Original Meaning, Context, and Shifting Reference Points: The Racial Connotations of "Freedmen"

At the Atlantic, Adam Serwer critiques Justice Thomas's analysis of the original meaning of the Fourteenth Amendment's Equal Protection Clause in the Court's Students for Fair Admissions, Inc. v. President and Fellows of Harvard College opinion. Specifically, Serwer takes issue with Thomas's claim that the term "freedmen" was racially neutral. Michael Rappaport, whose work Thomas cites in support of this claim, calls out Serwer, labeling his article as a "screed" rife with mistakes. Rappaport then argues that the term "freedmen" is race-neutral and ought to be read as referring to former slaves rather than Black people.

Below, I set out the arguments, starting with Justice Thomas, moving to Serwer, and concluding with Rappaport. I then demonstrate the flaws in Rappaport's response (and, in turn, Thomas's reasoning)--arguing that his arguments only succeed by sidestepping context necessary to determine original meaning and using shifting definitional reference points to avoid arguments about original meaning.

Setting the Stage

In SFFA v. Harvard, the Court struck down Harvard's and the University of North Carolina's affirmative action programs. In doing so, the Court concluded that the types of programs employed were inconsistent with the Fourteenth Amendment's Equal Protection Clause. While the majority's treatment of the Fourteenth Amendment's history and original meaning was relatively brief, Justice Thomas authored a lengthy concurrence purporting to demonstrate the original meaning of the Equal Protection Clause and why affirmative action programs are inconsistent with the clause.

In doing so, Justice Thomas defends a "colorblind" version of equal protection, drawing repeatedly on Justice Harlan's dissent in Plessy v. Ferguson. Here's one example of how Justice Thomas quotes Harlan:

For Justice Harlan, the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race—a superior class of citizens,” while imposing a “badge of servitude” on others. (p. 17)

For what it's worth, here's how Justice Harlan discussed the Constitution's colorblindness:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

To very quickly summarize: the colorblind approach to equal protection is important to Justice Thomas (and the majority) because they read the Equal Protection Clause as a blanket ban on any racial distinctions in law. This applies not only to laws that disadvantage or denigrate people on the basis of race, but also laws that are designed to provide benefits to people on the basis of race. A strict, colorblind reading of the Fourteenth Amendment's guarantee of "the equal protection of the laws," therefore prohibits affirmative action programs, which increase the probability of admission for certain applicants on the basis of race.

In arguing that the Fourteenth Amendment's original meaning supports such a reading, one obstacle Thomas confronts is that of laws providing particular benefits and protections to "freedmen," or former slaves, enacted around the time of the Fourteenth Amendment's enactment and ratification. The argument with which Thomas contends is that laws like the 1865 and 1866 Freedmen's Bureau Acts provided benefits to freedmen, and therefore provided benefits on the basis of race. This undermines an originalist reading that the Fourteenth Amendment was meant to be neutral above all else by demonstrating that the same Congress that voted for the Fourteenth Amendment also enacted laws containing racial classifications.

Thomas rejects this reading of the Freedmen's Bureau Acts:

Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “ ‘freedman’ ” was a decidedly underinclusive proxy for race. M. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98 (2013) (Rappaport). Moreover, the Freedmen’s Bureau served newly freed slaves alongside white refugees. P. Moreno, Racial Classifications and Reconstruction Legislation, 61 J. So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The Original Meaning of the Fourteenth Amendment 119 (2021). And, advocates of the law explicitly disclaimed any view rooted in modern conceptions of antisubordination. To the contrary, they explicitly clarified that the equality sought by the law was not one in which all men shall be “six feet high”; rather, it strove to ensure that freedmen enjoy “equal rights before the law” such that “each man shall have the right to pursue in his own way life, liberty, and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322, 342.

In his Atlantic article, Serwer rejects this argument:

“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not. We know this because they said so; the insistence to the contrary is the result of conservatives projecting their version of “color blindness” backwards through time.

Serwer goes on to argue that ninety percent of Black people were slaves in 1860, citing an email exchange with historian Eric Foner. He also points to evidence that supporters of the Freedmen's Bureau Acts, those who debated them, and Justice Thomas himself use the terms "freedmen" and "blacks" independently. These arguments align with points made by Justice Sotomayor in her dissent (pp. 6-8) where she also notes that "contemporaries understood that the Freedmen's Bureau Act benefited Black people" and that the same congress that passed the Act also passed the Fourteenth Amendment.

At The Originalism Blog, Mike Rappaport takes issue with Serwer, arguing that Serwer manages to "include both the main mistakes historians make about the Freedmen’s Bureau Acts and some of the principal slanders against modern originalism." Rappaport also chides Serwer for failing to read his law review article, "Originalism and the Colorblind Constitution," which Thomas cites in his concurrence (a citation included in the quoted excerpt of Thomas's concurrence).

