Tennessee-based policy analyst Justin Hayes is writing a series of articles in which he "aim[s] to explore issues that could have broader appeal among the left, right, libertarians, and centrists on multiple fronts — from economic and philosophical perspectives to constitutional considerations and beyond." The first piece in the series focuses on the issue of exclusionary zoning:
As the U.S. grapples with a deepening affordable housing crisis, YIMBY (Yes-In-My-Backyard) Groups have sprouted around the country to advocate for major reforms to the exclusionary zoning practices prevalent in most major cities. These zoning policies often prioritize single-family homes and hinder the construction of more affordable housing options for low- and middle-income residents. A 2022 paper by Jonathan Levine describes the YIMBY movement as "a loose and shifting pro-housing alliance of renters, progressives, and libertarians who hold that exclusionary land-use policies in urban and suburban areas exacerbate housing unaffordability and racial segregation and increase long-distance commuting and greenhouse-gas emissions."
These coalitions primarily focus on zoning reform within local or metropolitan jurisdictions, where traditional party and ideological lines blur, and national culture wars have a limited reach, allowing people from diverse political backgrounds to unite in this cause. After all, the YIMBY movement's overarching goal—to create an affordable place for everyone to live — is challenging to argue against, regardless of one's ideological perspective.
However, despite the undeniable merits of ending exclusionary zoning, the path forward has not been so simple. Misconceptions about increasing housing density persist and surface at zoning hearings in nearly every city, voiced by concerned residents and NIMBY (Not-In-My-Backyard) groups. Their concerns range from traffic congestion to potential overcrowding in schools and the perceived threats of crime to "community character."
Hayes goes through a list of reasons why conservatives, libertarians, and progressives all have good reason to support the YIMBY cause. He also addresses a number of common objections.
I have made similar arguments myself (including some focusing on the cross-ideological nature of the issue), and Hayes cites some of my previous writings on this topic. So too have others, such as Richard Kahlenberg. But Hayes piece is nonetheless a very helpful summary of the case from the standpoint of each of these three major ideologies.
I would add a few points to his analysis. For libertarians, it's important to emphasize not only that zoning restricts property rights, but that it is the most widespread and severe restriction on property owners' rights in the United States today, preventing millions from using their land as they wish. For progressives, I would emphasize the long history of zoning as a tool of racial and ethnic exclusion - often deliberately used for that purpose. To this day, zoning restrictions disproportionately harm blacks and Hispanics.
Finally, for conservatives, I would emphasize that reducing exclusionary zoning would greatly help the working class, including the white working class whom the GOP claims to champion (and who are increasingly that party's biggest constituency). It would do so both by enabling more working-class people to "move to opportunity" and by stimulating a vast construction boom that would create many thousands of relatively well-paying working-class jobs. As I have long emphasized, zoning reform is a major underappreciated common interest of the mostly Republican white working class and its mostly Democratic minority counterpart.
For those particularly concerned - as many conservatives are - about expanding opportunities for working-class men, I would make the obvious point that construction workers are disproportionately male (almost 94%, according to the Construction Employers Association). But expanding job opportunities in this way would also help many working and lower-middle class women, albeit less directly. They, like men, benefit from being able to move to opportunity. Plus, increasing opportunity for male construction workers pretty obviously benefits their female wives and daughters, and improves the potential marriage market for single working-class women. If you care about family values, the latter is an important consideration in an age where working-class marriage rates have plummeted.
Much more can be said. And I have in fact said more in previous publications, and hope to write more in the future. In the meantime, Hayes' article is a very helpful introduction to the subject, covering a wide range of perspectives and issues. I also look forward to his analysis of the other issues he plans to cover in his series on cross-ideological common ground.
After a month-long hiatus, Dan Epps and I have posted a new, 2-hour-long podcast episode: My Despised World (Dan came up with the title.) Most of it discusses two of June's jurisdictional decisions -- Mallory v. Norfolk Southern Railway, and United States v. Texas -- with a shorter discussion of the affirmative action cases (see here for my earlier post on those).
But first we discuss this AP story about Justice Sotomayor's book business, and speculate fervently about whether Justice Sotomayor physically signs all of the "signed" copies of her books herself, and if so, how she found the time to sign 11,000 copies for a single appearance at Michigan State. Further speculation welcome!
