BASIC RIGHTS AND INITIATIVE PETITION 23-07: ARE THE PREBORN “NATURAL PERSONS” UNDER THE FLORIDA CONSTITUTION? – David H. Thompson

Posted by mmullin on Mar 15, 2024 in Per Curiam

Basic Rights and Initiative Petition 23-07: Are the Preborn “Natural Persons” Under the Florida Constitution?

David H. Thompson*

An initiative petition entitled “Amendment to Limit Government Interference with Abortion” has been circulating in Florida since May 2023. The proposed amendment, which would effectively ban pro-life legislation, recently garnered enough signatures to trigger review by the Florida Supreme Court. At oral argument, Florida’s Chief Justice asked whether an unborn child is covered by the basic equality provision of the Florida Constitution, Article I, section 2. Neither the proponents nor the opponents of the initiative supplied a satisfying answer. A new article aims to address the Florida Chief Justice’s question and another question left unasked: whether preborn human beings are “persons” for purposes of Article I, section 9—the due process provision of the Florida Constitution.[1]

The article proceeds by examining the historical context and development of Florida’s basic equality and due process provisions, the former’s relationship to the “equality principle” articulated in the Declaration of Independence, transcripts and journals from the relevant constitutional conventions and Constitution Revision Commissions, contemporaneously enacted statutes, interpretive canons, and dictionary definitions from the years surrounding the Florida Constitution’s ratification.

Beginning with the plain text of Article I, section 2, the article explains that contemporaneous dictionaries from the time period when the Florida constitution was ratified define the terms “person” and “natural person” as any living human being. It next turns to context and history, which confirm that “natural persons” was understood to include every human being, including those in utero. The article traces the advent of the constitutional provision that eventually became Article I, section 2, pinpointing notable aspects of its drafting history. While “natural persons” replaced “all men” in 1968, the change was not intended or understood to affect the meaning of the section.

The article then stretches back further, grounding the provision ratified in 1968 in both the Founding and Reconstruction eras. It discusses that language’s relationship to the statement of equality in the Declaration of Independence, and the influence of debates over slavery on its terms. After a detailed discussion of this evidence, the section on historical context concludes that the delegates who gathered to ratify the Florida Constitution in Tallahassee in 1868—most of whom were freed slaves or Union army veterans—rejected anything less than complete equality of the races. The cornerstone of Florida’s new constitution was therefore a basic rights provision that used language that had been fully expounded over the previous half century in the courts, through the public discourse, and, ultimately, on the battlefield—language that could not have been understood but to embrace the entire human family.

The article next turns to the question left unasked by the Chief Justice of the Florida Supreme Court: whether the Due Process Provision of Article I, Section 9 also encompasses preborn children. This provision appears just a few sections after the basic rights provision of Article I, Section 2, and provides that “[n]o person shall be deprived of life, liberty, or property without due process of law.” The article finds solid grounding in text and historical context to conclude that whoever is a “natural person” in Article I, Section 2 is also a “person” for purposes of the Due Process Provision. This reading is bolstered by the fact that Florida courts have taken note of the “shared and overlapping history” between the basic equality and due process provisions in Article I, sections 2 and 9 and their analogues in the Fourteenth Amendment of the United States Constitution.

Because the article finds that Article I, Sections 2 and 9 of the Florida Constitution guarantee the rights to life, basic equality, and due process to all human beings, all that is left is to determine whether a preborn child is, in fact, a human being. Plenty of evidence suggests that the Floridians who drafted and ratified the basic equality and due process provisions understood that preborn children are among the “men” and “natural persons” endowed with inalienable rights. Notably, preborn life was regarded as inherently valuable under the common law’s criminal provisions. This tradition became echoed in statutes passed by the same Florida legislature that ratified the Fourteenth Amendment to the United States Constitution. Following the lead of other states, that legislature rapidly moved to criminalize conduct against pregnant mothers that also affects a child in utero. The trend continued in the years leading up to and including the year when Florida ratified the current version of Article I, Sections 2 and 9. All of these laws would have presumably been known to those who ratified the Constitutional provisions referencing “natural persons” and “person.”

After sifting through all these sources, the article concludes that when the Florida Constitution was ratified in 1968, the original public meaning of the words “natural person” and “person,” as used in Article I, sections 2 and 9, includes preborn children. Of course, this finding leads to the inescapable conclusion that the initiative petition cannot survive the Florida Supreme Court’s review. For it would be clearly invalid for failure to identify substantially affected provisions of the Constitution—i.e., Article I, sections 2 and 9. Under Florida law, ballot initiatives must disclose any “material effects” on other existing areas of the law. As such, any initiative that repeals or curtails another section of the constitution must say so in its ballot summary. More than that, though, any attempt to create a constitutional right to abortion would violate the Florida Constitution’s “single subject” rule by attempting to revoke multiple fundamental rights guaranteed by different sections of the Constitution. A long line of Florida Supreme Court precedent holds that such “cataclysmic” change may not be accomplished by initiative petition.

In sum, the key issue is what the people of Florida believed when the still-controlling language of sections 2 and 9 of Article I was drafted and ratified. The historical record is unequivocal: they believed that conception creates a legal “person” bearing an inalienable right to life and entitled to state protection from private violence. As the law stands, those wishing to write the preborn out of their charter may not do so by citizen initiative.

* Managing Partner, Cooper & Kirk PLLC.

[1] The full article is available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4753223.

BEYOND LAW? A SOCRATIC DIALOGUE INSPIRED BY BAUDE’S “BEYOND TEXTUALISM?” – Evan D. Bernick

Posted by mmullin on Mar 7, 2024 in Per Curiam

Beyond Law? A Socratic Dialogue Inspired by Baude’s “Beyond Textualism?”

Evan D. Bernick*

On February 27, 2023, Will Baude delivered the annual Scalia Lecture at Harvard Law School.[1] “Beyond Textualism?” invites legal conservatives to supplement textualism with a theory of law that includes unwritten as well as written rules. As Will concludes: “We sometimes need to use other legal rules, unwritten law, and doing so is completely consistent with the reasons that we use legal texts.”[2] Like all of Will’s work, it is engaging, incisive, and provocative, and it is shot through with characteristically Baudean (“Baudacious?”) themes.

The following is an imagined dialogue between Will and a hypothetical, reasonably well-informed textualist named John who wanders into Will’s office while Will is putting the finishing touches on the speech.[3] John’s function in this dialogue is to illustrate both the seriousness of Will’s provocation—the force of the challenge that it presents to textualism, as traditionally understood—and to raise normative questions that are left unanswered by the speech.

I.

John: I hear you’re giving the Scalia lecture at Harvard. That’s awesome! What are you going to talk about?

Will: Textualism. I’m going to make the case that it’s incomplete.

J: Provocative! I consider myself a textualist, but I’ll try to keep an open mind. What’s wrong with textualism?

W: Justice Scalia had good reasons to champion textualism, and textualism helped us to see useful and valid things. But standing alone, it doesn’t tell us what the law is. Hence, “incomplete,” not “wrong.”[4]

J: But … don’t textualists say that law just is … text?[5]

W: So textualists have said in their more ontologically extravagant moments. But the best reasons for textualism are positivism and formalism.[6]

J: Go on.

W: Textualism positions judges to enforce rules that they didn’t make up themselves. It also helps them avoid confusing the reasons or purposes of the rules they enforce with the rules themselves. But text isn’t always law and law isn’t always text. There’s other law out there.

J: OK, what kind of law?

W: Unwritten law.

J: And textualism helps us identify and follow the written law but not the unwritten law?

W: Yes.

J: But if we want to identify and follow all the law, we need something else.

W: Precisely.

J: Got it. So, textualism would still help us with the Eleventh Amendment. Which says that states are immune from suit in federal courts by citizens of other states.[7] That means the Court was wrong to hold that they’re also immune from suit by their own citizens, right?[8] Because the text doesn’t say that?

W: Well, no. Sovereign immunity is unwritten law. So even though the text of the Eleventh Amendment refers to only one kind of sovereign immunity, the Supreme Court’s cases recognizing other kinds are consistent with the unwritten law. And so, they’re lawful.[9]

J: Interesting. Now I’m thinking about Section 1983, which authorizes civil suits against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”[10] Nothing in the statutory text about immunities. But might unwritten law support the Supreme Court’s qualified immunity decisions?[11]

W: Well, in principle it might, but it doesn’t. I’ve shown that there was no such unwritten law of qualified immunity.[12] So the text of Section 1983 means what it says—no qualified immunity—and there’s nothing else that says otherwise.

J: Hmm. OK. Suppose we have a statute. Looking only to its ordinary meaning, it’s clear. Can we stop, or do we have to think about what Justice Scalia called dice-loading[13] “substantive” canons that promote extratextual values—like the rule of lenity[14] and maybe the Indian canons[15] and the major-questions doctrine?[16] Even against the most natural reading of the statute?

W: It depends.

J: On what?

W: The law. Linguistic and substantive canons can both be law.

J: Even the one that tells judges to avoid absurd results?![17]

W: Yes, in principle.

J: Wow. What about natural law? Can we at least keep that out? It seems like it’s just an invitation for judges to make law in accordance with their moral principles.

W: No. Well, sort of. Our legal traditions incorporate natural-law principles via positive law, both written and unwritten. So, judges can’t just rely on their moral principles. But it doesn’t follow that our law must be moral-principle free.[18]

J: So, if we want to follow the law, that doesn’t necessarily or even presumptively mean following text. And linguistic canons don’t have any priority over substantive canons. And … wait, what about legislative history?[19] We can at least get rid of that, right?