Rappaport argues that Serwer fails to defeat the originalist case for a race-neutral reading of the Equal Protection Clause, focusing on evidence regarding the Freedmen's Bureau Acts:

If Serwer wants to prove his point, he needs to claim that freedmen meant blacks rather than former slaves. But that is pretty difficult, given that the term “freedmen” pretty clearly indicates someone who used to be a slave and has now been freed. Serwer quotes a couple of historians to claim otherwise but their arguments miss the point. For example, Serwer quotes an Eric Foner email stating “Ninety percent of Blacks were slaves in 1860, and everyone knew whom the Freedom Bureau Act was meant to assist.” But that is not the question. The question is whether "freedmen" referred to people based on their color or based on circumstances.

Serwer’s principal argument is that all freedmen were black. True enough, but irrelevant. The question is whether "freedmen" was a category that selected people based on race. It does not. Not all blacks were freedmen. Some had been born free. (And there were no whites, who were former slaves, who were not treated as freedmen.) The Act identifies a category based on circumstances, not race. 

Is the Original Meaning of "Freedmen" Race-Neutral?

With this extensive stage-setting finally done, it's worth taking a step back to look at what it is Thomas and Rappaport are trying to prove. Both zero in on the textual meaning of "freedmen" to advance their points. But it's worth keeping in mind that the meaning of "freedmen" is secondary--the ultimate goal here is how the term "freedmen" informs the meaning of "equal protection of the laws" in the Fourteenth Amendment.

How does this argument function? Those like Serwer and Sotomayor contend that if "freedmen" is not racially-neutral, then laws that explicitly benefit freedmen are therefore laws that provide a benefit based on race. The Freedmen's Bureau Act doesn't involve the exact same terminology of "Equal Protection," but the implication is that if it is not racially neutral, then it provides context for understanding the meaning of other language approved of by the same enacting body. In short, a strict, race-neutral reading of equal protection doesn't make sense if enacted by a Congress that also enacted race-based benefit schemes.

Rappaport and Thomas zoom in on terms and technical definitions to advance their race-neutral reading. Rappaport's point in his blog is a good distilled version of the arguments he makes in his article, and Thomas's reasoning is an even briefer version of the points. "Freedmen" isn't a racial term because not all Black people were slaves (Rappaport does acknowledge in his article that 89 percent of Black people at the time of the Civil War were slaves, and that, of the remaining 11 percent, "some, of course, were former slaves") (p. 98 n.108).

Through this exchange, it's important to track what reference points the parties are employing in defining the term, "freedmen." Serwer and Sotomayor appear to be arguing from an original intent (and, potentially, a limited original public meaning) approach. The meaning of "freedmen," at least as understood among those debating and enacting the Fourteenth Amendment and Freedmen's Bureau Acts, was not race-neutral. Accordingly, a law providing benefits based on freedmen status is a race-based classification. Rappaport purports to respond to this argument, but does so by employing a different reference point: the dictionary definition of "freedmen" as "formerly enslaved person"--a definition which, in turn, does not apply to all Black people (as a small percentage of Black people had not been enslaved). Rappaport seizes on this definitional to argue that the term is therefore race-neutral. But this is unconvincing. 

First, this argument requires one to look past the sheer proportion of Black people who fit into the "freedman" category and the fact that all people in the "freedmen" category were Black. All of this provides valuable context for what those using "freedmen" at the time of the enactment of the Freedmen's Bureau Acts and the Fourteenth Amendment meant: that "freedmen" was a racialized term used to refer to Black people. This is the point Serwer makes when he notes that those in the 39th Congress, and Justice Thomas himself, use "freedmen" interchangeably with "Blacks" and "negroes."

And context is important when determining original meaning. After all, this entire debate over the meaning of "freedmen" is taking place because the meaning of the Freedmen's Bureau Acts provides contextual evidence for or against a race-neutral reading of "equal protection" in the Fourteenth Amendment. It therefore seems quite strange to admit contextual evidence like the Freedmen's Bureau Acts to determine the meaning of the Fourteenth Amendment, while overlooking contextual evidence of the racial makeup freedmen and the low percentage of Black non-freedmen when attempting to sort out the original meaning of "freedmen."

Second, by changing his reference point, Rappaport does not engage with what Serwer and Sotomayor are discussing: the original understanding of the "freedmen" by those in Congress (and potentially the public). In the context of this debate, and most originalist analysis, it is this type of definition--not strained dictionary manipulation--that is characteristic of the original meaning that ought to be employed in the final analysis. Serwer and Sotomayor argue on this level. Rappaport (and for the most part Thomas) do not.

As a result, Rappaport's response fails to engage with Serwer's argument, which relies on context and the understanding of those enacting the Freedmen's Bureau Acts and the Fourteenth Amendment--context and understanding that, despite "freedmen's" dictionary definition of "freed slave," imbues the term with racial meaning. Instead, Rappaport's response falls back on dictionary definitions and notions of inclusiveness, technical points that he fails to connect with the understanding of those in Congress or the general public at the time the Fourteenth Amendment was enacted.

