member schools, and that scholars be afforded access to the Faculty Appointments Register (“FAR”) for research, subject to strong protections for confidentiality of information about registrants.

In February, 2016 a letter was sent on behalf of the EC stating that no access would be granted to the FAR or even to the data obtained by Professors Albert Yoon and Tracey George when they were granted access to the FAR in 2007. The letter said that the EC had formed a subcommittee to study access to the FAR. A year later, we have not heard that any action has been taken.

In February, 2016 we also received a letter from President Testy saying that she had appointed a subcommittee of the EC to begin assessing practices and processes to see if changes were needed to meet the goals of the AALS. However, so far as we know, no task force was created and no steps were taken to make viewpoint diversity a regular part of sabbatical reviews. Indeed, so far as we know, the EC took no further action whatsoever in response to our concerns.

We fear that the Executive Committee does not take our concerns seriously and intends to take no action to address them. We urge the EC to alter this attitude. Both scholarship and teaching suffer when law schools are echo chambers in which only one side of current debates is given a voice. Should the EC decide to tackle the issues we raise, we will be pleased to cooperate with you in any way we can.

Sincerely,

George W. Dent, Jr.
Jonathan H. Adler
Randy E. Barnett
Josh Blackman
Gerard Bradley
Robert Cooter
Richard Duncan
Scott FitzGibbon
Brian T. Fitzpatrick
Elizabeth Price Foley
Gail Heriot
James Lindgren
John McGinnis
Gregory S. McNeal
Nadia Medzel
Seth Oranburg
James Phillips
Cassandra B. Robertson
Nicholas Quinn Rosenkranz
Ilya Somin
Lee Strang
Eugene Volokh
Kevin Walsh
Lynn Wardle
Steven Ware
Amy L. Wax
Steven Willis
Todd J, Zywicki

Randy Barnett offers more thoughts at the Volokh Conspiracy.

Two Josh Blackmans Check Into the Same Marriott Hotel

February 24th, 2017

On Wednesday, I mobile-checked into a Marriott property in Washington, D.C. for a one-night stay. When I arrived, I showed the clerk my ID. He gave me a room key, thanking me for my two-night stay. Confused, I told him my stay was only for one night. I checked the confirmation email, and it was indeed for one night. Then there was a moment of confusion.

The clerk told me that someone else named Josh Blackman, also from Texas (Dallas) had checked into the same hotel earlier that night. A different clerk inadvertently admitted him under my reservation! If I had to guess, the clerk saw a Texas driver’s license, and didn’t check the address. However, my Dallas Doppelgänger indeed booked a two-night stay, while I reserved a one-night stay.

After we settled the confusion, the clerk booked me under a new reservation (at a lower rate), and to apologize for the confusion, upgraded my room. So in the end, it all turned out well. I’ll report back if I receive Josh #2s points.

And no, contrary to some Twitter talk, I do not have a clone. I do want to figure out who this person is!

Justice Sotomayor Errs on “Basic Constitutional Principles”

February 23rd, 2017

Justice Sotomayor’s dissent in Arthur v. Dunn, a capital case from Alabama, chides the Eleventh Circuit for “contraven[ing] basic constitutional principles.”

Even more troubling, by conditioning federal constitutional rights on the operation of state statutes, the deci- sion below contravenes basic constitutional principles.

Alas, in stating those “basic constitutional principles,” Justice Sotomayor herself erred. She wrote (with my emphases added):

And for more than two centuries it has been axiomatic that this Court—not state courts or legislatures—is the final arbiter of the Federal Constitution. See Marbury v. Madison, 1 Cranch 137, 177 (1803). Acting within our exclusive “province and duty” to “say what the law is,” ibid., we have interpreted the Eighth Amendment to entitle prisoners to relief when they succeed in proving that a State’s chosen method of execution poses a substantial risk of severe pain and that a constitutional alternative is “known and available,” Glossip, 576 U. S., at ___–___ (slip op., at 1–2).

First, Marbury did not asssert the Supreme Court is the “final arbiter” of the Constitution, nor did it say that the power to interpret the Constitution was “exclusive” to the Supreme Court. The penultimate sentence of Marbury states a contrary rule:

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

All “departments” of the government are bound by the Constitution, and each official takes an oath “to support this Constitution.” The former does not have a monopoly on interpreting the meaning of the Constitution. Rather, all officers that take an oath to “support this Constitution,” and have the authority to determine its meaning. This view of shared supremacy is commonly referred to as “departmentalism.” As a matter of practice, members of the executive branch, the legislative branch, and the states, consistently make judgments about what is, and is not constitutional, without ever seeking a judicial declaration. Only the controversial or contested questions are submitted for resolution before a state or federal tribunal—and only the rarest cases are elevated to the Supreme Court itself. This may come as a surprise to most law students—who do little except read cases—but the overwhelming majority of constitutional law is developed outside the friendly confines of Article III.

The case Justice Sotomayor was thinking of, that established the norm of judicial supremacy, was not Marbury v. Madison, but Cooper v. Aaron, which stated:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 5 U. S. 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.”

This has not been the rule for two centuries, but for about six decades (despite the Cooper Court’s unpersuasive effort to recast Marbury). Under Cooper, indeed, the Supreme Court is the “final” expositor of the Constitution, but we should not pretend this principle flows from Chief Justice Marshall.

In any event, Justice Sotomayor is not alone. Justice Breyer made a similar error in DIRECTV, Inc. v. Imburgia, in which he wrote:

The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it. U. S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound” by “the Laws of the United States”).

It is certainly true that the FAA is the “supreme law of the land,” but it does not necessarily follow from the Supremacy Clause by itself that Concepcion is–although it is certainly “an authoritative interpretation of that Act.” Here too, the correct citation is Cooper v. Aaron, not the Supremacy Clause, nor Marbury itself.

For those who are interested, I am working on an article titled The Irrepressible Myth of Cooper v. Aaron. I’ve pulled from the archives all of papers from the Justices that worked on this case, and will trace the drafting of that remarkable opinion, which was signed by all nine Justices. This case is extremely misunderstood–perhaps why the Justices would rather mistakenly cite Marbury, rather than reaffirm Cooper.

Finally, another quip: Marbury said nothing about state courts or state legislatures. Martin v. Hunter’s Lessee established the proposition that the Supreme Court can review judgments from state supreme courts. At the time Marbury was decided, this was admittedly an open question. This is not “axiomatic.”

H/T @Greg651 for drawing this to my attention.