From Wade v. Univ. of Michigan, decided yesterday by the Michigan Court of Appeals (Judges Mark Cavanagh and Deborah Servitto); the ban covered all university property, which I take it includes dorms and open spaces:
In Bruen, the Court stated that it was "settled" that arms carrying could be prohibited consistent with the Second Amendment in locations that are "sensitive places." The Court explained that, although the historical record showed relatively few 18th and 19th century "sensitive places," such as legislative assemblies, polling places, and courthouses, there was no dispute regarding the lawfulness of prohibitions on carrying firearms in sensitive places such as schools and government buildings. The Court's statements indicate that, even though 18th and 19th century "sensitive places" were limited to legislative assemblies, polling places, and courthouses, laws prohibiting firearms in schools and other government buildings are nonetheless consistent with the Second Amendment. Thus, if the University is a school or government building, then Article X does not violate the Second Amendment….
Samuel Johnson's dictionary from 1773 defines "school," in part, as: "A house of discipline and instruction[,]" and "[a] place of literary education; an university." It defines "university" as "[a] school, where all the arts and faculties are taught and studied." Thus, considering either time period, the term "school" included universities.
Notably, the reference to "schools" being sensitive places was first made by Justice Scalia in Heller. In discussing the "longstanding" tradition of laws forbidding firearms in sensitive places such as "schools and government buildings," Justice Scalia did not define the term "school," nor did he cite or rely on any authority. Given that the term "school" is not found in the Second Amendment, but was first used by Justice Scalia, it is not clear that either 1791 or 1868 are the correct time periods to determine the meaning of that term as used in Heller. Nonetheless, the plain meaning of "school" when Justice Scalia used the term in 2008 similarly includes universities….
New on the Short Circuit Podcast: A big victory (in an IJ case) for economic liberty under state constitutions. We unlatch Georgia's now-former lactation consultant license. Read More
The Chicago Tribune has an article describing how asylum-seeking migrants in the city are unable to support themselves, even as many employers in the city are desperate for workers. The article describes the sad situation of Venezuelans who fled socialism only to find themselves legally barred from working in the Land of the Free. There is a similar situation in New York City and elsewhere. The City struggles to accommodate asylum seekers who cannot support themselves, even as it also suffers from a major labor shortage.
Migrants seeking asylum can legally enter the US and then wait to have their claims adjudicated, which can take many months or even years. Meanwhile federal law prevents them from working for at least six months, and often even longer:
[Asylum] allows people to stay in the United States instead of being deported to a country where they fear persecution or harm. But those people must apply for asylum. If the government grants them that status, they get protection and the legal right to stay in the United States.
One challenge they face, however, is that the federal government requires applicants to wait 180 days or roughly six months before they are legally allowed to work, and they must apply for that permission to work, which is called "work authorization." Furthermore, that 180-day clock doesn't start until the government receives the first application.
In addition, the USCIS is struggling to process the initial asylum applications. US Customs and Immigration Services is supposed to process the asylum application within 30 days, but it often takes much longer.
During this lengthy period when they are ineligible to work legally, asylum seekers have little choice but to rely on some combination of public assistance, charity, and precarious illegal employment. Ironically, this state of affairs allows immigration restrictionists to depict these migrants as a burden and crow over how liberal jurisdictions like NYC have trouble accommodating them. But the migrants are only a burden because they are legally barred from working to support themselves. You too would likely be a burden to society if the federal government forbade employers from hiring you!
There is an obvious solution to this problem: Let asylum seekers work legally immediately upon entering the United States. Doing so would be good for the migrants, enabling them to support themselves and their families. It would also benefit the US economy, particularly areas with major labor shortages. And it would alleviate burdens on local governments. Indeed, the latter would actually benefit from the extra tax revenue and economic growth generated by additional workers.
Maine GOP Senator Susan Collins and independents Angus King and Kyrsten Sinema have drafted the Asylum Work Authorization Act, a bill that would cut the work authorization time to 30 days. Sadly, I am not optimistic it will pass.
In the meantime, however, expanding work eligibility for asylum seekers should be a relative no-brainer. It should not be hard to see that it's better if these people who entered the US legally can also support themselves legally, while they are here.
Prof. Howard Friedman (Religion Clause) reports (some punctuation revised):
In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case.
