Assisted Living

Ian Ayres

Calls from the public for Justice Sonia Sotomayor to step down so that President Joe Biden can name a younger replacement are unlikely to be effective.  Advice from strangers often carries little weight or might even backfire if the recipient doesn’t want to seem to knuckle under political pressure.

Private suggestions from trusted colleagues are more likely to be taken seriously.  On a Sunday afternoon in 1932, Chief Justice Charles Evans Hughes visited Justice Oliver Wendell Holmes Jr. in his study and persuaded him to resign. 

But providing direct feedback can be daunting.  Direct feedback, even when it is asked for, can cause resentment.  Barry Nalebuff and I have argued that the common knowledge created by direct communication of criticism can ruin relationships. It’s hard to tell a friend that they have bad breath, because they know that you know their breath smells.  

In some cases, the law may also impede this kind of communication.   A dean who suggests that it is time for an older professor to retire might fear being accused of age discrimination.

But there is a way forward.  A few weeks ago, I sent a joint email to about a dozen of my colleagues and family, giving each of them “the opportunity now or anytime in the future to send me an anonymous message advising me to change my ways.”  I told them to feel free to make suggestions concerning large questions (such as when I should retire or stop driving a car) or smaller questions (such as whether I should use more deodorant) or really any mistaken choices they believe me to be making. 

The suggestion box idea is centuries old.  In 1721, a Japanese shōgun placed a suggestion box, called meyasubako, outside of Edo Castle both to collect new ideas and to expose “dishonesty and incompetence.”  During World War II, the defense department circulated a nine-minute film promoting suggestion boxes as a way to improve production efficiency.  Some states have a kind of suggestion box that allows family and friends to anonymously trigger a reexamination of someone’s driver’s license. Some professors supplement end-of-semester evaluations by providing their students with continual opportunities to send anonymous feedback.

But anonymous message platforms carry dangers. Such platforms that are open to the general public, whether they are in high school, college, or graduate school, all too often become toxic spaces of bullying and harassment.  Fortunately, today’s technology allows users to curate the group of potential responders to people they trust. 

I sent my email to a limited group of people that I admire and who see me in different professional and non-professional contexts.  They are well suited to advise me on issues that I worry about (such as when I should retire or stop driving), but I also chose a somewhat eclectic group of friends who might alert me to issues that were not on my radar screen. At a minimum, it is a fun thought-experiment to try to identify the group of people you would most trust to give you anonymous advice. 

My email told recipients that it was fine with me if they talked amongst themselves about whether an intervention is warranted.  Sometimes people will want to have their concern confirmed by others before speaking up.  Observing one driving error might not be concerning, but a pattern of negligence confirmed by others could be.

Asking for advice doesn’t commit me to follow each and every suggestion, but it signals that I welcome their feedback and intend to carefully consider any advice.Technology makes setting up a curated, anonymous suggestion box child’s play.  You can create one with google forms in a few minutes for free. Other apps (for a fee) allow you to write back to the person making a suggestion while maintaining their anonymity.

Most people – including you, dear reader -- will resist the opportunity to create their own suggestion box.  Some may believe that they are unlikely to have blind spots in their decision making.  Others may not be able to identify a group of people who are well-positioned to see their mistakes.  Still others will doubt that the people who see their mistakes would need anonymity in order to provide advice.  I ask you to question whether these excuses are plausible. 

Suggestion boxes are not foolproof.  At times, the advice details will reveal the identity of the sender.  And there is possibility that the recipient will take offense and blame the entire group.  But used wisely, they can be a tool for continuous improvement and thoughtful change.

As for me, the most challenging feedback so far has been the suggestion to yield to my spouse's wish for a dog. While it may seem minor, it speaks to the broader principle of being open to change and advice, even in the most personal aspects of our lives. By resending the email to my friends every few years I can emphasize that the door to improvement is always open.

I have colleagues who cling to their tenure to the detriment of their institutions and their own legacies.  By creating a way for trusted friends to show me the error of my ways, I hope to avoid this and other missteps.  For me, it’s a way of committing to being mentored. 

In the end, embracing such feedback mechanisms can lead to better decisions, a more thoughtful approach to transitions like retirement, and perhaps, a new canine companion.

Strategic Litigation as Seen by Journalists and Academics

Mark Tushnet

Sunday’s NY Times had a story about “the network that took down Roe v. Wade.” From an academic’s point of view, the journalistic breathlessness (“told for the first time,” accounts of “secret meetings”) is dismaying. The story the authors tell is basically a story about how strategic litigation of all sorts occurs. I know about the NAACP’s school desegregation litigation campaign, the NAACP’s anti-death penalty campaign, and parts of the ACLU’s prisoners’ right campaign, and everything in the Times article can be found in those stories as well.

As far as I can tell, for example, the characterization of a meeting as “secret” means that the organizers and participants didn’t issue a press release before or after the event. The decision to issue press releases or otherwise make it widely known that a planning meeting is occurring or has occurred is choice made within the context of strategic planning—sometimes you’ll want to let people know, sometimes you won’t. The interesting point, again from an academic’s point of view, is what goes into making one or the other choice, and the article’s breathlessness prevents the authors from asking that question. And the same point could be made about each element in the Times article.