Rappaport suggests that Serwer failed to consult his law review article, so let's not make that mistake. In his article, it looks like Rappaport comes closer to addressing Serwer's point:

Second, while as a formal matter freedmen is not a racial term, it obviously has a strong connection and overlap with race. Thus, even if one does not treat the term as racial, one would still want to closely examine whether the term was being secretly used for racial purposes. There is, however, no reason to believe that the term freedmen was being used in this manner. There is an obvious reason why the Congress might have passed these Acts that has nothing to do with the race of the former slaves. These slaves had been oppressed in the most extensive way and had not received a basic education or learned the trade skills necessary to live self-sufficiently. Moreover, not only did they lack human capital, they also had acquired no physical capital in the form of land or money. Thus, it made perfect sense to provide them with education, food, shelter, and land in order to allow people who had been uniquely oppressed to enter society as free individuals. Further, even if one did not believe that these goods and services were needed to allow the former slaves to live self-sufficiently, one might argue that the benefits could be justified as a limited form of compensation for the harms these slaves had suffered.

Here, however, Rappaport still fails to engage with original meaning and context. Rappaport's initial recognition of the "strong connection and overlap with race" that the term "freedmen" quickly devolves into an inquiry over whether the term was being "secretly used for racial purposes." At this point, Rappaport has already left the debate. Assuming secrecy and subterfuge also assumes that the term, "freedmen" wasn't generally understood to have racial connotations--the point that Rappaport is supposed to be disproving. There is no secret, as using the term "freedmen" in a law is evidence enough that one is making a race-based classification.

From here, Rappaport's line of argument continues afield. He argues that there were reasons other than race to use the term "freedman." These former slaves hadn't received a basic education, they lacked human capital, they had no money or shelter. It's because of these conditions of slavery--not race, that they deserve special treatment.

This line of argumentation misses the point for two reasons. First, Rappaport's resort to the reasons for why Congress passed acts targeting freedmen fail to delve into why freedmen were enslaved and therefore lacked land, money, education, and other resources. They were enslaved because of their race. Accordingly, these alternative reasons remain inextricably connected with race. 

Second, as flagged above, the notion that there's a "secret" effort to target race begs the question by assuming that "freedmen" is not a racial term. But as Serwer argues, and as Rappaport appears to acknowledge at the beginning of this paragraph, "freedmen" is a racial term. In context--in a nation where slavery had just ended, where all the slaves were Black, and where the vast majority of Black people were former slaves--the term "freedmen" has racial connotations. The definitional parsing and claims of underinclusiveness do not engage with this contextual point. As with the previous line of argumentation, the resort to underinclusiveness claims is an unexplained and unwarranted abandonment of the relevant context and fails to refer back to original meaning.

The overall goal of this post was to lay out why it is that Rappaport's arguments appear unconvincing. His point may seem off at the outset, but without parsing out the different reference points involved in the debate and Rappaport's shift to dictionary definitions while purporting to describe original understanding, it may not be clear why precisely Rappaport's arguments fail to land.

The Implications of "Refugees"

This post is already too long, so why not make it just a bit longer? Both Thomas and Rappaport (in his article, at least) argue that the Freedmen's Bureau Acts also provided benefits for "refugees"--a term that both Rappaport and Thomas suggest mainly referred to white people. Thomas's argument on this point is short and fails to explain the significance of the point: "Moreover, the Freedmen's Bureau served newly freed slaves alongside white refugees." Rappaport's argument is more detailed:

Third, the bulk of the provisions under the Freedmen's Bureau Acts provided benefits to both freedmen and refugees. The term refugees would normally include whites, and once it is recognized that virtually all southern blacks would be freedmen, refugees becomes a term that would appear to have been intended mainly to cover whites. If one were concerned that the use of freedmen was an attempt to provide benefits on racial grounds, then the inclusion of refugees should help to quiet that concern. One question that one must ask about a category that overlaps with race is whether that nonracial category is being used as a subterfuge to benefit or harm a race. If the Acts merely provided benefits to freedmen, even though non-blacks were similarly in need of the same benefits, then one might be suspicious of the omission. By contrast, if the benefit is extended to non-blacks in a similar position, there is far less concern of it being a secretive attempt to provide racial benefits. I am skeptical that refugees really were similarly situated to former slaves, but if one did think so, this would quiet that concern. Moreover, there is evidence in the legislative history that refugees were added in part because of concerns that the proposed legislation was seen by some as race-based.

While Rappaport's treatment of refugee benefits is longer than Thomas's, it's still unclear how this proves the point that benefits provided to freedmen weren't benefits provided on racial grounds. Rappaport appears to acknowledge that this point has no bearing on the racial connotations of "freedmen," now acknowledging that all freedmen are Black and suggesting that benefit provision to refugees therefore applies mainly to white people. At the same time, Rappaport continues to argue as though providing benefits to Black people is being attempted via subterfuge--a tactic that (as noted above) assumes the conclusion that "freedmen" was originally understood to be race-neutral. The most apparent issue is that even if "refugee" is a race-neutral term, it's unclear how what bearing its neutrality has on the separate term, "freedmen."