State Attorney General Andrew Bailey—a gubernatorial appointee in Missouri— contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate. Bailey, an abortion opponent, contended that, if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.
From the opinion:
This case is not about the substance of Fitz-James's proposed initiatives petitions, nor is it about the fiscal impact of those proposals. Rather, this case is about which state official is authorized to estimate and summarize that fiscal impact. Section 116.175 unequivocally answers this question. It is the Auditor, and not the Attorney General, who bears this responsibility. The Attorney General's narrow authority to approve the "legal content and form" of the fiscal note summaries cannot be used as a means of usurping the Auditor's broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary….
From Chief Judge Michael Urbanski's opinion today in Doe v. Kuhn (W.D. Va.), the allegations from the Complaint:
John Doe was recruited to play baseball for Radford University … by Radford's former baseball coach, Joe Raccuia, who was replaced by Kuhn prior to Doe's matriculation. Doe found many of Kuhn's actions objectionable, such as: grouping the lockers of minority players, such as Doe, together; informing all players that they were required to stand during the national anthem in order to remain in good standing; directing only the players of color to get haircuts prior to team pictures; prohibiting players from attending a racial justice rally on campus; referring to an Asian American player on the team as "Kim Chi," rather than by his name; and assisting white players in finding summer league placements, but not assisting Doe. Kuhn did not play Doe in any baseball games during the 2020-2021 season.
Doe was directed to inform Kuhn of his ongoing mental health concerns and believed Kuhn responded inappropriately to his disclosure. Doe then reported this and the previous incidents to Radford's athletic department. Kuhn subsequently asked Doe whether Doe had lodged a complaint against him. When Doe's parents became involved, Kuhn urged them to disenroll Doe from Radford and stated, in front of others, that "these parents want me fired." Several days later, Kuhn took the players out of earshot of other athletic staff members to "curse them out."
Despite assurance from Radford's athletic director that Doe would not face retaliation for raising concerns about Kuhn, Doe was taken off the active lineup, prohibited from participating in live at-back [sic] practice, and prevented from traveling with the team.
My lecture is about textualism's political morality. Let me begin with a parable, courtesy of David Foster Wallace:
There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, "Morning, boys. How's the water?"
And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, "What the hell is water?"
Today I'd like to talk about the "water" that textualists, perhaps unconsciously, swim in.
Specifically, my lecture will explore the political morality that undergirds and informs a textualist approach to statutory interpretation. I will endeavor to explain why formal approaches to legal interpretation, such as textualism, are an outgrowth of political morality and how they carry political morality into practice.
This way of thinking about textualism may seem surprising. After all, textualism is a kind of formalism, and it generally draws a sharp line between the law's objective meaning and the judge's moral preferences. Textualists hold fast to the principle that the law is the words enacted by the people's democratically elected representatives. It follows that in deciding individual cases, judges must give effect to the law as it is, not as they believe it should be. This textualist approach is often juxtaposed with methods of interpretation that rely on the judge's abstract normative values about justice or fairness or that seek to update statutes in accordance with evolving social or political norms. I am wholeheartedly on the textualist side of these debates.
But the familiar defense of textualism sells it short. This lecture aims to identify the rich moral foundations of a text-based approach to interpreting statutes.
I want to make two basic points. First, I want to defend textualism from the vantage point of political morality. Properly understood, textualism follows naturally from the moral commitments at the heart of our constitutional system of government.
Understanding textualism from this perspective is especially timely in light of recent criticisms of formal, text-based methods of interpretation. For instance, a wave of post-liberal scholars, such as Adrian Vermeule, have suggested that laws should be interpreted to promote the "common good." They claim textualism is inadequate because it is indifferent to this common good. But this isn't really a new criticism. Rather, it merely reflects the familiar view that judges should give effect to certain substantive values, values that exist independently of the law. There are many variants of this view, but to name just a few: Ronald Dworkin argued that judges should act as philosophers, promoting justice understood in an abstract way; William Eskridge has argued that statutes must be interpreted dynamically, in light of contemporary social and moral norms; and Judge Posner maintained that judges must interpret statutes pragmatically, to promote efficient outcomes.
In short, although the critics of textualism past and present disagree about the right yardstick, they all argue that judges should interpret statutes in light of principles found outside the law. They maintain that such principles will lead to "better" results than simply following the text.