Put another way, the authors, for understandable marketing reasons, present a quasi-conspiratorial account of a right-wing litigation campaign, seemingly to discredit the campaign because it’s a right-wing litigation campaign. Maybe, though, one could read it is raising questions about litigation campaigns no matter what their political valence (though I don’t think such questions are serious). So, for example, one might ask about the possible lack of concern about the litigants the campaigners purport to represent to see how that plays out in this campaign as compared to others. That question surfaces at one point in the article, where the advocates for an incremental challenge to Roe lose out to the choice made by the lawyer for the actual litigant. An academic account would have given that moment a more prominent place.

(For what it’s worth, one of the major players in the article is Misha Tsetylin, who was a student of mine in the basic con law course at Georgetown. As I recall it, he was extremely articulate in presenting the then-standard conservative responses to then-standard liberal critiques of originalism, which meant that he was a valuable contributor to the class discussion. I don’t recall whether I was satisfied with having the standard arguments “on the table,” so to speak, or whether I tried to push the arguments beyond the standard ones [my vague sense is the former rather than the latter]. Again as I recall [which I suppose matters for student privacy reasons], I think he received either the highest grade in the course or one of the highest—which might be an anecdata point about blind grading and liberal bias, though I suppose it’s possible that on his exam he concealed his true views and so accurately parroted my own that I thought he deserved a very high grade! I think that that possibility is remote, of course.)

A Dog Whistle for Rape

Ian Ayres

If Stormy Daniels’s sworn testimony is to be believed, the intercourse that she and Donald Trump engaged in was (1) a first-time sexual encounter, and (2) unprotected.  Katharine Baker and I have argued in a piece published in 2005 (less than a year before Daniels and Trump met at Lake Tahoe) that unprotected, first encounter sex is “reckless” and that it might be appropriate to enact a separate crime for this form of sexual misconduct:

A defendant would be guilty of reckless sexual conduct if, in a first-time sexual encounter with another person, the defendant had sexual intercourse without using a condom. Consent to unprotected intercourse would be an affirmative defense, to be established by the defendant by a preponderance of the evidence. As an empirical matter, unprotected first-time sexual encounters greatly increase the epidemiological force of sexually transmitted disease, and a substantial proportion of acquaintance rape occurs in unprotected first-time sexual encounters. The new law, by increasing condom use and the quality of communication in first-time sexual encounters, can reduce the spread of sexually transmitted disease and decrease the incidence of acquaintance rape.

Unprotected, first-encounter sex between Trump and Daniels was (if Daniels testified truthfully) reckless in part because it exposed others – including Melania Trump to potential infection.  Public policies to reduce the prevalence of unprotected first-time sex can reduce the epidemiological force of sexually transmitted diseases because a substantial proportion of sexual pairings never persist beyond an initial encounter.  In analyzing the National Health and Social Life Survey database, we found that 46.2% of all sexual pairings were one-off encounters:

This means that if society could somehow induce people to use condoms in all of their first-time sexual encounters (even if we left unchanged the amount of sexuality and the degree of condom use in subsequent sexual encounters), we would suddenly eliminate roughly half the possible nodes of contact for spreading disease. We might so dramatically reduce the mean number of connections in the population as to render infections unsustainable over time.

Inducing more first-encounter condom use would be particularly effective at reducing STDs because it would specifically target the “superspreaders” – individuals who have sex with many partners and thereby provide connective nodes for infections to spread.  We found that 10 percent of most sexually active people reported having 75.4 percent of the total number of sexual partners. We also found, unsurprisingly, that the most sexually active had the highest proportion of one-time sex.

Reasonable people can oppose expanding the scope of criminal liability.  But a bigger take-home lesson of our article was to show that a policy goal of promoting more condom use during first-encounter sex is laudable.  I’ve separately argued that public health officials should improve messaging on when condom use is advisable.

Preventing STDs was only one reason that we proposed a crime of reckless sex.  We also hoped to make it easier for prosecutors to secure convictions in circumstances where it has been difficult to hold acquaintance rapists accountable due to the difficulty of proving non-consent beyond a reasonable doubt.  The lion’s share of acquaintance-rape is first-encounter unprotected sex.  This does not mean that all or even most first-encounter, unprotected sex is non-consensual.  But it does mean that first-encounter sex is more likely to be non-consensual if it is unprotected than if a condom had been used. 

This is an inference that Trump’s own lawyer seemed to understand.  She argued to the court that allowing Daniels’s testimony that the sex was unprotected was prejudicial because lack of condom use is “a dog whistle for rape” (p. 282) – particularly after prosecution had elicited testimony from Daniels that she insisted on only working a production company that mandated condom use. 

The judge called out defense for failing to object to the condom testimony: 

[T]he mention of the condom. I agree that shouldn't have come out. I wished those questions hadn't been asked, and I wished those answers hadn't been given. But for the life of me, I don't know why Ms. Necheles didn't object. She had just made about ten objections, most of which were sustained. Why on earth she wouldn't object to the mention of a condom? I don't understand. 