W: No.[20] Well, it depends on the law.

II.

J: This is provocative indeed. But I’m with you. I have another question.

W: I may have an answer. But we seem to have gathered a crowd, and the hour is becoming late. Perhaps we should put it to them whether to continue.

Enthusiastic applause, cheers, and whistles ensue from a crowd that has gathered around WILL’s office. However, one figure, who has been staring intensely at WILL behind a pair of thick eyeglasses, abstains from applauding. He is clad in a robe, wears an intimidating beard, and is carrying a well-worn antitrust casebook. Unable to contain himself any longer, he steps forward. This is FRANK.

Frank: I heard what you’ve been saying.  I was there when textualism began. It would not be too much to say that I began it.[21]

J & W: For which we are grateful.

F: The claim that you call “ontologically extravagant”—that text and only text is law—was and is essential to textualism. It is the major premise of my argument that use of legislative history is illegitimate. To quote myself: “What the Constitution requires for legislation is concurrent, bicameral enactments by the legislature and signature by the President. Legislative history flunks the bicameralism requirement; neither house of Congress actually votes on it.”[22]

W: May I ask you a question…

F: Frank.

W: Frank. Have you ever acted lawlessly?

F: No.

W: Never?

F: Never.

W: Have you not gone beyond the statutory text in interpreting, say, the Sherman Antitrust Act? Which, by its terms, prohibits vertical agreements “in restraint of trade,”[23] but which you have interpreted to prohibit… less than that?[24]

F: That is not the “gotcha” that you think it is. I have not. “The statute books are full of laws, of which the Sherman Act is a good example, that effectively authorize courts to create new lines of law.”[25]

W: Does the text say that? Does it have a “delegation to judges to develop new law” clause?

F: Well, no.

W: Have you used canons of construction that don’t appear in any text?

F: I use those canons to determine the meaning of the law—which is to say, the text, at least if we’re talking about legislation. And many of them—the linguistic canons—are just applications of ordinary English grammar and syntax.[26] I don’t really need a text to tell me to give words their ordinary, conventional meaning or to interpret words in a list as if they have something in common.

W: But some canons don’t even arguably do that. The rule of lenity, for instance. It tells you to depart from the ordinary meaning of statutory text for the benefit of criminal defendants.

F: And the rule of lenity applies only when the text is ambiguous.[27] I do not use the rule of lenity to overcome clear text.[28]

W: But do you consider the use of the rule lawless?

F: Not as such.

W: Is it in any text?

F: It is not.

W: And you are a textualist.

F: By Zeus, yes.

W: And you have never acted lawlessly.

F: By Zeus, no.

W: Then it is not essential to textualism that law consist only in text.

FRANK does not agree to this easily. But he sees the point, nods, and steps back into the crowd. 

III.

J: That was pretty cool. Frank seems… well, not pleased, but satisfied.

W: Thanks. We’re both Chicago guys.

J: Of course. You talk about law a lot.

W: Yes.[29]

J: I understand that you’re a positivist. Can you say more about that?

W: Yes. Positivists hold that law is grounded in facts about a particular society.[30] As I put it in the speech, “[J]udges are supposed to follow external sources of law rather than treat jurisdiction as necessarily giving them the power to make decisions in their own discretion.”[31]

J:  I agree. But I know some non-positivists.

W: Me, too.[32]

J: They criticize textualism as a form of positivism and criticize positivism because it’s mistaken about the nature of law. They say that you can’t determine what the law is without moral reasoning.[33]

W: Yes.

J: And they also say that it can’t support any moral obligation to follow the law. If the law is what positivists say it is, very unjust law is possible.[34]

W: Yes.

J: Would you say that it would be good to go beyond textualism? That we ought to do it?

W: I’m very careful with my language. “If we are going to continue to honor the basic structure of our government and of our own legal order, we are sometimes going to need to think more deeply about the jurisprudential insights that underlie textualism.”[35]

J: If.

W: Then: “[Textualism] needs to be supplemented with attention to our entire legal framework because our legal system relies not just on written texts but also on an unwritten law.”[36]

J: I have one more question.

W: Please.

J: Why should we honor the basic structure of our government and our own legal order?

W: That’s a good question. Maybe I should write another speech.

J: Can I suggest a title?

W: By all means.

J: “Beyond Law?”

*Assistant Professor of Law, Northern Illinois University College of Law.

[2] See William Baude, Beyond Textualism, 46 Harv. J.L. Pub. Pol’y 1331, 1350 (2023).

[3] Readers might be thinking of former Scalia clerk and current Harvard Law Dean John Manning. There are, however, many textualists named John, and any resemblance is coincidental.

[4] Baude, supra note 2, at 1336.

[5] See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 22 (Amy Gutmann ed., 1997) (“The text is the law, and it is the text that must be observed”); Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 60 (1988) (“The words of the statute, and not the intent of the drafters, are the ‘law.’”). For a general history of this ontological commitment, see Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. Pa. L. Rev. 117 (2009).

[6] See Baude, supra note 2, at 1334.

[7] U.S. Const. amend. XI (providing that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”)

[8] See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). For a textualist critique of these decisions, see John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663 (2004).

[9] See William Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1 (2017); William Baude & Stephen E. Sachs, The Misunderstood Eleventh Amendment, 169 U. Pa. L. Rev. 609, 611 (2021).

[10] 42 U.S.C. § 1983.

[11] See, e.g., Pierson v. Ray, 386 U.S. 547 (1967); Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[12] See William Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45 (2018).

(2018).

[13] See Scalia, supra note 5, at 28 (stating that substantive canons create “a lot of trouble” for the “honest textualist.”).

[14] Id. The rule of lenity requires that criminal laws be interpreted in favor of criminal defendants.

[15] There are arguably at least five Indian canons, all of which require that legal texts be interpreted in favor of Native Nations and people. For an overview, see Alex Tallchief Skinbine, Textualism and the Indian Canons of Statutory Construction, 55 U. Mich. J.L. Reform 267, 268-73 (2022). For textualist skepticism about the canons, see Scalia, supra note 5, at 28; Amy C. Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 151–53 (2010); Transcript of Oral Argument at 55–56, Ysleta del Sur Pueblo v. Texas, 142 S.Ct. 1929 (2022) (No. 20-493) (Justice Alito) (stating that “[t]hose who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean have some question about some of these substantive canons,” particularly the Indian canon, and questioning whether “throughout history Congress has always framed statutes in a way that are favorable to Indian tribes[.]”). But see Evan D. Bernick, Are the Indian Canons Illegitimate? A Textualist-Originalist Answer for Justice Alito, The Originalism Blog (Mar. 28, 2022, 6:12 A.M.) https://originalismblog.typepad.com/the-originalism-blog/2022/03/are-the-indian-canons-illegitimate-a-textualist-originalist-answer-for-justice-alitoevan-d bernick.html (acknowledging that the statutory canons cannot be traced back to the Founding but defending them as second-best originalist responses to “nontextualist, nonoriginalist doctrines and decisions that legitimate federal regulation of Indian affairs” via statute (as Congress began to do in the mid-19th century) rather than by treaty (as the original Constitution requires)).

A future work will argue that the “Indian” label obscures what was going on in Worcester v. Georgia, 6 Pet. 515 (1832), the case in which the canon was supposedly first applied. In short, the Marshall Court interpreted treaties with Native Nations no differently than other treaties between sovereign nations. In all treaty cases, it applied interpretive principles from Founding-era international law that defy easy classification as “linguistic” or “substantive.”  In Worcester, it applied the principle that treaties be read to preserve each party’s sovereignty. This interpretive landscape is mapped in Seth Davis, Eric Biber, & Elena Kempf, Persisting Sovereignties,170 U. Pa. L. Rev. 549 (2022).

[16] The major questions doctrine requires a clear statutory statement from Congress before agencies can decide questions of major economic and political significance. The Court’s most recent words on the major-questions doctrine are Biden v. Nebraska, No. 22–506, 600 U. S. ____ (2023) and  West Virginia v. EPA, 597 U.S. 697 (2022). For an overview of the MQD, see Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262 (2022). On its compatibility with textualism, compare Benjamin Eidelson & Matthew C. Stephenson, The Incompatibility of Substantive Canons and Textualism, 137 Harv. L. Rev. 515 (2023), and Chad Squitieri, Who Determines Majorness? 44 Harv. J.L. & Pub. Pol’y 463, 464 (2021), with Ilan Wurman, Importance and Interpretive Questions, Va. L. Rev. 43 (forthcoming 2023). Concurring in Biden, Justice Amy Comey Barrett defends the compatibility of the MQD with textualism by reframing the MQD as a linguistic rather than substantive canon. See slip op. at 5, 9-10 (Barrett, J., concurring) (quoting Wayman v. Southard, 10 Wheat. 1, 43 (1825)) (contending that the MQD “is a tool for discerning—not departing from—the text’s most natural interpretation[]” on the ground that “in a system of separated powers, a reasonably informed interpreter would expect Congress to legislate on ‘important subjects’ while delegating away only the details.). For an argument that the reframing does not succeed, see Beau J. Baumann, Let’s talk about that Barrett concurrence (on the “contextual major questions doctrine”), Yale J. on Reg.:: Notice & Comment (June 30, 2023), https://www.yalejreg.com/nc/lets-talk-about-that-barrett-concurrence-on-the-contextual-major-questions-doctrine-by-beau-j-baumann/.