It appears that Rappaport is arguing that the Freedmen Bureau's Act, by providing benefits to refugees, balances out the allocation of benefits "to non-blacks in a similar position" and therefore balances out the provision of benefits to white people and Black people. His final sentence supports this reading, where he notes that there's evidence that "refugees were added in part because of concerns that the proposed legislation was seen by some as race-based."

But if this is the point Rappaport is making, it only succeeds if one assumes the opposite of what Rappaport is attempting to prove, that providing benefits to "freedmen" is the provision of benefits on the basis of race. If including refugees as a separate category of beneficiaries is necessary to accomplish racial neutrality, then any benefit specifically provided to freedmen is a benefit provided on the basis of race. Indeed, from a racial classification perspective, this seems to be even more problematic for Rappaport's colorblind vision, as this reading characterizes the Act as counteracting one racial classification with a second, separate racial classification. 

Problems arise further to the extent that benefits were allocated differently between refugees and freedmen. Eric Schnapper details this differentiated treatment, highlighting "four race-conscious provisions" in the Freedmen's Bureau Act of 1866, including a different scope of overall aid to be provided to freedmen as opposed to refugees, a limitation of the use of land and buildings for education to freedmen only, and certain land protections for freedmen only." (p. 772-73). 

Ultimately, this point is secondary, and gets fairly short shrift in Thomas's opinion. But it's worth mentioning to the extent that it further demonstrates Rappaport's shifting and lack of clarity regarding definitional reference points.

There is much more to discuss regarding the Court's opinion, Thomas's concurrence, and even the original meaning of freedmen. But this post is now far longer than reason demands, and I will leave it to the reader to seek out commentary on those other points elsewhere. I'm sure, as the weeks and months go on, much more will be said.

Did the Supreme Court Just Overrule Korematsu?

The Supreme Court upheld Trump's travel ban this morning.  From the Wall Street Journal:

The court, in a 5-4 opinion by Chief Justice John Roberts, said Tuesday that Mr. Trump didn’t violate the law last September when he put in place restrictions on U.S. entry by people from Iran, Libya, Somalia, Syria and Yemen, a measure he said was necessary to protect national security because those countries don’t provide sufficient information for U.S. officials to assess whether their nationals are a threat. It was his third version of the much-debated ban, earlier iterations of which had been struck down in various parts by the courts. 

Chief Justice Roberts wrote that U.S. immigration law clearly gives the president “broad discretion to suspend the entry of aliens into the United States.” He added, “The president lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”

I am too busy to look into the ruling in depth, and commentators will be dissecting it for days and weeks to come.

But I have seen debate on Twitter as to whether the Court overruled Korematsu v. United States -- a decision that affirmed the United States government's relocation of citizens of Japanese dissent to internment camps during World War II.  I have previously blogged about how Korematsu has been treated as precedent in subsequent cases.

Today's ruling included strong language regarding the case:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

Some commentators think that this means Korematsu no longer has precedential value and has been overruled:

OK, Westlaw. Time to hang a red flag on Korematsu. https://t.co/EfjaZxIRwt

— John Elwood (@johnpelwood) June 26, 2018

But others disagree:

Guys, Korematsu was not "overruled" today. Saying it "has been overruled in the court of history" is a clever way of making it sound like you've overruled it, but the question wasn't presented and no overruling actually occurred. Disavowed maybe, but not overruled. #SCOTUS

— Jason P. Steed (@5thCircAppeals) June 26, 2018

On the "court of history" issue, it's worth noting that the Court has only once referred to the "court of history" (distinct from "courts of history"). From New York Times Co. v. Sullivan:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). (emphasis added).

As the only prior use of this term was to distinguish an issue that the Court had never directly addressed, I see Jason Steed's point. But the Court also notes that the decision "has not place in law under the Constitution," which may be a strong way of stating that the case is overruled. Unfortunately, the Court's effort "to be clear," did not include the explicit statement that Korematsu was, in fact, overruled by the Supreme Court, and in light of the imprecise language (and Steed's further point that the Court also stated that Korematsu "has nothing to do with this case"), the debate over Korematsu's precedential status may continue.

Is Korematsu a Precedent?

Noah Feldman argues it is not in this editorial at the New York Times. Feldman writes:

The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. According to this view, a decision can be wrong at the very moment it was decided — and therefore should not be followed subsequently. 

Justice Anthony M. Kennedy adopted a version of this theory of precedent in his opinion in the landmark 2003 gay rights case, Lawrence v. Texas. Overturning Bowers v. Hardwick, which had held that a state could criminalize homosexual sex, Justice Kennedy wrote that “Bowers was not correct when it was decided, and it is not correct today.” This formulation suggests that it would have been constitutionally wrong in the deepest sense to rely on the Bowers decision even before the court realized its error and reversed. 

. . .