Notwithstanding the assertion that Daniels’s testimony contained a dog whistle for rape, the purported encounter would not have been an appropriate basis for prosecution under our proposed statute.  Given her testimony that sex was consensual, Trump would be able to establish the affirmative defense of consent by a preponderance of evidence.  But we should not forget that the unprotected, first-encounter sex alleged by Daniels was reckless in our second sense, in that it unreasonably of increased the risk of STD infection for themselves and others.

The Constitution Turned Upside Down

Gerard N. Magliocca

The Supreme Court's erroneous decision in Trump v. Anderson is more obvious after Donald Trump's first criminal conviction. 

Section Three of the Fourteenth Amendment established that the appropriate sanction for engaging in insurrection against the Constitution was civil disqualification from office, not criminal punishment. Trump v. Anderson reached the opposite conclusion. The Court there held that states can sanction insurrectionists holding or seeking federal office only through criminal law. And that is what New York and Georgia are now attempting to do. 

I don't think that these cases would have been brought if Trump was not a candidate for President. Even if I'm wrong about that, the damage done by these prosecutions is much greater because he is a candidate. If Trump loses in November, many people will conclude (not unreasonably) that the conviction did him in. This will encourage future state prosecutions of candidates for federal office either as a Section 3 proxy or out of partisan revenge. That's more dangerous than the fear expressed by some of the Justices that there would be a retaliatory cycle of state ballot exclusion. 

One final thought--the Supreme Court's refusal to say whether Trump is constitutionally eligible to be President, combined with Trump's state conviction, increases the probability of instability following the election if Trump wins. There is a May 1914 quality to the unwillingness of people thus far to think hard about that problem.

Balkinization Symposium on David Pozen, The Constitution of the War on Drugs-- Collected Posts

JB

Here are the collected posts on our Balkinization symposium on David Pozen's new book, The Constitution of the War on Drugs (Oxford University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Rachel E. Barkow, Constitutional Withdrawal

3. Louis Michael Seidman, Pozen and the Puzzle of Counterfactuals

4. Kimani Paul-Emile, Looking Inside and Outside the Law to Understand the Successes and Failures of Drug Reform

5. Jennifer D. Oliva, Pozen on Prosocial Drug Use

6. Shaun Ossei-Owusu, The (In)Fertile Constitutional Ground of American Drug Policy

7. Kate Shaw, David Pozen, The Constitution of the War on Drugs

8. Paul Butler, The Constitution of the War on Black People

9. David Pozen, The Constitution of the War on Drugs: Response to Commentators

Reading the Tea Leaves on Marijuana Rescheduling

David Pozen

The Controlled Substances Act authorizes the attorney general to schedule drugs. Schedule I of the CSA imposes a complete criminal ban; schedules II through V allow drugs to be prescribed under certain conditions. For decades, the attorney general has delegated this authority to the Drug Enforcement Administration, which has consistently opposed any and all efforts to let marijuana leave schedule I. It was therefore big news when the Associated Press reported on April 30 that the “U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug.” After decades of demonizing marijuana, I assumed, DEA had finally endorsed some reefer sanity. I now believe this assumption was wrong.

The following pieces of evidence make it pretty clear that DEA has, in fact, continued to resist the rescheduling of marijuana. I have no inside information of any kind; everything here is in the public record. 

The Constitution of the War on Drugs: Response to Commentators

David Pozen

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

I am indebted to Jack Balkin for organizing a symposium on my book, The Constitution of the War on Drugs, and to all of the commentators for offering such rich reflections. The book recovers a lost history of constitutional challenges to punitive drug policies and argues that this history can tell us a great deal about American legal liberalism as well as drug prohibitionism. It is particularly gratifying to see distinguished scholars of constitutional law, criminal law, and health law recognize the importance of this project for their respective fields, even as they raise very different challenges and complications. In this response, I will try to address some of the key points raised by each commentator.

Access to Life- and Health-Preserving Care - A History and Tradition

Guest Blogger

Reva Siegel and Mary Ziegler 

We have just posted a revised draft of Comstockery, the first legal history of the Comstock Act since antiabortion lawyers have attempted to transform it into a de facto national ban on mailing abortion-related items. Our draft challenges the claim that the obscenity law is a plain-meaning, no-exceptions, national ban by tracing health-based access to reproductive care over the life of this statute. The history we excavate in fact bears on arguments in two abortion cases now before the Court —Food and Drug Administration v. Alliance for Hippocratic Medicine and Moyle v. United States and Idaho v. United States. As we discuss in the new draft and in forthcoming work, interpretation of the Comstock Act provides a window on this nation’s history and traditions, in ways that concern both abortion cases the Court will decide this term.

A Hidden Subtext of the Gettysburg Address?

Gerard N. Magliocca

I've been doing some research on the history of the draft and came across something interesting. On November 9, 1863, the Pennsylvania Supreme Court issued a 3-2 decision (Kneedler v. Lane) holding the federal military draft unconstitutional. Ten days later, Lincoln gave the Gettysburg Address.

Reading the Address with this sequence of events in mind, the speech looks like a rebuke of the decision. Could that have been one of Lincoln's goals? Did anyone at the time pick up on this? I don't know, but I'm going to try to find out.