[17] For a textualist critique, see John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2002).

[18] Baude, supra note 2, at 1346–47.

[19] See Conroy v. Aniskoff, 507 U.S. 511, 519 (Scalia, J., concurring) (“The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislatures.”); Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 91 (2017) (describing legislative history as “illegitimate” in the specific sense of being “”insufficient to constitute legislation under our system of governance.”).

[20] Baude, supra note 2, at 1334.

[21] See, e.g., Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983); Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 65 (1988); Frank H. Easterbrook, What Does Legislative History Tell Us? 66 Chi. Kent L. Rev. 441, 445 (1990); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61 (1994).

[22] Easterbrook, supra note 19, at 91.

[23] 5 U.S.C. § 1.

[24]  See, e.g., Frank E. Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L.J. 135, 136 (1984) (reasoning that “this language, taken at its broadest, prohibited ordinary bilateral contracts, partnership agreements, corporations and joint ventures” and approving of the Supreme Court’s decisions “fashion[ing] rules for discriminating between ordinary restraints and anticompetitive ones”).

[25] See Easterbrook, Statutes’ Domains, supra note 21, at 544.

[26] See Scalia, supra note 5, at 26–27 (describing the linguistic canons as “commonsensical”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 526 (1988) (asserting that “some number of linguistic conventions, or rules of language, are known and shared by all people having competence in the English language”).

[27] Id. at 90.

[28] See U.S. v. Marshall, 908 F. 2d 1312, 1318 (7th Cir. 1990) (stating that “[c]anons are doubt-resolvers, useful when the language is ambiguous” and declining to apply the rule of lenity to unambiguous statutory text).

[29] See, e.g., William Baude, Is Originalism Our Law? 115 Colum L. Rev. 2349 (2015); William Baude & Stephen E. Sachs, The Official Story of the Law, 20 Oxford. J. Legal Studies. 1 (2022); William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455 (2019); William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809 (2019); William Baude & Stephen E. Sachs, Originalism’s Bite, 20 Green Bag 2D 103 (2016).

[30] Baude & Sachs, Official Story, supra note 29, at 109.

[31] Baude, supra note 2, at 1334–35.

[32] Compare Adrian Vermeule, Common Good Constitutionalism (2022) with William Baude & Stephen E. Sachs, The “Common-Good” Manifesto, 136 Harv. L. Rev. 861 (2023) (book review).

[33] See Adrian Vermeule, The Bourbons of Jurisprudence, Ius & Iustitium (Aug. 15, 2022), https://iusetiustitium.com/the-bourbons-of-jurisprudence.

[34] See Kevin Walsh & Jeffrey Pojanowski, Enduring Originalism, 105 Geo. L.J. 97, 114-15 (2016).

[35] Baude, supra note 2, at 1336.

[36] Id.

Ohio v. EPA Oral Argument and Standards of Review on the Emergency Docket – Thomas Koenig

Posted by mmullin on Feb 21, 2024 in Per Curiam

Ohio v. EPA Oral Argument and Standards of Review on the Emergency Docket

Thomas Koenig*

The Supreme Court held oral argument this morning in Ohio v. EPA.  The oral argument offers some insights on the potential for the Court to clarify its standard of review for assessing attempts to temporarily halt administrative action.

In the case, a number of States and private industry are asking the Court to “stay” the EPA’s implementation of its new “Good Neighbor” rule for ozone.  The rule requires certain upwind states to reduce their ozone emissions so as to not interfere with downwind states’ ability to meet national air quality standards for ozone.  A fuller overview of the Environmental Law issues in the case is available here.

The Court made the unusual move of holding oral argument on this application for emergency relief.  It did the same thing in the vaccine-or-test NFIB v. OSHA case a few terms back.  Today’s oral argument offered a window into how some of the Justices are conceiving of attempts to temporarily halt administrative action.

Normally, when a litigant asks the Supreme Court to stop an actor (like an executive branch actor) from doing something, they ask the Court for an “injunction.”  But emergency challenges to agency action are routinely framed as “stays.”  Whether that is the case because some of the foundational caselaw on this front arose in a world in which agencies were more apt to act like courts (by doing adjudications) than legislatures (by issuing rules), such that conceiving of the relief along the lines of a stay of a lower court order was more natural, or because more recent caselaw has at times conceived of this sort of relief in specific statutory contexts (like immigration removal orders) as a stay, is a question for another day.

The more pressing question is what standards ought to guide the Court in issuing such relief.  This is especially relevant in a situation like Ohio v. EPA, wherein the lower court (the D.C. Circuit) concluded that the new Good Neighbor Plan should not be halted as the plaintiffs’ merits challenge plods its way through the federal courts.  In this sort of scenario, litigants have begun sparring in their briefs over what exactly they are asking the Supreme Court to do.

Petitioners (like the private industry and States in Ohio v. EPA) regularly fashion their requests as a “stay” that should be governed by the Supreme Court’s standards for issuing “stays.”  In recent years, however, the Solicitor General’s Office has begun combatting this characterization of the relief.  Including in Ohio v. EPA, the SG’s briefing contends that in fact what petitioners are seeking when they aim to halt administrative action at the Supreme Court is an “injunction.”  What’s more, argues the SG, is that the Supreme Court’s traditional standard for issuing such preliminary injunctive relief is much higher than its standard for issuing stays.  That is, the petitioners’ right to injunctive relief, unlike stays, must be “indisputably clear,” to use the phrasing of in-chambers opinions authored by Chief Justice Rehnquist and Justice Scalia.

The Court has not yet resolved this brewing dispute between petitioners and the SG.  It could use Ohio v. EPA as a vehicle to do so.  Did oral argument shed light on how the Court might come out?

Yes and no.

Surprisingly, the SG’s Office did not spend any time during oral argument hammering home its brief’s argument that petitioners were in fact seeking injunctive relief.  The SG’s Office seemed to accept the framing of the relief as a stay.

Similarly surprising was Justice Kagan’s invocation of the Nken framework — a framework for lower courts’ issuances of stays — given that she seems partial to the EPA’s position in the case and has publicly dissented from alleged overuse of the Court’s “shadow docket.”  That is surprising because accepting the SG’s brief’s framing of the sought after relief as an “injunction” — and then applying the proffered Rehnquist/Scalia heightened standard to that relief — cuts in EPA’s favor in this specific case and cuts against the Court issuing consequential rulings in the preliminary stages of litigation by way of emergency orders.

Another interesting piece of oral argument was that Justice Barrett seems to have reupped her Does 1–3 v. Mills concurring opinion’s framework for assessing motions for preliminary injunctive relief.  In that separate opinion, Justice Barrett argued in favor of considering certworthiness as part of the likelihood of success on the merits prong for preliminary injunctive relief.  During oral argument today, Justice Barrett voiced some skepticism with respect to just applying Nken (which, again, articulated the standard for lower courts to apply when issuing stays, and thus does not include any certworthiness considerations).

This move by Justice Barrett raises some interesting questions.  If Justice Barrett wants to include a consideration of certworthiness when assessing motions for emergency relief against agency action but conceives of the requested relief against the EPA as a stay, then she could easily invoke the Supreme Court’s own standard for issuing stays, which does include consideration of certworthiness.  See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam).

But the way in which she framed her question during oral argument — and the way in which Justice Kavanaugh built off it (note, too, that he had joined her Does 1–3 v. Mills concurrence) — indicates that Justice Barrett is not necessarily conceiving of the relief here as a stay.  Surely she would have rebutted the application of Nken with reference to Hollingsworth if so.  Instead, Justice Barrett said that likelihood of success on the merits entails a certworthiness consideration.  That is, she seems to be baking a certworthiness consideration into the injunctive relief inquiry.  Just like she did in her Does 1–3 v. Mills concurrence.  In short, one could read this line of questioning to indicate that Justice Barrett is conceiving of the relief against the EPA as injunctive relief.

If that’s the case, then an even more interesting question arises: how can certworthiness necessarily be a consideration in the preliminary injunctive relief context when that relief, traditionally speaking, requires that the petitioner’s rights be “indisputably clear”?  The tension here is acute when a split in lower court authority provides the grounds for certworthiness.  In an in-chambers opinion assessing an application for preliminary injunctive relief a few years back, Chief Justice Roberts reasoned that the existence of a circuit split cuts against granting the relief.  Why?  Because if the lower courts are divided on the question of petitioner’s right to relief, then the petitioner’s right to relief is probably not “indisputably clear.”  In short, there’s a potential tension between Justice Barrett’s approach and the Rehnquist/Scalia/SG briefing approach.

Finally, that brings me to Justice Jackson’s questions at oral argument today.  Reminiscent of those Rehnquist and Scalia opinions, Justice Jackson evinced discomfort with respect to applying a traditional stay analysis in this posture.  She worried that without a sufficiently heightened standard, the Supreme Court risks supplanting the role of the lower federal courts during the preliminary stages of litigation.  Based on her questioning, her solution to that concern seems to be to require a particularly high level of irreparable harm, something “extraordinarily harmful.”  If one shares Justice Jackson’s concerns about the Supreme Court stepping in too early and too often, though, then it would seem that the “indisputably clear” standard (which goes to the likelihood of success on the merits prong as opposed to irreparable harm) has a stronger foothold in the doctrine.