But textualism isn't empty of moral content, as some of its critics would suggest. Rather, textualism is rooted in a distinctive moral commitment—a commitment to be governed by positive laws, namely the Constitution and statutes lawfully enacted by the people's representatives. We live under the rule of law, not the rule of men. The Constitution is the result of a reasoned moral choice that a society governed by law is best for social flourishing and is therefore worth defending.
My second point is that statutes are enacted within a legal tradition that subsumes political morality. Our mature and sophisticated legal tradition is built on principles of natural law, common law, and concepts rooted in the Roman law. In determining the meaning of a statute, textualists may rightly turn to these legal sources for guidance. Interpreting statutes within our legal context is part of exercising the Article III "judicial Power."
Seen this way, textualists aren't indifferent to political morality in interpretation; they simply recognize that our legal tradition has translated and disciplined principles of political morality into postulates of law. A faithful textualist, therefore, must grapple not only with the words on the page, but also with the meaning of those words in the context of our legal traditions.
Those are my two basic points: fidelity to positive law is a profound moral choice, one that Americans made when ratifying the Constitution. And textualism, properly understood, incorporates fundamental principles drawn from our legal customs and foundations.
Last week, I wrote about the apparent efforts to make the NextGen Bar Exam far simpler that the current exam. I received an email from a person who worked as a state board of law examiners. With permission, I reproduce the email, stripping any reference to the person's state.
I was an Assistant to the *** Board of Law Examiners when the *** Supreme Court decided to adopt the UBE [Uniform Bar Exam]. The sales pitch for the UBE from the NCBE, as presented to the group of assistant bar examiners I was among, was threefold. First, it won't be any worse that the current bar exam. Second, it will be better for the applicants because they will have more flexibility in deciding to which state they should move. Third, everybody else is doing it. None of those explanations supports such a dramatic change in public policy as the adoption of the UBE and the abandonment of a state-specific essay test. For my part, I asked two questions: If the UBE is not an affirmative improvement over the status quo, why should we change? Why should the *** Supreme Court elevate the applicants' interests in residential flexibility over ensuring that ***'s new lawyers have demonstrated some level of competence in *** law? I did not receive satisfactory answers to either question. The Board and the other assistants seemed inclined to blindly defer to the so-called expertise of the NCBE and generally unwilling to consider the consequences of the policy change.
In the years leading up to that travesty, we, the assistants, received annual training from NCBE [National Conference of Bar Examiners] on how to write an essay question. The sum total of that training was that we should avoid anything that would make the essay difficult. They trained us to avoid including multiple issues in a single question and to avoid complex factual scenarios. The Board and the Assistants applied strict scrutiny to each essay question, eliminating anything that would actually test the applicants' ability to see fine-line distinctions and discern issue-critical facts. As a result, the essay questions that I wrote for the bar exam bore only passing resemblance to the essay questions that I answered *** years earlier. When the question of adopting the UBE came up, I opposed it because it represented the elimination of the requirement that newly licensed lawyers in *** begin with a base level of understanding of *** law. The Board and the NCBE representative explained that memorization of basic legal principles was no longer necessary because, in practice, lawyers look things up in a book or on Westlaw anyway. To that, I asked if the test shouldn't be an open book test or if we shouldn't just revert to diploma privileges. What is the purpose of a test, if it does not require its takers to demonstrate mastery of the subject matter? The only response was that only minimal competence is required. But the couldn't define what that was, except to say minimal competence is minimal competence.
In my view, the UBE, and the *** Supreme Court through its adoption, dropped the standard of "minimal competence" to an alarming level. I could not, in good conscience, continue to serve and resigned. The NextGen Bar Exam represents the complete abandonment of competence as a standard. I sincerely hope that the *** Supreme Court does not adopt it. Unfortunately, they will probably blindly defer to the "experts" at the NCBE.
Even since *** adopted the UBE, I have been hoping that it would not prove to be the disaster for professional competence that I feared it would. And while the jury is still out on that point, the NCBE now wants to do away with any testing of the applicants' abilities to apply the facts to the law. Any state that adopts the NextGen bar exam will have abandoned its professional obligation to ensure that new lawyers are minimally competent.
More state supreme courts should take a pause before stumbling down this road.