The Constitution of the War on Black People

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Paul Butler

Like most users of illegal drugs, I have never been caught.  I have lots of company, David Pozen reminds me, in The Constitution of the War on Drugs, his prodigiously researched take down of said war but not said constitution.  He references a 2007 National Survey on Drug Use and Health that revealed that more than 100 million Americans had used marijuana (during a time when it was illegal in all US jurisdictions), 36 million had tried cocaine and 34 million hallucinogens like LSD and Ecstasy (p. 151-152).  These are my peeps, the great majority of us gloriously unpunished for our criminal transgressions.  In that sense, the phrase “war on drugs” suffers from the same imprecision as the phrase “mass incarceration.”  Scholars have observed that it’s not actually the masses that are being incarcerated at obscene levels but rather Black people.  Likewise, the war on drugs has been principally waged not so much on drugs but on people of color, especially Black people. 

Calling it a war on Black people might sound histrionic and conspiratorial but that’s not the main problem.  Lots of things happen to Black people that sound histrionic and conspiratorial, but they still happen.  The main problem with calling the war on drugs a war on Black people is that it sounds overinclusive.  I am Black and I have never been caught using illegal drugs the many times I have used them.  My experience as a prosecutor, which included a year locking up drug “offenders” in Washington D.C. taught me that the people who get caught are sometimes foolhardy – for example, getting high in public places in one of the most policed cities in the world, or unlucky.   Most Black users, like users of other races, have the good sense to indulge in private spaces, usually far from the prying eyes of law enforcement.  That’s how, playing the mind games familiar to Black prosecutors whose work mainly consists of locking up Black people, I justified prosecuting people for weed crimes when I had committed them myself.   My defendants, I told myself, were stupid to get caught.  In contrast, I stopped smoking weed when I began enforcing anti- drug laws, not based on any abstract concern about hypocrisy but because my employer, the United States Department of Justice, required random drug testing of its staff.

David Pozen, The Constitution of the War on Drugs

Guest Blogger

Seeing the University More Clearly

David Pozen

Crisis can be clarifying. Recent events on campuses across the country have forced many of us to look more closely at how our own universities work. I have no special insight into most aspects of the Columbia protests or the administration’s response. But as someone who studies public law and nonprofit law, I have been struck by a number of legal-institutional forces that helped bring Columbia to its current conjuncture—all of which relate, in various mutually reinforcing ways, to the power of the president’s office.

The (In)Fertile Constitutional Ground of American Drug Policy

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Ten years ago, Frank Zimring chastised legal academia for being insufficiently relevant in their teaching and scholarship. “Over a thousand of the best and the brightest criminal minds in America have been missing in action” from one of the “key debates of their field”—the War on Drugs. Zimring’s claim may have been inflated, but he raised a fair point about the relative insignificance of this governmental crusade in legal scholarship and education vis-à-vis its impact on society.  

In his recent book, The Constitution of the War on Drugs (CWD), David Pozen brings his con law talents to the crime-infested world of narcotics regulation and responds (albeit indirectly) to Zimring’s clarion call. But there is one caveat that distinguishes this slim, readable book from previous takes: Pozen is less interested in the criminal procedure questions that scholars of drug policy have obsessed over (though he nods to them and describes them to the non-legal reader). Instead, he is interested in constitutional provisions that have been used to challenge drug prohibitionism.

From my reading, Pozen seems animated by several questions, most relevantly: Where was constitutional law during this albatross of a policy experiment? How did litigators deploy constitutional provisions? Where were the missteps by advocates and courts? Did glimmers of constitutional hope exist? What were the paths not taken? In this vein, the reader gets some freedom of speech and religion, equal protection, commerce clause, penumbral privacy, and even a drizzle of comparative constitutional law, amongst other issues. In the end, Pozen shows how, in some instances, federal constitutional provisions (and state analogs) provided opportunities for challenging the War on Drugs but were ultimately overturned, rejected, or not fully adopted.

My goal here is not to rehash the analysis of a book that I think students of criminal justice and constitutional culture should buy, read, and engage. Instead, I want to raise a few issues that stood out to me as someone ensconced in that first camp, but who cares about the latter. My hope here is to trigger more inquiries or prompt additional discussion from Pozen.

Pozen on Prosocial Drug Use

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Jennifer D. Oliva 

The United States has long waged a “costly, punitive, racist, and ineffective” drug war “that has been a failure on all counts.” Over the last half-century, Americans have sacrificed trillions of dollars to prop up a prohibitionist drug law and policy framework that has ensured ever-escalating and record-setting drug-related mortality and enshrined the United States as the world champion mass incarcerator. Columbia law professor David Pozen’s book, The Constitution of the War on Drugs, breaks new ground by exploring the evolution of American drug prohibition through the lens of constitutional law. 

The drug war is a glaring example of policy failure driven by American “racial and spatial logics.” As historian Matthew Lassiter pointed out, “[t]he modern war on drugs has operated through the reciprocal decriminalization of whiteness and criminalization of blackness and foreignness, grounded in selectively deployed law enforcement and the discursive framing of idealized suburban spaces and pathologized urban slums and bordertowns.” In that connection, drug war logic is stubbornly immune to evidence-based policy.  While purporting to classify drugs as either licit or illicit based on their safety, medicinal value, and “potential for abuse,” American law is more likely to deem a particular substance illicit due to its use association with certain groups than its toxicological risk-benefit profile. This is why cannabis and various psychedelics, such as psylocibin, which are associated with racialized minorities and contingencies on the political left, are illicit under federal law, while substances like alcohol and tobacco, which account for approximately 40 times the number of deaths than all illicit drugs combined but are associated with North American colonizers, are widely available for recreational use. 