Time will tell whether the Supreme Court gives a clear answer in Ohio v. EPA to the question of what standard it is applying when it decides whether to temporarily halt agency action.  I have a working draft of a forthcoming student Note available here with my own suggestions on the proper standard, but hopefully those suggestions will be preempted.

In the meantime, today’s oral argument leaves us with a lot of interesting questions — though no answers, yet.

* J.D. Candidate, Harvard Law School 2024.

Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court – Derek T. Muller

Posted by mmullin on Jan 16, 2024 in Per Curiam

Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court

Derek T. Muller*

Each term, the United States Supreme Court receives hundreds of amicus briefs filed in merits docket cases. These totals have increased over the years,[1] and these briefs have found increasing influence in front of the Court.[2] Many of the largest law firms file amicus briefs before the United States Supreme Court.[3] These amicus briefs are often pro bono, which means the clients do not pay for the firm to file the brief.[4] That pro bono work can quickly total millions of dollars of legal briefing subsidized by the law firm.[5] And pro bono work often reflects the law firm’s desire to work for its prior commitments to what it identifies as the “public good.”[6]

Controversies have arisen in recent years over ideological rifts in America’s largest law firms, sometimes for attorneys representing politically unpopular clients,[7] at other times for publicly articulating politically unpopular positions.[8] The ideological leanings of the largest law firms have been a topic of lively debate.

Some efforts have been made to evaluate law firm partisanship based on the political contributions of their attorneys or employees.[9] Such efforts have their own limitations and complexities, so it is worth considering other ways to examine the political leanings of law firms. This Article offers a different approach. It examines the ideological leanings of pro bono work of the largest law firms.

By focusing on pro bono amicus briefs, this Article focuses on the most discretionary aspects of legal practice. Pro bono reflects the choices of attorneys to invest time and resources into a case. The American Bar Association’s Model Rules of Professional Conduct encourage attorneys to provide at least 50 hours of pro bono work each year.[10] A great deal of pro bono work may have no particular ideological valence—indeed, the ABA encourages pro bono work for “persons of limited means.”[11] But some work may have an ideological valence. And large law firms must approve attorneys’ choices, which can reflect the firms’ priorities, too. Filing an amicus brief can consume substantial resources at the law firm—the law firm is putting its significant financial backing behind the effort.[12]

Rather than representing a client as an adversarial party in the case, or being compensated by a paid client, the firm opts to use its valuable resources to assist others at no cost to the client, and to have a voice in litigation where the client is not a party to the dispute but has an interest in the outcome. Cases before the Supreme Court have the highest profile and can affect significant policy in the United States. It offers one way to examine the commitments of law firms.

Data Collection

I developed a novel dataset for all Supreme Court merits cases from October Term 2018 to October Term 2021, a four-year period. I collected 3280 amicus briefs filed on merits cases in that period.[13]

There are admitted limitations. This data does not include cases where amicus briefs were filed at the certiorari stage where the Supreme Court declined to hear the case,[14] or in “emergency docket” cases where the Court may issue significant decisions without a full merits briefing and oral argument.[15] Amicus practice also extends to state courts and lower federal courts; this Article only focuses on one slice of litigation, albeit the highest profile litigation—cases before the Supreme Court. And this Article only focuses on the largest firms—many large firms, smaller firms, boutique firms, and public interest organizations file briefs.

The dataset coded each case using the Supreme Court Database at Washington University for “liberal” or “conservative.”^[16] This methodology has its own documented limitations and is of course reductionist given the complicated issues that can attend any case,^[17] but it allows for a ready reference to an established dataset.[18] I then compared all amicus briefs filed in those cases to determine whether they supported the “liberal” or “conservative” side. There is a limitation to taking the ideology of “liberal” or “conservative” in briefing and translating it ideologically in firms. It is possible, of course, that one’s political preferences do not necessarily perfectly overlap with these ideological legal positions. That said, the reason I chose to examine amicus briefs—those cases where parties volunteered to make their positions known to the court—is because it is more likely that it reflects ideological preferences.

I focused on “Biglaw,” here defined as the American Lawyer 100 (“Am Law 100”)—the top 100 law firms in the United States by gross revenue measured in 2021.[19] Nearly every one of the top 100 firms filed at least one amicus brief before the United States Supreme Court in the October 2018 to October 2021 terms (cases decided between October 1, 2018 and June 30, 2022). Occasionally, two Am Law 100 firms joined on the same brief. In those cases, I coded both Am Law 100 firms.[20]

Overall Results

Of the 3280 amicus briefs filed in this period, the Am Law 100 firms signed onto 928 amicus briefs. But amicus briefs may be on behalf of paying clients or on behalf of pro bono clients. For pro bono clients, there is greater flexibility, discretion, and selectivity—which means it can offer insight into the firm’s priorities. It can represent a contribution of time and money that the firm is willing to make on behalf of a client in pursuit of a particular outcome in a particular case.[21]

I examined whether the firm represented what I labeled a “likely pro bono” client. Firms typically do not disclose the fee arrangements with clients, although there are occasional publicized exceptions.[22] So this Article creates a proxy for clients who are “likely pro bono.” These clients included several groups: non-profit or not-for-profit organizations; current or former government officials; professors and scholars; professionals, such as scientific experts, chaplains, prison guards, and immigration officials; and survivors or victims. It is likely that this is overinclusive, by adding non-profits who may be paying clients of the firm;[23] and it is possibly underinclusive, as there might be for-profit corporations or other individuals who have firms representing them pro bono. It is also possible that law firms provide discounted rates for some non-profits instead of pro bono services.

Most law firms filed amicus briefs—851 briefs in total—that fit this “likely pro bono” category. Of these, 545 (64%) aligned with the liberal position, 261 (31%) with the conservative position, and 45 in support of neither party. See Figure 1.

Figure 1

Figure 1 includes all cases, but not all cases are alike. The Supreme Court decides dozens of cases each year, but different cases attract different levels of attention. In the 223 cases with at least one amicus brief filed, the median was 10 briefs filed.[24] The mean was 14.7 and the standard deviation was 16.4.[25]

Some have more public or legal significance or salience than others. There are a variety of ways to consider salience.[26] For this Article’s purposes, I look at amicus briefs filed in relation to other amicus briefs—the more briefs, the higher the salience.[27] I created three cohorts of amicus briefs. The first are those with the “lowest salience,” with fewer than 30 amicus briefs filed. The second are those in “moderate salience” cases, those with at least 30 but fewer than 60 amicus briefs amicus briefs filed (around one and three standard deviations above the mean). The final category are the “highest salience” cases, those with at least 60 amicus briefs filed (around three standard deviations above the mean). The terminology of “salience” is an imperfect one, as cases have salience or significance for any number of reasons regardless of the volume of amicus briefs filed, but for my purposes it is a way of determining cases more “popular” among amicus briefs filed generally—a proxy, however imperfect, for significance, actual or perceived. Any line-drawing is admittedly subject to a certain degree of arbitrariness.

Most cases fit the “lowest salience” cohort—201 of the 223. In those lowest salience cases, Biglaw firms signed onto 526 briefs in support of liberal or conservative positions. (I removed the briefs in support of neither party for this and subsequent analysis.) The briefs in the “lowest salience” cohort were fairly evenly distributed—322 in support of liberal positions (62.4%) and 194 in support of conservative positions (37.6%).

In “moderate salience” cases—17 cases—the briefs skewed a bit more toward the liberal position. In 192 briefs signed onto by Biglaw firms in moderate salience cases, 130 were in support of the liberal position (67.7%), and 62 in support of the conservative position (32.3%).

And just five cases fit the “highest salience” profile: Dobbs v. Jackson Women’s Health Organization[28] (131 briefs); Bostock v. Clayton County and Harris Funeral Homes v. EECO[29] (93); New York State Rifle & Pistol Association Inc. v. Bruen[30] (81); Fulton v. City of Philadelphia[31] (80); June Medical Services v. Russo[32] (69). Two cases were about abortion, two about sexual orientation or gender identity (one of which included a religious liberty issue), and one about the Second Amendment. These “highest salience” cases touch on some of the most divisive areas of political controversy. Ninety-eight amicus briefs were filed in these five cases by fifty Biglaw firms. Ninety-three briefs (94.9%) aligned with the liberal position, and five (5.1%) with the conservative position. While there is a larger amount of ideological diversity among the less salient cases, in these five “highest salience” cases, the briefs skewed heavily in one direction.[33] For the comparison of the three cohorts of “salience,” see Figure 2.

Figure 2

Firm Specific Results

In a short period of time (just four years and 223 cases with amicus briefs), it can be difficult to identify trends for individual law firms. But I attempted to identify preliminary trends (again excluding amicus briefs filed in support of neither party).

First, I pulled the firms that filed 10 or more amicus briefs on behalf of liberal positions for likely pro bono clients (here, 16 firms):

Figure 3

Second, I examined the firms that filed 10 or more amicus briefs on behalf of conservative positions for likely pro bono clients (here, five firms):

Figure 4

Sixteen firms filed at least 10 amicus briefs in support of liberal positions; just five filed at least 10 in support of conservative positions. And four of the five firms on the conservative list also appear on the liberal list.

If we expect firms to have a coherent and consistent ideological preference, we might expect firms to lean overwhelmingly in one direction or another. But many firms appear on both lists. Perhaps, however, this is unsurprising—the firms with the largest Supreme Court amicus practices simply have the most opportunities to engage in appellate amicus practice, and many opportunities arise regardless of ideology.