Harvard law Prof. Mark Tushnet and political scientist Aaron Belkin urge President Biden to disobey "gravely mistaken" Supreme Court rulings. Doing so would set a dangerous precedent likely to be abused by the right, as well as the left.
In an open letter to the Biden Administration, Harvard law professor Mark Tushnet and University of San Francisco political scientist Aaron Belkin urge President Biden to disobey "high-stakes" "MAGA" Supreme Court rulings he considers to be seriously wrong:
We have worked diligently over the past five years to advocate Supreme Court expansion as a necessary strategy for restoring democracy. Although we continue to support expansion, the threat that MAGA justices pose is so extreme that reforms that do not require Congressional approval are needed at this time, and advocates and experts should encourage President Biden to take immediate action to limit the damage.
The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court's interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President's interpretation, they can express their views at the ballot box.
We urge President Biden to restrain MAGA justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations….
We do not believe that President Biden should simply ignore every MAGA ruling. The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration's constitutional interpretations would substantially mitigate the damage posed by the ruling in question.
Such actions could help contain the grave threat posed by MAGA justices. For example, President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong….
As Nikolas Bowie has demonstrated, treating the Supreme Court as the sole source of constitutional interpretations is antithetical to American democracy, as the Supreme Court has spent most of its history wielding "an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status." In this particular historical moment, MAGA justices pose a grave threat to our most fundamental commitments because they rule consistently to undermine democracy and to curtail fundamental rights, and because many of their rulings are based on misleading and untrue claims.
Much of the commentary on the Tushnet-Belkin letter focuses on the passage urging Biden to (in most contexts) ignore the Supreme Court's recent ruling against the use of racial preferences. Critics point out that the affirmative action decision is actually highly popular, with 52% of Americans supporting it and only 32% opposed. Other surveys find even broader opposition to affirmative action.
Traditionally, popular constitutionalist theory holds that social movements that win broad public support should be empowered to influence and control constitutional interpretation. Longstanding widespread public opposition to racial preferences fits that bill. If Biden were to take Tushnet and Belkin's advice on this particular point, he would actually be promoting an unpopular position held by some political elites at the expense of that supported by a large majority of the public.
I should emphasize that I myself am not a popular constitutionalist. Thus, I do not claim that the popularity of the Court's ruling against affirmative action proves the decision was correct. But consistent popular constitutionalists should welcome this particular result. It's a case where the Court enabled a large popular majority to prevail over the entrenched resistance of elites.
In any event, the flaws in Tushnet and Belkin's argument go far beyond their take on this particular ruling. The course of action they advocate would effectively destroy judicial review. While they urge Biden to disobey Supreme Court decisions only when it comes to "high-stakes rulings that are based on gravely mistaken constitutional interpretations," political partisans will predictably make such claims about every decision they strongly disapprove of. And if one president successfully gets away with defying court decisions, he and his successors are likely to use this tactic whenever they think it politically advantageous to do so. The net effect will be the gutting of judicial review, at least on issues important to the party in power.
Even if you trust Biden to scrupulously differentiate "high-stakes" cases from ordinary ones, and "grave" errors from normal mistakes, I suspect you do not have similar confidence in Donald Trump, or whoever the next GOP president might be.
Tushnet and Belkin acknowledge that their proposal is not "risk-free," because "future GOP administrations would cite it as precedent for ignoring federal courts." But they then minimize this danger because "Republican presidents might well ignore federal courts regardless of what President Biden does," citing the GOP's "failure to hold President Trump accountable for inciting a violent coup."
It is certainly true that Trump - and possibly other future GOP presidents - might use these types of tactics. But they are far more likely to get away with it if Biden sets a precedent for how it can be done. It's worth noting that Trump ultimately failed in his efforts to circumvent court decisions holding that he lost the 2020 election. That's in part because of the continuing strength of the norm against such defiance. If a Democratic president successfully undermines that norm, Trump (or another right-wing authoritarian) can follow the same playbook.
Standard slippery-slope concerns about court-packing apply here, as well. Indeed, executive defiance of court rulings is an even slipperier slope than court-packing because it can be undertaken by the president alone, without the need for new legislation enacted by both houses of Congress. That makes it an even more attractive tool for a would-be strongman.