The drug war’s irrationalities, inequities, and hyper-reliance on harsh punishment to deter the private use of particular substances, including drugs that promote positive health outcomes and prosocial experiences, seem ripe for constitutional challenge. Indeed, inspired by civil libertarians, drug reformers brought “a tidal wave of constitutional challenges to state and federal drug prohibitions,” including due process, equal protection, cruel and unusual punishment, and First Amendment challenges to punitive drug laws in the late 1960s and 1970s. While those reformers achieved temporal successes, the “tidal wave was swept back to the sea” as their legal victories were “overturned, minimized, or ignored by later courts.” As Pozen notes, not only has constitutional law failed to constrain or reform punitive drug prohibition—“one of the most ‘obviously defective and destructive’ policies in modern American history”—it has repeatedly legitimized and perpetuated the drug war.

Looking Inside and Outside the Law to Understand the Successes and Failures of Drug Reform

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Kimani Paul-Emile 

Much has been written about U.S drug prohibition over the years, so it is surprising that no one until now has used the constitution as lens for examining it.  In his excellent new book, The Constitution of the War on Drugs, David Pozen exhumes the long-buried history of constitutional challenges to punitive drug laws and masterfully chronicles how the judiciary was used by reformers and the state to dispute, rationalize, and ultimately enable the widely maligned war on drugs.  After documenting the ways in which constitutional law has failed to offer a path to more sensible and humane drug laws, Pozen observes that drug reformers today “do not invoke our supreme law”[1] and asks whether drug reformers even “need constitutional law at all to dismantle the war on drugs.”[2]  Like Pozen, my response to his query is an emphatic no.

Pozen and the Puzzle of Counterfactuals

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Louis Michael Seidman 

                David Pozen’s carefully researched and brilliantly argued book on the Constitution and the War on Drugs is both illuminating and disturbing.  No surprise there.  Pozen is our country’s most inventive and interesting young constitutional scholar. 

The book is illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window.  Even today, Pozen argues, there are underexplored and plausible constitutional arguments supporting a personal right to drug use. 

The book is disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world – questions familiar to students of historiography and philosophy and that once divided the Critical Legal Studies movement but that have not been adequately discussed in modern normative constitutional scholarship. 

In this review, I concentrate on these problems.  I argue that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions about constitutional reform in general and about the reform Pozen suggests in particular.

The Media and the Heckler’s Veto at UCLA

Joseph Fishkin

Constitutional Withdrawal

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Rachel E. Barkow

You might think the only thing harder than finding something new to say about constitutional law is finding something new to say about the drug war. David Pozen’s new book, The Constitution of the War on Drugs, offers refreshing and thought-provoking insights on both by exploring what the Constitution has to say – or could have said, with a different set of justices – about drug prohibition and enforcement. Pozen sets the stage for his analysis by asking “[h]ow could a set of policies as draconian, destructive, and discriminatory as those that make up the war on drugs come to be deemed, by so many officials and for so many years, to raise no serious constitutional problems?” 

In seeking to answer that question, Pozen exposes not only the limits of various constitutional doctrines to address one of the government’s greatest failures, but also the selective activism on the part of the Supreme Court justices. Pozen persuasively argues the ways in which the Court’s approach to drugs differs from its treatment of issues like reproductive choice and gun rights. That sets up the puzzle Pozen seeks to answer, as he explores why that differential treatment occurred. To those of us who focus on criminal law and punishment more generally, however, drugs do not stand alone. They are just one part of an enormous project of mass incarceration that the Court, and by extension, the Constitution, has ignored.

Balkinization Symposium on David Pozen, The Constitution of the War on Drugs

JB

This week at Balkinization we are hosting a symposium on David Pozen's new book, The Constitution of the War on Drugs (Oxford University Press, 2024).

We have assembled a terrific group of commentators, including Rachel Barkow (NYU), Paul Butler (Georgetown), Paul-Emile Kimani (Fordham), Jennifer Oliva (Iowa), Shaun Ossei-Owusu (Penn), Louis Michael Seidman (Georgetown), and Katherine Shaw (Penn).

At the conclusion, David will respond to the commentators.

On abortion, the Supreme Court shows it doesn’t care about democracy after all

Andrew Koppelman

In Dobbs v. Jackson Women’s Health, the Supreme Court famously declared that it was returning the abortion question to the voters.  The people could decide whether or not abortion was to be prohibited.  So, when a federal statute required that hospital emergency rooms offer abortions to women who face imminent medical disaster if they continue their pregnancy, the Justices who voted to overrule Roe v. Wade unhesitatingly enforced that statute’s plain language, relieved that the elected representatives of the people had taken this fraught issue off their hands.

Oh wait.  That’s not what happened.  The Court is so hostile to abortions that, to prevent them, it will defy the national legislature and harm women.