Relatedly, I decided to look the distribution among firms that filed at least 10 amicus briefs on behalf of likely pro bono clients in this period—29 firms in all. See Figure 5.

Figure 5

There is a fairly broad spread across these firms. Only three filed more amicus briefs in likely pro bono cases for conservative positions over liberal positions, and most firms fall on the liberal side of the 50% divide. But most firms filed at least 25% of amicus briefs in support of conservative positions. And several firms filed overwhelmingly in support of liberal positions. It shows some variance among firms in terms of the kinds of likely pro bono amicus work they engage in.

Finally, I examined the five “highest salience” cases. Recall that these cases had the strongest ideological polarization, with Biglaw overwhelmingly favoring the liberal positions in these cases. Fifty Biglaw firms filed amicus briefs on behalf of likely pro bono clients in these cases. Forty-six filed in support of the liberal position in at least one case, and four in support of the conservative position in at least one case. Zero firms filed on behalf of both a conservative position and a liberal position across these five cases. There was more ideological polarization in these cases. That is admittedly harder to measure, given how many firms only filed one or two briefs in a set of five cases. But a consistent pattern did emerge across the firms of filing on the liberal side. See Figure 6.

Figure 6

Limitations, Implications, and Areas for Future Inquiry

There are limitations to conclusions one may draw from these figures, and a variety of questions about causation. For law firms, it does not tell us about cases where an attorney at a firm wanted to file a brief, but a conflicts check found a difficulty. A firm that has a partner who has long represented a major non-profit in pro bono work in Supreme Court briefs is likely to continue to do so when similar cases arise, and it can lead to a set of similar ideological briefs being filed without an opportunity for someone else at the firm to weigh in on the other side. This may be particularly true in the “highest salience” cases, where representing one position in, say, an abortion dispute in the past likely results in similar positions in the future. That said, it may reflect a reluctance to abandon a position previously staked or a pro bono client previously taken on.

It also cannot tell us about rejections of requests from attorneys to file an amicus brief—whether it was a decision of resources and time, or a decision that the firm did not support the underlying position. Another reason for rejection may well be client preferences. Firms may choose positions in amicus briefs that signal support for a particular cause, or refuse to take positions elsewhere, to appease clients.[34]

Even claiming that “the firm” has a position can be misleading, as it may well be a decision of the committee that clears such requests, and it may well reflect the preferences of the committee more than the firm as a whole. And it may be that partners or associates at the firm are not requesting the work for a particular ideological position in the first place, as opposed to having their requests denied for one reason or another. That said, a fruitful area of future research might try to compare political contributions at law firms with the ideological preferences of likely pro bono amicus briefs.[35] Similarly, a look at individual Supreme Court litigators at these firms and their previous ideological or partisan affiliations may be useful.

Relatedly, it is possible that some conservative-leaning pro bono organizations do not request Biglaw firms to join briefs, particularly in high salience cases, because they anticipate the answer will be no. Or perhaps there are fewer conservative-leaning than liberal-leaning groups out there who are interested in such briefs. Or some pro bono organizations may prefer to file on their own, if they have attorneys in-house who prefer to be named as the attorney of record on brief and maintain control of the brief. That decision, of course, loses the signaling mechanism of an elite law firm’s name on a brief.[36] And it is possible that groups supporting liberal-leaning positions are better at coordinating amicus brief activity than groups supporting conservative-leaning positions.[37] A qualitative analysis of the non-profit organizations that file amicus briefs may be illuminating.

For all its limitations, this Article does offer some insight into likely pro bono amicus work at large law firms. There is little doubt that America’s largest law firms invest more resources in more liberal-leaning causes than conservative-leaning causes on behalf of likely pro bono clients in front of the United States Supreme Court.[38] But they invest substantial resources into conservative-leaning causes, too. In the biggest cases of this recent four-year period, however, the firms’ likely pro bono amicus work overwhelmingly leaned in the liberal direction.[39]

That said, there is some meaningful ideological diversity even within a firm in likely pro bono amicus briefs. It may show that political donations are only one measure—and an imperfect measure—of ideology within a law firm, either among the attorneys at the firm or as a signal for the firm’s clients.[40] And there is also some diversity across firms—a few firms leaned more conservative in this time period, some firms had a more even split, and most others leaned somewhat heavily toward liberal positions. The data also presents a more complicated portrait of law firms that may be publicly portrayed through a particular ideological or partisan lens. The data shows a variety of ways in which the largest law firms are putting their time and resources in litigation before the United States Supreme Court, and some diversity among law firms’ approach to amicus briefs on behalf of likely pro bono clients.

* Professor of Law, Notre Dame Law School. Special thanks to Adam Feldman, Andy Hessick, and Kyle Rozema for feedback on earlier drafts of this piece.

[1] See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the United States Supreme Court, 148 U. PA. L. Rev. 743 (2000).

[2] Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901 (2016); Paul M. Collins, Jr., Pamela C. Corley, & Jesse Hamner, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, 49 L. & Soc. Rev. 917 (2015).

[3] See, e.g., H.W. Perry Jr., The Elitification of the U.S. Supreme Court and Appellate Lawyering, 72 S.C. L. Rev. 245, 262–63 (2020); Larsen & Devins, supra note 2, at 1906–07, 1916–17, 1927–30.

[4] See Larsen & Davis, supra note 2, at 1918, 1929–31. See also Nancy Morawetz, Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice: Recommendations for the New Supreme Court Pro Bono Bar and Public Interest Practice Communities, 86 N.Y.U. L. Rev. 131 (2011).

[5] See infra note 12.

[6] See, e.g., Pro Bono, Morgan Lewis, https://www.morganlewis.com/our-firm/our-culture/pro-bono (last visited Jan. 5, 2024) (“Our firm’s commitment to doing work for the public good manifests through the pro bono efforts of lawyers in every one of our global offices. We take on matters impacting individuals or small groups as well as litigation driving large-scale societal change.”); Pro Bono, Arnold & Porter, https://www.arnoldporter.com/en/about/pro-bono (last visited Jan. 5, 2024) (“We have a long history of taking on matters to redress injustice . . . . The broad spectrum of pro bono work we undertake is driven by our dedication to amplifying the voices of those who might not otherwise be heard.”); Pro Bono, Cleary Gottlieb, https://www.clearygottlieb.com/practice-landing/pro-bono (last visited Jan. 5, 2024) (“Founded in a spirit of inclusiveness, personal and professional responsibility, compassion for the needs of others, and dedication to improving the communities in which we live and work, Cleary Gottlieb is fully committed to the duties of good global citizenship. We believe pro bono work should be a mindful choice, one that expresses both personal and collective interests.”).

[7] See, e.g., Marisa M. Kashino, Clement Praised by Peers for Leaving King & Spalding Over DOMA, Washingtonian, Apr. 25, 2011, https://www.washingtonian.com/2011/04/25/clement-praised-by-peers-for-leaving-king-spalding-over-doma/; David Lat, Paul Clement Leaves Kirkland & Ellis Amid a Dispute Over Gun Cases, Original Jurisdiction, June 24, 2022, https://davidlat.substack.com/p/paul-clement-leaves-kirkland-and.

[8] See, e.g., David Lat, Biglaw’s Latest Cancel-Culture Controversy, Original Jurisdiction, Dec. 1, 2022, https://davidlat.substack.com/p/biglaws-latest-cancel-culture-controversy.

[9] See, e.g., Derek T. Muller, Ranking the most liberal and conservative law firms, Excess of Democracy, July 16, 2013, https://excessofdemocracy.com/blog/2013/7/ranking-the-most-liberal-and-conservative-law-firms; Adam Bonica, Adam S. Chilton, & Maya Sen, The Political Ideologies of American Lawyers, 8 J. of L. Analysis 277 (2016); Derek T. Muller, Ranking the most liberal and conservative law firms among the top 140, 2021 edition, Excess of Democracy, Nov. 8, 2021, https://excessofdemocracy.com/blog/2021/11/ranking-the-most-liberal-and-conservative-law-firms-among-the-top-140-2021-edition.

[10] Model Rules of Pro. Conduct r. 6.1. (Am. Bar Ass’n 2019).

[11] Id.

[12] See, e.g., Katherine Snow Smith, What is an amicus brief, exactly? Let us explain, The Legal Exam’r, Nov. 5, 2020, https://www.legalexaminer.com/legal/what-is-an-amicus-brief-exactly-let-us-explain/ (citing one scholar in 2020 who estimates the price on an amicus brief at $40,000, and a practitioner who noted, “I’m aware of some that cost $60,000, $70,000, $80,000 or more…”); Kelly J. Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33, 58 (2004) (noting 2004 estimate from Sidley Austin Brown & Wood that “an amicus brief would run approximately $50,000 today”).

[13] Any data entry or coding errors are my own. Amicus briefs exclude briefs filed by the United States or the Solicitor General.

[14] See, e.g., Adam Bonica, Adam Chilton, & Maya Sen, The “Odd Party Out” Theory of Certiorari (Harv. Kennedy School Working Paper, Paper No. RWP20-020, 2023), https://scholar.harvard.edu/sites/scholar.harvard.edu/files/msen/files/odd-party-out.pdf.

[15] See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 NYU J.L. & Liberty 1 (2015).