The legal problems ran even deeper. In his opinion for the court in Korematsu, Justice Hugo Black said that it would be easy to rule against the government if the case had involved “the imprisonment of a loyal citizen in a concentration camp because of racial prejudice.” But he improbably insisted that there was no racial discrimination against interned Japanese-Americans because security, not prejudice, motivated the military to order the internments. 

Furthermore, the Supreme Court’s deference to executive judgment on the domestic front in order to overcome the equal protection guarantee of the 14th Amendment would now be almost unthinkable. Under current doctrine, a court would have to give such a government action the highest degree of scrutiny. To the extent Korematsu did not involve this close scrutiny, it has arguably already been overruled sub rosa by the cases that established those scrutiny norms. 

. . . 

As a predictive matter, the Supreme Court is extremely unlikely to rely on Korematsu. It has been widely disparaged by courts and scholars. Congress repudiated it directly in the Civil Liberties Act of 1988, which paid reparations to detainees, and in the Non-Detention Act of 1971, which prohibits the detention of citizens without trial. When Justice Stephen G. Breyer described the Korematsu decision in his recent book as “discredited,” he wasn’t going out on a limb, but reflecting a legal consensus.

The full opinion in Korematsu v. United States is here.

While Feldman does a thorough job surveying how Korematsu has been repudiated by legal commentators, Congress, and judges, I disagree with his claim that Korematsu is not a precedent.

Feldman notes that a case like Korematsu would be unlikely to arise today because "a court would have to give such a government action the highest degree of scrutiny."  While Feldman claims that Korematsu did not involve this close scrutiny, this is incorrect. In Korematsu, the Court claimed that it was applying "the most rigid scrutiny" in evaluating the constitutionality of a policy that curtailed the rights of a single racial group, and noted that "[p]ressing public necessity may sometimes justify the use of such restrictions." Korematsu has been cited repeatedly as the origin of the "strict scrutiny" test for constitutionality -- the most stringent test a law must pass.

Which leads to the clearest problem with Feldman's overall claim that Korematsu is not precedent: the Supreme Court has repeatedly cited Korematsu as precedent. Dean Hashimoto thoroughly discusses Korematsu's treatment as precedent in this article. The Court has cited Korematsu in support of statements like:

• "Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect." Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
• "At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the 'most rigid scrutiny,'" Loving v. Virginia (!), 388 U.S. 1, 11 (1967)
• "But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications "constitutionally suspect," Bolling v. Sharpe, 347 U. S. 497, 499; and subject to the "most rigid scrutiny," Korematsu v. United States, 323 U. S. 214, 216; and "in most circumstances irrelevant" to any constitutionally acceptable legislative purpose, Hirabayashi v. United States, 320 U. S. 81, 100. McLauglin v. Florida, 379 U.S. 184, 191-192 (1967)

Feldman may reply that these citations are to a basic principle that happened to originate in Korematsu, and that even if the opinion were explicitly overruled it could still be cited in a similar manner. Moreover, despite the shock of seeing such a loathsome case cited in landmark cases like Loving, there is a bit of an ironic joy in seeing the ugly case of Korematsu used for the laudable purpose of striking down discriminatory laws.

These points still do not change the fact that no matter how much commentators may protest, the Court itself has repeatedly cited Korematsu in support of its claims. Moreover, the Court has found need to distinguish cases from Korematsu (see, e.g., Kent v. Dulles, 357 U.S. 116 (1958)). While the Court did not rely on Korematsu in Dulles, by distinguishing Korematsu, the Court tacitly granted Korematsu legitimacy as a precedent worthy of note.

Ultimately, while it is unlikely that the present Court would rely on Korematsu to support something as loathsome as internment, the case remains a precedent. Justice Jackson warned us as much in his dissent -- which I wrote about here. Taking such a view of Korematsu should not be confused with granting the case any measure of respect or legitimacy. As Hashimoto writes in the conclusion of his article:

In declaring Korematsu to be living precedent, I recognize that my view is at odds with the position taken thus far by leaders of the Japanese American community. I understand their wishes and desires to declare Korematsu dead, especially after the successes of the restitution movement and the coram nobis litigations. But I fear that there is a great danger in forgetting what should not be forgotten. I believe that it is safer to be honest and recognize Korematsu's continued perpetuation as doctrine than to prematurely declare the conclusion of a noble cause. Korematsu's persistance, as legal precedent and as a memory of the internment itself, must serve to remind us to be vigilant in protecting our civil liberties.

Trump's Presidency and the Supreme Court

Cass Sunstein has this interesting article at Bloomberg View. Sunstein begins by correctly noting that even though Trump will appoint Justice Scalia's successor, this will leave the Court's current ideological balance unchanged. Sunstein then addresses the possibility of Trump replacing one or more of the Court's liberal justices (he mentions Justices Ginsburg and Breyer -- I would add Justice Kennedy in light of his role in recent gay rights and abortion decisions). On that topic, Sunstein writes:

Suppose, though, that one of them does resign. At that point, significant changes would be possible. But probably not many. 