I explain a new column at The Hill.

Writing "For the Ages," Judicial Estoppel, and Trump v. United States

Mark Tushnet

So, we’re supposed to think that the Supreme Court’s decision in Trump v. United States will be one “for the ages,” as Justice Gorsuch pompously said. That self-inflated statement reflects a view of precedent that’s at best naïve, and probably worse: silly. Should another case involving a claim of presidential immunity from criminal liability come up in the future, the first question (about precedent) that justices in the future will ask themselves is, “Is there a principled way to distinguish this case from Trump?” If the justices are minimally good at doing law, the answer will inevitably be, “Yes.” The second question, then, will be, “Should I rely on that distinction?” That’s a decision the future justice will have to decide for herself (or, in the event the case comes up soon, that Justice Gorsuch would have to decide for himself). Nothing in the Trump decision can possibly help answer that question. So, “the ages” means—“until the next time we have to face the question.” 

That understanding of precedent—for me, the only sensible one—means that judges shouldn’t (to repeat myself) pompously inflate their sense of how important they are. And, notably, there’s a quite deflationary way out of the Trump case that—probably because they all have a pompously self-inflated sense of their importance—none of the justices seemed interested in exploring. 

There’s a relatively obscure and rarely invoked doctrine known as judicial estoppel (or, sometimes, estoppel by prior position). The Court put it this way: When a party “assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The Trump case seems to me a good candidate for invoking the doctrine, and doing so would have almost no implications for how presidents (as potential defendants and potential chief law enforcement officers) could behave in the future (subject to my opening comment about precedent). 

In his second impeachment trial, through his lawyers Trump asserted that one ground for acquittal was that he was subject to potential criminal liability after he left office. And, although we can’t know why everyone who voted to acquit him did so, at least one Senator explained his vote by invoking Trump’s potential criminal liability. Those look like facts that could plausibly trigger the doctrine of judicial estoppel. (It’s irrelevant that the lawyer who represented Trump at the impeachment trial and made this argument on his behalf is different from the one who represented him in the Supreme Court. It’s the party, not the lawyer, who matters.) 

Of course invoking the doctrine wouldn’t be as simple as repeating the quote I’ve given. You’d have to explain why an impeachment trial is sufficiently similar to a criminal trial or other judicial proceeding to trigger the doctrine and you might want to worry a bit about whether the doctrine would apply when the initial proceeding was before an administrative agency. And you’d probably have to explain why the current charges against Trump are sufficiently similar to those in the impeachment trial to trigger the doctrine. Neither explanation would, I think, take more than a paragraph (impeachment trials are formally quite a bit like trials in the ordinary courts, and my guess is that you can probably find a case or two invoking judicial estoppel in connection with administrative proceedings; the charged actions are sufficiently similar that Trump’s incentives to assert defenses are equivalently strong). A little trickier, as I’ve noted, would be showing that Trump “succeeded in maintaining the position” that he was subject to subsequent prosecution. There’s enough precedent to support the proposition that statements by individual members of a multimember body can be attributed to the body itself (most recently, in Masterpiece Cakeshop). And, the problem is going to come up so rarely that worrying about pinning down every possible variation is—again given a sensible view of precedent—not worth the time. 

A couple of mopping up details: I assume that judicial estoppel isn’t fairly encompassed within the question presented—but respondents are entitled to rely on any available argument to support the judgment under review (the “fairly encompassed” rule applies to petitioners/appellants). And there’s a paper rattling around by Margaret Lemos and Deborah Widiss pointing out that many members of the current Supreme Court have criticized the government for changing its position, sometimes but not always because of a change in administrations. Lemos and Widiss explain that there are sometimes good institutional reasons for such changed positions—but, notably, the institutional reasons aren’t available when an individual litigant changes his or her position. 

So, to go back to the beginning: Why hasn’t anyone paid attention to the availability of the judicial estoppel argument? I’m not saying that the argument’s a slam-dunk—just that it could be invoked in ways that wouldn’t open up the larger issues that the justices seemed preoccupied with at the oral argument. 

But, I suppose, that’s precisely the point. They—and, unfortunately, maybe we—think that they’re supposed to opine on deep questions about government structure given any chance to do so. You don’t have to be as skeptical as I am about the contributions the Supreme Court makes to good governance to think that that belief is misplaced in Trump v. United States.

A few preliminary reactions to the oral argument in Trump v. United States

Marty Lederman

I might write further about Thursday's oral argument when I get a bit more free time (end-of-semester obligations and all!), but I thought that in the meantime it might be worth noting a few things in fairly summary fashion while they're still fresh.

As Jack Goldsmith noted the other day, and as I explain further in my amicus brief, there are actually three different sorts of questions before the Court--the "immunity from prosecution" question described in the Question Presented, and another two questions that former President Trump included in his merits brief although he hadn't raised them below, each of which concerns whether Trump was even bound by the prohibitions in the three statutes at issue here, entirely apart from any question of immunity from prosecution.  The Justices asked questions bearing on all three of these issues at oral argument.  I'll address them in turn.  