[16] The Supreme Court Database, Wash. U. L., http://supremecourtdatabase.org/documentation.php (last visited Jan. 5, 2024). The Codebook for the Database explains the methodology. See http://supremecourtdatabase.org/_brickFiles/2022_01/SCDB_2022_01_codebook.pdf. For instance, “liberal” in “issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys” include pro-affirmative action, pro-female in abortion, pro-person accused or convicted of crime positions; and “conservative” the opposite. In tax cases, “liberal” positions are pro-United States and “conservative” pro-taxpayer. In an occasional case where the outcome was “unspecifiable,” I supplied coding. For instance, in Frank v. Gaos, 139 S. Ct. 1041 (2019), the parties briefed the case, amici filed briefs in support, and the Court later asked for briefing on another issue and decided the case on that basis.

[17] See id. (“Hence, if you are analyzing issue, legal provision, or direction (liberal, conservative, indeterminate), keep in mind that the data pertain only to the first of what may comprise an additional number of issues or legal provisions for any given case.”). See also Michael Heise, Beyond Replication: A Few Comments on Spruk and Kovac and Martin-Quinn Scores, 61 Int’l Rev. L. & Econ. 1, 2 (2020); Todd E. Pettys, Free Expression, In-Group Bias, and the Court’s Conservatives: A Critique of the Epstein-Parker-Segal Study, 63 Buff. L. Rev. 1 (2015); Aaron-Andrew P. Bruhl, Measuring Circuit Splits: A Cautionary Note, 3 J. Legal metrics 361 (2014). And some cases may not necessarily code as “liberal” or “conservative” to a popular understanding. For instance, a case construing Article III standing narrowly may be coded as “conservative,” but the outcome of the case may appear to be a liberal victory. See California v. Texas, 141 S. Ct. 2104 (2021). Likewise, a case involving the free exercise of religion may be coded as “liberal,” but the outcome of the case may appear to be a conservative victory. See Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

[18] There are admittedly alternative ways of determining ideological positions through textual analysis, and it is possible to explore ideology in texts using large language models or other “big data” methods, too. See, e.g., Michael Laver, Kenneth Benoit, & John Garry, Extracting Policy Positions from Political Texts Using Words as Data, 97 Am. Pol. Sci. Rev. 311 (2003); Justin Grimmer, We Are All Social Scientists Now: How Big Data, Machine Learning, and Causal Inference Work Together, 48 Pol. Sci. & Pol. 80 (2015).

[19] The 2021 Am Law 100: Ranked by Gross Revenue, Am. Law., Apr. 20, 2021, https://www.law.com/americanlawyer/2021/04/20/the-2021-am-law-100-ranked-by-gross-revenue/. Any firms that merged during this period of time were coded together.

[20] In the relatively rare event that more than one Am Law 100 law firm was on the brief, I counted each law firm separately, as if co-authors on an article. This means the total of amicus briefs “signed by” large law firms is a slightly larger total than the raw number of amicus briefs filed.

[21] See supra notes 6 and 12 and accompanying text.

[22] See supra note 12.

[23] For instance, political parties are tax-exempt organizations in the United States, but political parties spend significant money on litigation costs. See, e.g., Derek T. Muller, Reducing Election Litigation, 90 Fordham L. Rev. 561 (2021). These and other complexities in using “likely pro bono” as a proxy for pro bono work likely overstate some of the work. There are also many non-profit trade organizations that represent the interests of groups like commerce, petroleum, manufacturers, lawyers, and doctors. I coded them all as “likely pro bono” and did not try to distinguish between types of non-profit organizations. I did, however, run a rough estimate to see if pulling out these organizations, which were about one quarter of all “likely pro bono” amicus briefs in this period, would change the results. The positions of briefs of these organizations did tend to skew more conservative than other “likely pro bono” organizations, likely because “pro-business” positions are coded “conservative,” see supra note 17. That means the overall analysis might skew more in the “liberal” direction if business organizations were excluded.

[24] In consolidated cases, some briefs are filed in one or another case, and some in both. I ensured briefs were only counted once, but I took the larger cases and consolidated them even if briefs were only filed in one or another case (e.g., Rucho v. Common Cause and Lamone v. Benisek).

[25] See Aaron-Andrew P. Bruhl & Adam Feldman, Separating Amicus Wheat from Chaff, 106 Geo. L.J. Online 135, 135 (2017) (noting that cases with thirty or more amicus briefs are “no longer particularly rare”). Cf. Kearney & Merrill, supra note 1, at 831 (identifying thirty-four cases that triggered twenty or more amicus briefs in a fifty-year period between 1946 and 1995).

[26] One way to determine salience might be popular salience ascertained by media coverage. See, e.g., Tom S. Clark, Jeffrey R. Lax, & Douglas Rice, Measuring the Political Salience of Supreme Court Cases, 3 J.L. & Cts. 37 (2015). Other ad hoc measures include the CQ Press “Key Cases,” identified by CQ Press authors as the “most important in American constitutional and political history,” see Supreme Court Collection, CQ Press, https://library.cqpress.com/scc/static.php?page=about&type=public (last visited Jan. 5, 2024); and Segal-Cover scores, which focus on “civil liberties and civil rights” issues, see Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of U.S. Supreme Court Justices, 83 Am. Pol. Sci. Rev. 557 (1989).

[27] Looking at the total number of briefs filed could be a more challenging measure to use across eras, as amicus practice has grown significantly, but in this limited window of time it should offer a comparable measure regardless of the term in which the Court heard the case. See also Ryan Salzman, Christopher J. Williams, & Bryan T. Calvin, The Determinants of the Number of Amicus Briefs Filed Before the U.S. Supreme Court, 1953-2001, 32 Just. Sys. J. 293 (2011).

[28] 142 S. Ct. 2228 (2022).

[29] 140 S. Ct. 1731 (2020).

[30] 142 S. Ct. 2111 (2022).

[31] 141 S. Ct. 1868 (2021).

[32] 140 S. Ct. 2103 (2020).

[33] See also Bruhl & Feldman, supra note 25, at 146–47 (noting that high profile cases attract more amicus briefs of “quite different kinds,” a qualitative and quantitative increase in briefs).

[34] Indeed, at least one prominent law firm dispute over the appellate litigation positions of one its attorneys appears to have been driven by client concerns. See supra note 7 and accompanying text; Jess Bravin, Winning Lawyers in Supreme Court Gun Case Leave Firm, Wall St. J., June 23, 2022, https://www.wsj.com/articles/winning-lawyers-in-supreme-court-gun-case-leave-firm-11656026132 (“After recent mass shootings, other Kirkland clients began expressing reservations over the firm’s work for the gun movement, a person familiar with the matter said. Kirkland ‘started getting a lot of pressure post-Uvalde, hearing from several big-dollar clients that they were uncomfortable,’ this person said. ‘Several partners agreed that they should drop that representation.’”).

[35] An initial comparison of some of my previous research on law firm political contributions with the data here shows some relationship between political giving and amicus contributions. See supra note 9. That said, most firms mostly contribute to Democratic political candidates and mostly support liberal positions in likely pro bono amicus briefs, which deserves separate inquiry in later research.

[36] See Larsen & Devins, supra note 2, at 1921–24 (describing parties “wrangling” amicus briefs to include coveted attorneys on brief).

[37] See id. at 1919–26 (describing the “wrangling” and “whispering” of organized amicus brief practice).

[38] Cf. supra note 12 (approximating a financial value for drafting amicus briefs).

[39] Additionally, the skew of briefs could be overstated in one direction or another if some categories labeled “likely pro bono” are not actually pro bono but on behalf of paying clients. See supra note 23 and accompanying text.

[40] See, e.g., Larsen & Devins, supra note 2, at 1940–41 (identifying varying benefits to the law firm in filing amicus briefs). See also Janet M. Box-Steffensmeier, Quality Over Quantity: Amici Influence and Judicial Decision Making, 107 Am. Pol. Sci. Rev. 446 (2013) (noting heterogenous influence of outside groups in amicus brief filing on the United States Supreme Court).

Justice Thomas Reconceptualizes Civil Rights Laws, and a Recovery of the Original Meaning of the Fourteenth Amendment is Long Overdue – Frank J. Scaturro

Posted by mmullin on Nov 15, 2023 in Per Curiam

Justice Thomas Reconceptualizes Civil Rights Laws, and a Recovery of the Original Meaning of the Fourteenth Amendment Is Long Overdue

Frank J. Scaturro*

The Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College[1] effectively ends race-based affirmative action in university admissions as violations of both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The extensive commentary that has followed has largely overlooked how a detail in Justice Clarence Thomas’ concurrence prompts a reconceptualization of the constitutional basis for federal civil rights laws.