One reason involves the idea of respect for precedent. The justices are usually reluctant to disturb the court's previous rulings, even if they disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, that states can ban same-sex marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal of course, defeating widespread expectations, would make the law seem both unstable and awkwardly political. 

Would a Trump court want to overrule Roe v. Wade, which has been the law since 1973, and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing something so dramatic. 

Would a court composed of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees be willing to grant broad new powers to the president? No chance. The current conservatives have expressed a great deal of skepticism about executive authority. They aren’t going to turn on a dime merely because the president is a Republican. 

There is a more general point. Many judges (and Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on the facts of particular cases. Quite apart from respecting prior rulings, they like small steps and abhor bold movements or big theories.

I agree with portions of Sunstein's analysis. Sunstein's point on respecting precedent is a good one, and is bolstered in the abortion context by the Court's 2016 decision in Whole Woman's Health v. Hellerstedt, a 5-3 decision striking down Texas laws restricting abortion. While two Trump appointees would likely leave the balance of the Court opposed to the Whole Woman's Health decision, a change of course this soon after the Court's ruling would indeed appear dramatically political.

This point about precedent may not hold up in the context of affirmative action, however. The most recent Fisher v. University of Texas case that upheld the University of Texas's affirmative action program was a 4-3 decision, and therefore rested on the opinion of a minority of the nine justices that typically sit at the Supreme Court. Commentators are quick to point out that Justice Kennedy authored the opinion and that Justice Kagan, who was recused, would have brought the majority's total to five justices. But these observations do not affect the fact that the majority consisted of only four justices. Should the Court revisit affirmative action with two Trump appointees replacing any one of Justices Ginsburg, Kennedy, or Breyer, the Court may likely to overrule its prior 4-3 decision with a new 5-4 decision restricting affirmative action.

As for Sunstein's point about incremental change, while he may well be correct, this will probably do little to appease those who wished to see a liberal shift in the Supreme Court. Even if the Court takes the minimalist approach that Sunstein describes, the incremental shifts will likely be to the right, rather than the substantial shifts to the left that liberals were hoping to see under a Clinton presidency.

Finally, to take a brief step into the uncertain and unpleasant world of political prognostication, many commentators expect that Trump will have the opportunity to replace Justice Ginsburg in addition to appointing Justice Scalia's successor, as she is now 83 years old and is unlikely to remain on the Court for four more years. Democrats, however, will likely begin to operate under a time frame of two, rather than four, years as Trump's presidency begins and as his Court begins to take shape. If Democrats manage to mobilize in 2020, they may take back the Senate. Once they have done so, they may well adopt the Republican tactic of refusing a hearing should any seats open up on the Supreme Court. While such an approach would represent a reversal of position for Democrat's who condemned Senate Republicans' refusal over the past many months, they would likely accept this inconsistency in favor of the influence that such a refusal could have on the Court.

I do not like the approach I described above -- whether it is practiced by Republicans or Democrats. But 2016 ushered in a new level of political combat over Supreme Court appointments, and I do not expect these political precedents to be overturned anytime soon.

No, the University of Wisconsin - Madison is Not Planning to Distribute Grades Based on Race

I feel the need to make this seemingly-obvious point because John Leo at Minding the Campus is claiming the exact opposite. From his strongly-worded post:

A remarkable article on the University of Wisconsin (Madison) appeared yesterday on the John William Pope Center site. In it, UW economics professor W. Lee Hansen writes about a comprehensive diversity plan prepared for the already diversity-obsessed campus. The report, thousands of words long, is mostly eye-glazing diversity babble, filled with terms like “compositional diversity,” “critical mass,” “equity mindedness,” “deficit-mindedness,” “foundational differences,” “representational equity” and “excellence,” a previously normal noun that suffers the loss of all meaning when printed within three words of any diversity term. 

But Professor Hansen noticed one very important line in the report that the faculty senate must have missed when it approved this text: a call for “proportional participation of historically underrepresented racial-ethnic groups at all levels of an institution, including high-status special programs, high-demand majors, and in the distribution of grades.” So “representational equity” means quotas at all levels. And let’s put that last one in caps: GRADES WILL BE GIVEN OUT BY RACE AND ETHNICITY.

While affirmative action is a fascinating topic from a constitutional law and federal courts perspective, I typically try to avoid discussing it because of the strong reactions this topic can inspire. But when bad arguments or sketchy claims are made in a debate -- even one involving a controversial subject -- I think that it can be worth stepping in to call out the nonsense.

And if that nonsense is in all capital letters...at that point a reply is all but necessary.

"When the Right to Bear Arms Includes the Mentally Ill"

So reads of the title of this article in the New York Times.  The Times notes that many states follow federal guidelines when it comes to restricting access to firearms to the mentally ill.  This means that in order for somebody to be barred from a firearms license, they need to be involuntarily committed or pronounced legally incompetent by a court.  This is a rare occurrence, which means:

As a result, the police often find themselves grappling with legal ambiguities when they encounter mentally unstable people with guns, unsure how far they can go in searching for and seizing firearms and then, in particular, how they should respond when the owners want them back.