Spoiler alert:  It appears that what's of most concern to the Justices isn't really any question of immunity from criminal prosecution but instead whether the substantive criminal statutes here might raise serious constitutional questions when applied to applied to certain types of official presidential conduct that aren't present in the Trump case.  I discuss that issue in the third section below. 

What About Watergate?

Gerard N. Magliocca

I was traveling yesterday and unable to listen to the oral argument in the Trump immunity case. I've only read the transcript. But I don't understand how the Court's thinking can be squared with Nixon's alleged crimes during Watergate. Many of his actions there were official. Indeed, much of the problem was that he abused his official powers (for example, by ordering the CIA to cover up the burglary).

I take it that the Court believes that Nixon could have been prosecuted after he resigned. Is the answer, then, that his actions during Watergate will be recharacterized as unofficial? If so, that comes close to making real the joke in a "Yes, Prime Minister" episode where an action is described as "unofficially official but officially unofficial."

Why Can’t House Republicans Have Nice Things?

David Super

      That may seem a strange and perhaps uninteresting question to ask, particularly given that I (and I suspect many readers) have no great desire for the current set of House Republicans to enjoy nice things (except, perhaps, all the many perks our system offers to former Members of Congress).  Yet on the face of it Freedom Caucus Members would seem to have a point when they say that surely Speaker Johnson could have extracted some concessions for the Ukraine aid bill now moving through the House. 

     The answer provides important insight into how Congress works; that insight's importance goes far beyond today’s House Republican Conference.  Today’s Democrats (and Senate Republican leadership) seem to have mastered these lessons; that has not always been the case and may not be in the fairly near future.

Norm Breaking at Columbia

David Pozen

Recent events at my home university have inspired a torrent of critical commentary. That Columbia’s leadership declined to follow various norms of campus governance does not, in itself, prove that it acted unwisely. But seeing the pattern of norm breaking helps throw into relief the potential costs of its decisions in the future as well as the present. 

First, during President Shafik’s testimony on Wednesday before the House Committee on Education and the Workforce, she disclosed that several faculty members are under investigation for making discriminatory remarks. “President Shafik’s public naming of [these faculty members] to placate a hostile committee,” the American Association of University Professors observed, “sets a dangerous precedent for academic freedom and has echoes of the cowardice often displayed during the McCarthy era.” In setting this precedent, Shafik violated a longstanding norm of confidentiality regarding internal disciplinary proceedings. University rules provide that allegations of discrimination will be handled in a confidential manner. Often, these proceedings are handled so secretively that even the complainant is kept in the dark. To have an ongoing investigation revealed by a top administrator on live TV, in the absence of a subpoena or other legal compulsion, is a stunning departure from campus customs and investigatory best practices more generally.

Abrams Institute Conversations: Will the Supreme Court Let States Take Control of the Internet?

JB

Here is a conversation between Tim Wu and myself, moderated by Floyd Abrams, about the First Amendment issues in the NetChoice cases before the Supreme Court. (Tim and I participated in writing amicus briefs on opposite sides of the case.) 

This event, which was recorded on March 4, 2024, is a part of a series of conservations on free speech issues hosted by the Abrams Institute for Free Expression at Yale Law School. 

The Supreme Court's First Chat-GPT Opinion

Gerard N. Magliocca

A bill is pending in the Nebraska Legislature to return that state to a "winner-take-all" system for allocating electoral votes. In 2020, President Biden won an electoral vote in Nebraska under the current "split" system even though President Trump easily carried the state. Nebraska Republicans are eager to avoid a repeat especially given that the 2024 election could come down to a single electoral vote.

If enacted, this law should face constitutional questions under Trump v. Anderson. Some of the Justices at oral argument expressed dismay at the possibility that one state could decide a presidential election. This was contrary to the Constitution's structure, they said. They also worried about retaliation. If Nebraska can do this for partisan advantage, why can't another state do the same? Where will this end? 

Of course, no such constitutional scrutiny will be given to this sort of change in Nebraska or to state laws that will probably keep Robert F. Kennedy Jr. off the presidential ballot in some states. The logic of Trump is something that only Chat-GPT could love.

UPDATE: Nebraska lawmakers voted down the bill and doubled down on our patchwork method of allocating electoral votes.

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman

Mark Milley and the Constitution

Mark Tushnet

One matter that’s been largely unremarked upon in discussions of Trump, January 6, and the abortive “coup d’etat” (scare quotes because, compared to real coup attempts this one was a comic opera) is the role of the US military—or, more precisely, the proposition, which everyone seems to take for granted, that the US military wouldn’t have supported the coup (in contrast to Brazil, where the possibility of military support for a Bolsonaro coup was real and openly discussed). What follows are some tentative thoughts about this issue.

That the military would not intervene is taken for granted, I think, because people assume (correctly) that military leadership at the highest levels understands that their duty is to support and defend the Constitution. As Jeff Powell and others have said, one (unwritten) constitutional principle is that political change is never to be carried out through direct exercise of violence (though any realistic view of constitutional change has to acknowledge that violence often lies in the background of such change). The difficulty, though, is that another (partly written) constitutional principle is that the military is ultimately under civilian control.