Undermining judicial review is a standard tactic of incipient illiberal authoritarians, who seek to concentrate power in the executive. American progressives readily see this when it comes to countries like Russia, Turkey, Hungary, and - most recently - Israel. The point applies here at home, too. If you think Trump and other Republicans pose a grave danger to liberal democracy, you should be wary of dismantling one of the major institutions standing in their way. Imagine, for example, if Trump had been able to successfully resist judicial rulings against his efforts to overturn the 2020 election.
Tushnet and Belkin's references to "MAGA justices" are presumably meant to associate the Supreme Court with Donald Trump's illiberal and anti-democratic tendencies. The MAGA turn has indeed shifted the GOP on major issues, such as immigration, trade, government spending, and others. These changes are among the reasons why I voted for Hillary Clinton in 2016 and Biden in 2020, despite many reservations about the Democratic Party. And Trump has attacked basic liberal democratic norms far more than any other modern president.
But there is little, if any, distinctive "MAGA" or Trumpist element to the recent Supreme Court rulings that most incense progressives. Abortion, affirmative action, gun rights, the powers of administrative agencies, and conflicts between free speech and antidiscrimination law have been points of contention between left and right for many years.
When more distinctively MAGA claims have come before the Supreme Supreme Court, the justices (and conservative lower court judges) have largely rejected them. For example, the Court recently decisively repudiated the "independent state legislature" theory, which Trumpists advanced as a tool to enable Republican state legislatures to reverse election results they oppose. Conservative judges, including at the Supreme Court, have mostly been skeptical of new state laws trying to force social media providers to platform right-wing speakers they would prefer to exclude. The Supreme Court has twice turned back red states efforts to force Biden to crack down on immigration. In 2018, all five conservative justices then on the Court backed a key federalism decision whose predictable (and predicted) main effect has been to protect immigration sanctuary jurisdictions. Perhaps most important, conservative judges on both lower courts and the Supreme Court rejected Trump's efforts to overturn the result of the 2020 election.
The conservative justices did vote to uphold Trump's anti-Muslim travel ban, a terrible ruling I have severely criticized. But even that decision was not simply a radical Trumpist departure from previous doctrine. It built on longstanding, though badly flawed, precedents applying lower scrutiny to immigration restrictions than other exercises of government power that might violate constitutional rights.
The Tushnet-Belkin theory, therefore, is not confined to distinctively MAGA rulings. It implies that presidents should be able to ignore a wide range of right-of-center judicial decisions, including those rooted in longstanding mainstream constitutional theories. And, obviously, presidents with a right-wing ideological orientation can use similar reasoning to justify defying even the most mainstream left-wing judicial decisions.
Finally, it's worth noting that many left-wing objections to recent Supreme Court decisions - most notably when it comes to abortion and the travel ban case - are about situations where the Court refused to enforce rights against the political branches. If the institution of judicial review is preserved, these rulings could well be overturned or at least narrowed by future, more liberal, courts. But if that institution is destroyed, then these rights - and every other right - will be forever left to the mercy of the political process, including any right-wing populists who might occupy the White House and other positions of power in the future. They will be more than happy to cite "popular constitutionalism" as a justification for whatever they do.
If you believe destroying judicial review is a feature rather than a bug, then the Tushnet-Belkin proposal is as good a way to do it as any (assuming the president who implements it gets away with it). Tushnet himself is a longtime advocate of "taking the Constitution away from the courts," and deserves credit for consistency. But we should not be under any illusion that the course of action he and Belkin recommend can be just a limited response to a subset of particularly egregious Supreme Court decisions.
Here is an excerpt of the job announcement; the Director of Legal Affairs there is Wen Fa, formerly of the Pacific Legal Foundation:
The Beacon Center is Tennessee's premier free market public policy organization and public interest law firm. Beacon is pound for pound the most effective and efficient state-level think tank on the planet. With a staff of just 13, Beacon has achieved remarkable policy and legal victories that have empowered Tennesseans to reclaim and protect their freedoms. Among our accomplishments, we have:
The case is Schrader v. District Attorney, decided yesterday by the Third Circuit (in an opinion by Judge Stephanos Bibas, joined by Judges Patty Shwartz and Julio Fuentes). First, what I think is the heart of the First Amendment argument:
The DA could have gotten a protective order stopping Bowie from sharing the discovery documents before he did so. Instead, the DA got a protective order only after Bowie had shared them. When "the government has failed to police itself in disseminating information," prosecuting someone who later publishes that information "can hardly be said to be a narrowly tailored means of safeguarding" confidentiality.