The entire article goes into detail about specific cases of firearm confiscation and state laws that deviate from the federal approach to firearms and mental illness.  One thing that I felt the article did not go into very much detail about was how risk of suicide factored into policy discussions on firearm restrictions.  The article was overshadowed by themes of avoiding harm to others by mentally ill people, but I think that more attention should have been paid to any increased risk of suicide for those who are mentally ill who have firearms.  While the article noted that people with severe mental illnesses may be more likely to cause harm to others, there was very little discussion about harm to themselves.

What the article does do well is capture the difficult issues that firearm restriction policies for the mentally ill raise.  The Times notes that the issue is a "political quagmire":

Gun rights advocates worry that seizure laws will ensnare law-abiding citizens who pose no threat. In Connecticut, with its imminent-risk standard for seizure, the law sometimes “reaches pretty normal people,” said Rachel Baird, a lawyer who has sued police departments over gun confiscations. 

. . .

At the same time, mental health professionals worry that new seizure laws might stigmatize many people who have no greater propensity for violence than the broader population. They also fear that the laws will discourage people who need help from seeking treatment, while doing little to deter gun violence. 

Research has shown, however, that people with serious mental illnesses, like schizophrenia, major depression or bipolar disorder, do pose an increased risk of violence. In one widely cited study, Jeffrey W. Swanson, now a psychiatry professor at Duke University, found that when substance abusers were excluded, 33 percent of people with a serious mental illness reported past violent behavior, compared with 15 percent of people without such a disorder. The study, based on epidemiological survey data from the 1980s, defined violent behavior as everything from taking part in more than one fistfight as an adult to using a weapon in a fight.

Questions of politics that surround these firearm laws are difficult.  Defining how severe a mental illness must be to warrant restriction on firearm possession is a difficult question to ask, and one that involves far more expert input than lawmakers may be willing to carefully consider.

Moreover, the constitutional questions that this issue raises may be difficult -- at least if legislatures end up extending restrictions on firearm possession by the mentally ill.

Existing restrictions on firearm possession by the mentally ill would probably pass Second Amendment scrutiny under the Supreme Court's holding in District of Columbia v. Heller.  In striking down the District of Columbia's firearm regulation as a violation of the Second Amendment, the Court noted that its holding should not be read to threaten existing "longstanding prohibitions on the possession of firearms by . . . the mentally ill."

But this phrasing indicates that the Supreme Court is likely only considering "longstanding" provisions when making this statement, meaning that further restrictions could raise Second Amendment concerns.  Moreover, implementation of these restrictions may be so broad or poorly-defined that a regulation could be enforced in a manner that violates the Second Amendment.  See, for example, the case of In Re Hahn, where the Appellate Division of the New York Superior affirmed a denial of the petitioner's application for a firearm license due to bizarre behavior the petitioner had exhibited -- a result that I argued was based on an erroneous interpretation of Heller's exceptions to Second Amendment scrutiny.

While courts may correctly note that Heller leaves open restrictions on firearm possession for the mentally ill, problems will arise if the exceptions that Heller lists are defined in a vague or overly broad manner.

Automated Surveillance and Police Discretion

Cyrus Farivar of Ars Technica writes that the Boston Police Department has suspended their use of license plate readers.  They note that an investigation by the Boston Globe revealed a number of holes in the program, and some strange practices.  For example, the Globe pointed out that there were instances where license plate scanners would send reports of stolen vehicles, but the police would fail to follow up on these reports:

Beyond providing snapshots of where thousands of vehicles were spotted at given moments, the data indicate that Boston police routinely failed to follow up on repeat alarms. 

Nearly 1,700 plates registered five or more scanner hits over the six-month period, most for insurance violations or unpaid traffic fines. The most-scanned plate came back as a hit for lapsed insurance more than 90 times. 

But some repeat alarms were for serious violations. One Harley Davidson motorcycle that had been reported stolen passed license plate scanners a total of 59 times between Oct. 19, 2012, and March 13, 2013. It was often recorded on sequential days or multiple times in a single day, all by the same scanner and almost always within the same half-hour span in the early evening. 

Boston police chief technical officer John Daley indicated that each of these scans prompted an e-mail alert to the department’s Stolen Car Unit, but there is no indication that the motorcycle was ever apprehended or even stopped.

Privacy advocates generally do not favor the use of automated surveillance technologies like automatic license plate scanners.  This technology, they argue, can be used to collect massive amounts of information on large numbers of people that can be stored indefinitely and used to track people's movements.

A possible silver lining to automatic surveillance practices is that evenly distributed surveillance devices could reduce police abuse of discretion in deciding whether to investigate a vehicle as stolen or in violation of the law.  Police can generally enter in any license plate information they see to their database to determine whether the vehicle they are scanning is stolen or if the registration on the vehicle is expired.