The taken-for-granted assumption about Trump and the attempted coup is that military leaders would have ignored/defied a direct order from the (still) commander-in-chief to intervene on his behalf—that is, would have ignored the principle of civilian control of the military in the service of their own understanding of basic constitutional principles (here, the principle about direct force and political change). I have a strong sense that even the most extreme of Trump’s advisers—and so Trump himself—knew this and so didn’t even explore seriously the possibility of issuing such a direct order.

I’m not sure that we “constitutionalists” should be completely comfortable with that (as a general proposition). Consider a scenario suggested to me by my reading of Uwe Wittstock’s terrific book, February 1933. The Proud Boys and similar groups become serious paramilitary organizations carrying out terroristic attacks on liberals on a regular and reasonably large scale. Congress responds by authorizing the president to deploy regular military force to suppress paramilitary organizations. Do we want the Joint Chiefs of Staff to decide whether that statute, or actions taken by the president to suppress right-wing paramilitaries, is consistent with their independent view of what the Constitution permits?

I’ve worked out (for myself) scenarios in which political actors effect a change in the method of choosing the president that eliminates the Electoral College. Suppose there’s an election which candidate A would have won the electoral college but candidate B wins under the revised system, and suppose the Supreme Court holds that the constitutionality of the revised system is a political question. Do “we” want the Joint Chiefs to intervene on candidate A’s behalf?

The problem I’ve sketched is, I think, a version in the non-judicial context of what Alex Bickel called “the moral approval of the lines”—“we” take for granted that following Trump’s orders would have been a bad thing and so aren’t concerned about the (implicit, assumed) disregard of the principle of civilian control of the military. Bickel’s point was that times change, and so do views of what lines should be approved morally. That seems to me true in the context I’m dealing with here as well. (The scare quotes around we are there is signal that Trump's supporters might well give answers different from the ones most readers of this blog would give.)

Bickel was working in the “neutral principles” tradition, and realists/crits have a number of responses applicable to the non-judicial context: carpe diem/sufficient unto the day is the evil thereof; doing the wrong thing now because somebody else might do a different wrong thing in the future is a fool’s game.

As noted, these are tentative thoughts—but I do think that the issues deserve more exploration.

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Andrew Koppelman

Send in the Clowns

David Super

     So with just over six months remaining in the fiscal year, the federal government is finally funded.  And Rep. Marjorie Taylor Greene has filed a motion to oust House Speaker Mike Johnson.  Should we be worried?

     The omnibus appropriations legislation is bad, but that was largely pre-ordained by the bad budget deal President Biden made with then-Speaker Kevin McCarthy to prevent a national default.  Within those constraints, the final deal is about what one might expect. 

     The final appropriations bills – this one and the one enacted earlier this month – are much closer to the bipartisan Senate appropriations bills than to the extreme measures House Republicans proposed, and occasionally managed to pass, through their chamber.  But this is precisely because the Senate wrote its bills to be plausible and the House wrote its bills to gesture to numerous special interests and ideological fringe groups. 

     Far right (and far left) activists doggedly insist that moving their starting position in negotiations farther in their direction will pull the final compromise in that direction, too.  That can be true under some circumstances, but only to a degree.  Past a certain point, a position comes to be seen as unserious and has no impact at all on the negotiations.

Balkinization Symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Rick Hasen's new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Michael Waldman, Expanding Our Constitutional Imagination

3. Emily Rong Zhang, Give us (a lasting consensus on really protecting) the Right to Vote!

4. Bruce E. Cain, Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

5. Alex Keyssar, That Little Omission in the Constitution

6. Wilfred U. Codrington III, A [More] Real Right to Vote?

7. Sanford Levinson, Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

8 .Derek T. Muller, Some skepticism about (and some promise for) a constitutional right to vote

9. Dan Tokaji, Dare to Dream

10. Richard L. Hasen, A Surreal Right to Vote: Responding to the Balkinization Symposium

Who will own DJT?

Joseph Fishkin

Comstockery in the Court and on the Campaign

Guest Blogger

A Surreal Right to Vote: Responding to the Balkinization Symposium

Guest Blogger

Dare to Dream

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2023).

Dan Tokaji

This is my quest to follow that star
No matter how hopeless, no matter how far . . .

And the world will be better for this . . .

“The Impossible Dream,” as sung by Don Quixote in Man of La Mancha

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act.

Some skepticism about (and some promise for) a constitutional right to vote

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Derek T. Muller

The right to vote is a fundamental right, one belonging to the citizens of all free governments. So who could possibly oppose an amendment to the United States Constitution enshrining that right?

I suppose I do, but for what I think are some eminently practical reasons.

Professor Rick Hasen’s A Real Right to Vote opens with some indisputable and important truths about elections in the United States. We have seen a dramatic expansion of enfranchisement in the United States. Much of that is thanks to the political process, from constitutional amendments guaranteeing that the right to vote shall not be denied or abridged on account of race or sex, among other protected characteristics. Congressional legislation, most notably the Voting Rights Act, helped give effect to important constitutional guarantees. And there are perhaps more opportunities and flexibility to vote in the United States in the twenty-first century than ever before.

But there has not been an affirmative right to vote in the Constitution (at least, of the kind Professor Hasen desires to see) for quite some time. So, why now? Three practical reasons stand out.