While laying out an originalist defense of the Court’s holding, Justice Thomas makes a historical observation about the Civil Rights Act of 1875,[2] the first anti-segregation statute of national scope. Among other things, the law prohibited racial discrimination in “inns, public conveyances on land or water, theaters, and other places of public amusement.”[3] Justice Thomas describes it as “[t]he marquee legislation” among the Reconstruction-era statutes eliminating discriminatory state laws and “criminalizing racially motivated violence.” The 1875 law, the Justice recognizes, was grounded by its proponents in the Fourteenth Amendment, and it provided “further evidence for the colorblind view” contained in that post–Civil War amendment to the Constitution.[4] Later in his concurrence, Justice Thomas reiterates that the law had been passed under congressional “authority to enforce the Fourteenth Amendment.”[5]

As a historical matter, these are basic observations. As a jurisprudential matter, identifying the Fourteenth Amendment as the basis for the 1875 law is a bold step, because the Supreme Court struck down the law’s public accommodations provisions as unsupported by that amendment in the Civil Rights Cases in 1883.[6] The Court reasoned that this was an impermissible “direct and primary” regulation of individual conduct and that Congress was limited to passing corrective legislation tailored to address some form of state-sanctioned conduct.[7] (The decision did not go quite so far as to say that Congress cannot regulate the conduct of private individuals, but that is nonetheless how the Court’s “state action” doctrine would ossify during the twentieth century.[8])

Section One of the Fourteenth Amendment provides, among other things, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” Section Five establishes that “Congress shall have the power to enforce” the amendment “by appropriate legislation.” Viewed in a vacuum, this is broad language susceptible to multiple interpretations. Viewed in historical context, whether the postwar amendment authorized Congress to pass the Civil Rights Act of 1875 is not a difficult question.

Consider the congressional debates that occurred over the course of Reconstruction spanning from the inception of the Fourteenth Amendment, which Congress passed in 1866 with only Republican votes in favor prior to ratification in 1868, to the civil rights legislation passed in 1875. The predominant Republican view held the amendment to be an affirmative conferral of substantive personal rights that Congress could enforce. Those rights included freedom from racial discrimination by entities that were not limited to governmental actors.[9] That view was articulated often during post-ratification debates to refute the notion that congressional power was strictly corrective, which was the theory embraced by Democratic opponents of the Fourteenth Amendment—belying the fear they sometimes stoked while the amendment was pending in 1866 that it would expand congressional power so much that it would rob the States of all their power.[10] As John Bingham, the principal author of Section One of the Fourteenth Amendment, put it during debates over the Ku Klux Klan Act[11] in 1871, laws to enforce the amendment could be “preventive,” not merely “remedial and punitive.” He asked, “Why not in advance provide against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people?”[12]

The Supreme Court’s paradigm in the Civil Rights Cases disregarded a parallel concern about nonstate actors that occupied much attention from the Reconstruction Amendments’ framers from the beginning. While discriminatory state action was certainly a prominent motivation for constitutional change, the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, collected from the vast majority of witnesses testimony regarding wrongs by private individuals perpetrated against freedmen and their white allies.[13]

As Reconstruction proceeded, this problem persisted with the rise of the Ku Klux Klan and other terrorist organizations that engaged in rampant violence and intimidation. The Fifteenth Amendment, which banned racial discrimination in voting, was passed in that environment by Congress in 1869 and ratified in 1870. It was framed using language similar to that of its predecessor, stating that the right of citizens “to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Congressional enforcement of that amendment predictably addressed misconduct by nonstate actors acting on their own as well as by government officials, and even the very Supreme Court Justices who decided the Civil Rights Cases did not question that construction. Just one year after confining Fourteenth Amendment enforcement to state-sanctioned conduct, a unanimous Court in Ex Parte Yarbrough[14] rejected the argument that a similar standard should apply to enforcement of the Fifteenth Amendment and upheld the conviction of a group of private individuals who had brutally beaten an African-American voter. Years later, however, in James v. Bowman,[15] a different group of Justices applied a rigid state action doctrine to the Fifteenth Amendment and struck down a provision that had originated as Section Five of the first Enforcement Act,[16] passed in 1870, that applied to private individuals.

During the Civil Rights Movement of the twentieth century, the Supreme Court would arrive at a different conclusion about congressional power to pass the Civil Rights Act of 1964,[17] which included prohibitions of racial discrimination in public accommodations similar to the provisions of the Civil Rights Act of 1875 involved in the Civil Rights Cases. But at that time, case law had stretched congressional power under the Interstate Commerce Clause well beyond its original meaning, and it was under that provision rather than the Fourteenth Amendment that the 1964 law’s public accommodations provisions were upheld.[18] The first Supreme Court decision to do so, Heart of Atlanta Motel v. United States,[19] involved a motel that advertised extensively on interstate highways with transient interstate travelers comprising 75 percent of its guests. But the Court subsequently upheld the act under the Commerce Clause in circumstances so tenuously related to interstate commerce that, as Justice Hugo Black maintained in dissent in Daniel v. Paul,[20] it was “stretching the Commerce Clause so as to give the Federal Government complete control over ever little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States.”[21]

Section Five of the Fourteenth Amendment would thus remain relatively dormant. That situation appeared to be on the verge of change in United States v. Guest,[22] a case of statutory construction in which a total of six Justices expressed, over the course of two concurrences or partial concurrences, the opinion that the Fourteenth Amendment empowers Congress to punish private conspiracies in the absence of state action.[23] But a majority of the Court made it clear in City of Boerne v. Flores[24] and United States v. Morrison[25] that Section Five of the Fourteenth Amendment still gave Congress merely corrective or remedial power. In Morrison, the Court reaffirmed the state action doctrine that had prevailed over the twentieth century and dismissed the language of the Guest concurrences as insufficient “to cast any doubt upon the enduring vitality of the Civil Rights Cases.”[26]

The endurance of oft-cited precedent is not surprising in the absence of historical understanding to the contrary. A common mistake with respect to the Civil Rights Cases is the assumption that a decision handed down a mere fifteen years after the Fourteenth Amendment’s ratification reflected its original meaning. But Reconstruction is no ordinary period of constitutional innovation. Within a decade after the ratification of the Fourteenth Amendment came an intense public backlash against federal intervention in the South and the withdrawal of the last remaining troops from their posts in that region by President Rutherford B. Hayes in 1877.[27] That event, traditionally viewed as the end of Reconstruction, came six years before the Civil Rights Cases were decided.

Whether or not the Morrison Court, which struck down part of the Violence Against Women Act, reached the correct result under Section Five of the Fourteenth Amendment, it went astray in its embrace of the Civil Rights Cases. Failing to explore the years before 1883, the majority’s analysis in Morrison simply observed that every Justice on the Supreme Court “had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur—and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.”[28] As a matter of originalist analysis, that observation was sloppy and ill-informed. While President Abraham Lincoln obviously did not live long enough to witness the relevant events, President Ulysses S. Grant signed the Civil Rights Act of 1875 into law, with future President James A. Garfield among the congressmen voting in favor of passage.[29] After the Court handed down its decision in the Civil Rights Cases striking down that law, former President Hayes wrote Justice John M. Harlan to praise his lone dissenting opinion in the case—as did retired Supreme Court Justices Noah H. Swayne (a Lincoln appointee) and William Strong (a Grant appointee).[30] Incumbent President Chester A. Arthur expressed his disapproval of the Court’s decision in his Third Annual Message.[31]

On top of that, the author of the Court’s decision, Justice Joseph P. Bradley, used to hold contrary views about the Fourteenth Amendment. In 1871, he wrote to William B. Woods, a circuit judge who sought advice in a case before him involving a challenge to the constitutionality of Section Six of the 1870 Enforcement Act, which criminalized private conspiracies that attack a citizen’s federally protected rights and privileges. Justice Bradley advised why he considered the law to be constitutional. He considered congressional legislation “which will operate directly on offenders and offenses” to be appropriate, and he explained that the Fourteenth Amendment

prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.[32]

Judge Woods not only reached the same conclusion as Justice Bradley, but he quoted the above language nearly verbatim in his circuit court opinion.[33] Justice Bradley’s own notes in his papers accompanying his correspondence with Woods admit that his views expressed in 1871 “were much modified by subsequent reflection.”[34] He was not alone in changing his mind by the time he wrote for the Court in the Civil Rights Cases. Judge Woods, who was elevated to the Supreme Court in 1881, made a similar about-face and joined Bradley’s opinion.

Like the Fourteenth Amendment itself, the Civil Rights Act of 1875 was passed by Congress with only Republicans voting in favor of passage. While there were Republican defectors who joined Democrats in voting no,[35] 27 out of 28 votes cast by those who had voted for the Fourteenth Amendment in 1866 (combining totals in the House and Senate) were in favor of passage.[36] Even the exception who voted no, Senator William Sprague, cannot be said to have had a track record in favor of the Court’s state action doctrine, having voted in 1870 for the first Enforcement Act, which exceeded what the Court’s 1883 standard would permit Congress to pass.[37] The same is true of another senator, Lot Morrill, who voted for the Fourteenth Amendment but was absent for the 1875 vote. Additionally, James G. Blaine, who had voted for the Fourteenth Amendment in 1866, did not cast a vote in 1875 as a matter of custom because he was then speaker of the house, but he facilitated the measure’s passage,[38] and two Republican House members recorded as not voting in 1866 voted for the 1875 bill.[39]

Viewed as an originalist exercise, the 1883 Court was effectively telling the framers of the Fourteenth Amendment that they did not understand their own amendment. But the Court’s opinion in the Civil Rights Cases taken on its own terms gave no indication that it was attempting to discern original meaning. How could it when its author was departing from his own original understanding? It was Justice Harlan, the dissenter, who articulated his “earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.”[40] The New York Times editorialized at the time, “The tendency during the war period was toward the construction which” Harlan “favors. Since then, a reaction has set in, which, so far, is beneficent.” The Court’s opinion thus “has satisfied public judgment, and Justice Harlan’s will hardly unsettle it.”[41]

Living constitutionalists, take note: as time moves forward, changing attitudes do not necessarily improve. The retreat from Reconstruction demonstrates this. If original meaning should be discarded to suit the times, the Court during this period was simply proceeding as it naturally should. And in this case, the regression that enabled the Civil Rights Cases intensified in future years. During the years after the Court handed down its “state action” doctrine, States would in fact act to compel racial segregation in public accommodations and conveyances, and the Court would take a further step away from the Fourteenth Amendment’s egalitarian meaning by validating the notion of “separate but equal” in Plessy v. Ferguson.[42] There again, Justice Harlan was the lone dissenter, and his opinion, which among other things invoked the “intent of the legislature,”[43] would be repeatedly vindicated between Brown v. Board of Education[44] and the recent affirmative action decision.