And now a longer excerpt:
Child-abuse information matters to both victims and the public. The government encourages victims to report abuse by keeping their information private. But the public has a strong interest in holding the government accountable for how it confronts this serious crime. So once this information enters the public domain, the government can rarely claw it back.
Victoria Schrader wants to use documents released by the government to criticize it for how it handled her grandson's life and untimely death. Yet she worries that Pennsylvania officials will use Pennsylvania law to punish her for doing so. Because the First Amendment protects her criticism, the District Court properly enjoined the officials from prosecuting her. But because one of her alleged injuries is too speculative, we will vacate the injunction with instructions to narrow it.
[I.] INVESTIGATING A TODDLER'S DEATH
Dante Mullinix died when he was only two. (Because the District Court used Dante's full name throughout its opinion and order, and Dante is no longer with us, we will too.) Before he died, his aunt, Sarah Mercado, thought he had been in danger. So she filed a report with the York County Office of Children and Youth Services, imploring them to protect him. Her report led Youth Services to investigate Dante's welfare. But that investigation would not save him.
Tyree Bowie, who was dating Dante's mother, was charged with murdering him. In criminal discovery, Bowie got documents from the Youth Services investigation that were stored in a statewide database. He passed them along to Mercado, who believed he was innocent. Mercado wanted to advocate Bowie's innocence and blame Youth Services for failing to protect her nephew. So she started a Facebook group called "Justice for Dante" and posted some of the documents to the group. Bowie was eventually acquitted.
From his opinion yesterday in Bert Co. v. Turk (and see here how he applies this to the particular issue involved in that case, which is federal constitutional limits on state punitive damages awards); the opinion cites our own Randy Barnett many times:
[I.] The United States Constitution protects unenumerated rights. The infirmity of the Supreme Court's precedent that governs the disposition of today's case, however, reinforces widely held doubts that the Due Process Clause—in its "substantive" guises—was ever the proper constitutional anchor for the identification of these rights. Two provisions of the United States Constitution stand out as far likelier guarantees of Americans' unenumerated rights: the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. Both of these fundamental mandates provide straightforward and textual paths to the recognition and protection of unenumerated rights. Oddly and maddeningly, both provisions have languished in obscurity within the pages of the Supreme Court's jurisprudence, while the Court has opted instead to venture further and further down the oxymoronic path of "substantive due process."
If protection from "excessive" punitive damage awards in state courts is properly a matter of federal constitutional concern (and that is a very big "if"), the Supreme Court should provide an intellectually rigorous and disciplined justification for this protection as an unenumerated right grounded either in the Privileges or Immunities Clause or in the Ninth Amendment. Substantive due process is an inappropriate tool for federal oversight of state court punitive damage awards….
… While I have significant doubts about much of the jurisprudence that controls the present inquiry and that assigns punitive damage awards a federal "constitutional status," the Majority has correctly and faithfully applied the standards (such as they are) set forth by the Supreme Court of the United States.
I write separately because the current state of Supreme Court precedent forces courts to engage in analytical exercises that lack sufficient clarity. Future litigants would be wise to seek more useful guidance from the Court and perhaps a complete unshackling of punitive damage awards from the artificial constraints placed upon them by that Court's bewildering substantive due process jurisprudence.
The imposition and limitation of punitive damage awards traditionally were considered matters of state law concern, in deference to our common law heritage and to American principles of federalism. Nonetheless, and in derogation of this tradition, in recent decades the Supreme Court has declared that the Due Process Clause of the Fourteenth Amendment to the United States Constitution places "procedural and substantive constitutional limitations on these awards" and "prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor."
The analysis that courts are now required to conduct in order to detect the federal constitutional borderline—a line often and erroneously distilled as a 10:1 ratio rule comparing punitive to compensatory damages—is riddled with caveats, qualifiers, and porous "guideposts" which render that analysis nearly incapable of principled application to concrete cases. Moreover, the Supreme Court's jurisprudence has exposed in sharp relief the flaws and fault lines embedded in the underlying doctrine that itself brought punitive damages into the realm of federal constitutional adjudication: the judicially-manufactured doctrine of "substantive due process."
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