What are we to make of the modern Supreme Court’s largely unchanged jurisprudence on congressional power under the Fourteenth Amendment? When the Court decided Boerne and Morrison, there was so little awareness of the relevant history that even the dissenters made no historical argument to challenge the Civil Rights Cases. The three dissenters in Boerne, a decision that invalidated the Religious Freedom Restoration Act’s application to the States, focused on the right to free exercise and other arguments.[45] The four Morrison dissenters were content to rest their argument on the ahistorical expansion of the Commerce Clause.[46] (Justice Stephen Breyer, joined by one other dissenting Justice, briefly touched on the Fourteenth Amendment in Morrison but confined himself to what the majority had said in 1883.[47])

Although Justice Thomas joined the Court’s opinions in Boerne and Morrison, it is he who, over the course of his concurring and dissenting opinions, ended up leading the way in recent years to arguing for the correction of lingering distortions of the Fourteenth Amendment’s original meaning. He has criticized the Court’s decision in the Slaughter-House Cases[48] for eviscerating the amendment’s Privileges or Immunities Clause.[49] He identified that provision as the true means by which rights mentioned in the Bill of Rights were incorporated and applied to the States.[50] In Students for Fair Admissions, he recognized it as a source of the Fourteenth Amendment’s prohibition against racial discrimination along with the Equal Protection Clause while the Court has largely confined itself to the latter clause for the nondiscrimination principle.[51]

Justice Thomas has already rejected a major premise of Boerne—the cramped conception of free exercise that the Court handed down in Employment Division v. Smith,[52] the overruling of which he advocated in Fulton v. City of Philadelphia in 2021.[53] In another case two years ago, Biden v. Knight First Amendment Institute,[54] Justice Thomas wrote a concurrence in the dismissal of the case as moot in support of his suggestion that a digital platform like Twitter might be subject to the government’s power to limit the right of a private company to exclude. Such power, he explained, derives from the longstanding regulation of common carriers as well as the related ability to “limit[] a company’s right to exclude when that company is a public accommodation,” i.e., “companies that hold themselves out to the public but do not ‘carry’ freight, passengers, or communications.”[55] For that proposition, Justice Thomas cited Justice Harlan’s dissent in the Civil Rights Cases, which tracked the same rationale advanced by proponents of the Civil Rights Act as it was being debated during the 1870s.[56]

Concurring in United States v. Vaello Madero[57] last year, Justice Thomas also favorably cited Justice Harlan’s dissent along with the great Justice’s other judicial opinions articulating a right to equal treatment inherent in citizenship under the Fourteenth Amendment.[58] So his citation of the 1875 Civil Rights Act in Students for Fair Admissions as authorized by that amendment should have come as no surprise. It does deserve attention, because Justice Thomas’ opinions suggest an originalist case for reconceptualizing the Fourteenth Amendment as the constitutional basis for federal civil rights laws. Also noteworthy is that the newest member of the Court, Justice Ketanji Brown Jackson, sided with Justice Harlan’s Civil Rights Cases dissent in her dissenting opinion in the Students for Fair Admissions companion case involving the University of North Carolina.[59]

The Reconstruction historian Eric Foner asserted, “The elevation of the Commerce Clause into a ‘charter of human rights,’ a way of compensating for the Supreme Court’s cramped view of the Reconstruction amendments, has made the judiciary look ridiculous.”[60] Foner is not an attorney, but he is correct on that point. The long, dark chapter in American history that came with the retreat from Reconstruction should teach a lesson to judges who would change the Constitution’s original meaning to conform to the times: conditions can regress over time, and constitutional rights must not be diminished when the times deem it acceptable to disregard them.

In an appropriate future case, the Court should overturn the blight on Fourteenth Amendment jurisprudence that is the Civil Rights Cases. And the senior associate Justice appears to have the vote of the junior associate Justice for doing so. Who else among the Justices may join them?

* Frank J. Scaturro is Vice-President and Senior Counsel of JCN and author of The Supreme Court’s Retreat from Reconstruction.

[1] 143 S. Ct. 2141 (2023).

[2] 18 Stat. 335.

[3] Id.

[4] 143 S. Ct. at 2184 (Thomas, J., concurring).

[5] Id. at 2190–91 (Thomas, J., concurring).

[6] 109 U.S. 3 (1883).

[7] Id. at 14–20, 23.

[8] See James v. Bowman, 190 U.S. 127, 136–38 (1903); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 103, 161–70, 186–90, 206 (2011).

[9] See Frank J. Scaturro, The Supreme Court’s Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence 79–93 (2000).

[10] See id. at 132; Horace Edgar Flack, The Adoption of the Fourteenth Amendment 138–39 (1908).

[11] 17 Stat. 13.

[12] Cong. Globe, 42d Cong., 1st Sess. app. 85 (1871).

[13] Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1329–30 (1952); Laurent B. Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1354–55 (1964).

[14] 110 U.S. 651 (1884).

[15] 190 U.S. 127 (1903).

[16] 16 Stat. 140.

[17] 78 Stat. 241.

[18] See Scaturro, supra note 9, at 193–98.

[19] 379 U.S. 241 (1964).

[20] 395 U.S. 298 (1969).

[21] Id. at 315 (Black, J., dissenting).

[22] 383 U.S. 745 (1966).

[23] See id. at 761–62 (Clark, J., concurring); id. at 781–84 (Brennan, J., concurring in part and dissenting in part).

[24] 521 U.S. 507 (1997).

[25] 529 U.S. 598 (2000).

[26] Id. at 624.

[27] See Scaturro, supra note 9, at 7–18.

[28] 529 U.S. at 622.

[29] 3 Cong. Rec. 1011 (1875) (House vote).

[30] Alan F. Westin, John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner, 66 Yale L.J. 637, 681–82 (1957).

[31] See 8 A Compilation of the Messages and Papers of the Presidents, 1789–1897, at 188 (James D. Richardson ed., 1900).

[32] Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit at xv (2021).

[33] United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871).

[34] Charles Fairman, 7 History of the Supreme Court of the United States: Reconstruction and Reunion, 1864–88, pt. 2, at 192 (1987).

[35] Pamela Brandwein maintains that Republicans were “not a unit” when it came to “the principles, political wisdom, or constitutionality of this bill.” Brandwein, supra note 8, at 68. But she does not differentiate between the voting record of more recent arrivals in Congress during this era of backlash against Reconstruction and that of those who had previously served in 1866.

[36] See Cong. Globe, 39th Cong., 1st Sess. 3042 (1866) (Senate vote); id. at 3149 (House vote)­; 3 Cong. Rec. 1011 (1875) (House vote); id. at 1870 (Senate vote).

[37] Cong. Globe, 41st Cong., 2d Sess. 3809 (1870) (Senate vote).

[38] Alan Friedlander & Richard Allan Gerber, Welcoming Ruin: The Civil Rights Act of 1875, at 525–28 (2019).

[39] The two members were Representative John A. Kasson of Iowa and Representative William Lawrence of Ohio. See Cong. Globe, 39th Cong., 1st Sess. 3149 (1866) (House vote); 3 Cong. Rec. 1011 (1875) (House vote).

[40] The Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting).

[41] N.Y. Times, Nov. 19, 1883, at 4 (typeface in original).

[42] 163 U.S. 537 (1896).

[43] Id. at 558–59 (Harlan, J., dissenting).

[44] 347 U.S. 483 (1954).

[45] See 521 U.S. at 544–65 (O’Connor, J., dissenting); id. at 565–66 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting).

[46] See 529 U.S. at 628–55 (Souter, J. dissenting); id. at 655–66 (Breyer, J., dissenting).

[47] Id. at 664–66 (Breyer, J., dissenting).

[48] 83 U.S. (16 Wall.) 36 (1873).

[49] See Saenz v. Roe, 526 U.S. 489, 521–28 (1999) (Thomas, J., dissenting).

[50] See McDonald v. City of Chicago, 561 U.S. 742, 805–51 (2010) (Thomas, J., concurring in part and concurring in the judgment).

[51] 143 S. Ct. 2141, at 2182–83, 2203 (2023) (Thomas, J., concurring).

[52] 494 U.S. 872 (1990).

[53] 141 S. Ct. 1868, 1883–1926 (2021) (Alito, J., concurring in the judgment); id. at 1926–31 (Gorsuch, J., concurring in the judgment).

[54] 141 S. Ct. 1220 (2021).

[55] Id. at 1222–23 (Thomas, J., concurring).

[56] Id. at 1223 (Thomas, J., concurring); see, e.g., Cong. Globe, 42d Cong., 2d Sess. 382–85 (1872) (statement of Sen. Sumner).

[57] 142 S. Ct. 1539 (2022).

[58] See id. at 1550–51 (Thomas, J., concurring).

[59] 143 S. Ct. at 2265, 2268 (2023) (Jackson, J., dissenting).

[60] Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 172 (2019).