When police make these entries themselves, there is a possibility that they will enter these number in an imbalanced way.  For example, officers may, consciously or unconsciously, run license plate checks on vehicles driven by racial minorities more than they do for vehicles driven by non-minorities.  While these checks minimally intrude on those whose plates are entered into the system, it could result in disproportionate stops and enforcement of criminal laws against racial minorities, since a higher proportion of license plate checks against a certain group will likely lead to a higher proportion of that group being found in violation of the law.

Automatic scanners could partially solve this problem.  By setting up devices that automatically collect license plate information or other information, the decision of whether that information should be collected in the first place is not up to the discretion of a police officer.  While more information on more people will be collected, that information will at least be collected in a consistent manner.  One would hope that the information would be used in a consistent manner -- with uniform practices for following up on violations that are discovered.  This would seem to reduce some of the disproportionate enforcement of laws that could result from police abuse of discretion.

The flaws with the Boston surveillance program that the Globe's investigation revealed show that this hope may be misguided, or at least not guaranteed.  If police choose not to follow up on certain results, then the potential for abuse of police discretion is re-introduced into the system at a higher level.

Boston's program has been suspended for now, but it is likely that automatic surveillance will continue to be employed by more cities and law enforcement agencies.  Going forward, this story should serve as a reminder of the importance of established, consistent practices for investigating and following up on automatic surveillance reports.  And future surveillance programs will hopefully have established investigation procedures in place that will minimize the potential for abuse of discretion.

NSA Reportedly Infiltrated World of Warcraft and Second Life

I am a bit late to the game on this story, but my conflict of laws exam on Wednesday was a bigger priority for me.  But now that the exam is out of the way, I thought I would make a few remarks on points that I have not yet heard emphasized in the coverage I have read.

Earlier this week, a trio of news outlets broke the story that agents from the CIA, FBI, the Pentagon, and Great Britain had "infiltrated" the worlds of World of Warcraft and Second Life in an effort to gather intelligence on possible security threats.  The Guardian retrieved leaked NSA documents on this program from Edward Snowden, and shared these documents with ProPublica and the New York Times.  All of these outlets have reported on the story, and the names of each of the outlets link to their coverage.

The Times reports:

Fearing that terrorist or criminal networks could use the games to communicate secretly, move money or plot attacks, the documents show, intelligence operatives have entered terrain populated by digital avatars that include elves, gnomes and supermodels. 

The spies have created make-believe characters to snoop and to try to recruit informers, while also collecting data and contents of communications between players, according to the documents, disclosed by the former National Security Agency contractor Edward J. Snowden. Because militants often rely on features common to video games — fake identities, voice and text chats, a way to conduct financial transactions — American and British intelligence agencies worried that they might be operating there, according to the papers.

I posted earlier about why I thought that online information can generally be collected without Fourth Amendment problems.  The opinions I voiced in that post apply to the tactics the agents used here, although the characteristics of the fantasy worlds infiltrated in this case raise a few more interesting, and amusing, Fourth Amendment questions.

Upon reading this story, my first thought was whether government agents could "seize" an individual in an online game like World of Warcraft, or if every encounter in the game would be a consensual encounter.  In the real world, police are permitted to ask people various questions, such as their names and whether people are concealing contraband, without implicating the Fourth Amendment.  These are "consensual encounters" -- interactions where the individuals being asked questions by the officers feel reasonably free to terminate the encounter.  These consensual encounters may escalate to a "stop" or a full on arrest -- with the stop requiring reasonable suspicion that the suspect has committed a crime, and the arrest requiring the officer to have probable cause that the suspect has committed a crime.

Could a government agent "stop" another player in World of Warcraft or Second Life?  The players are not physically present next to one another, so the player would not have to worry about the agent following the player or using physical force on the player.  The government agent may tell a player that the agent is, in fact, working for the government and that failure to cooperate or terminating the encounter will result in legal repercussions.  While this might typically constitute a stop, or a full seizure, the online environment in which the encounter is taking place may lead the player to think that the agent is just another player who is lying, so the question of whether that player would feel reasonably able to terminate the encounter is a bit more complicated than an encounter that occurs in the real world.

Also, scholars like Devon Carbado have raised concerns that police tend to focus on racial minorities such as blacks and Latinos, and that this over-focus of law enforcement on racial minorities has led to the main Supreme Court cases that allow police to carry out consensual encounters (see, e.g., this excerpt from Carbado's (e)Racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002)).  Would an over-focus on specific groups in fantasy world encounters raise equal protection concerns?

Police officers' subjective intents in conducting consensual encounters are typically not relevant to whether any seizure is reasonable because courts have held that no seizure takes place in a consensual encounter.  This means that if agents' encounters in the World of Warcraft focus specifically on, say, Orcs (or, in the most recent version of the game, Pandas), there will not be any equal protection concerns (at least, none that the law would recognize).

The government may be right to infiltrate the World of Warcraft.  While the previously-mentioned reports note that the government has not found any terrorists as a result of this approach, it is good to know that the government has an eye on the fantasy world as well as the real world.  Terrorism and tragedies occur in fantasy worlds -- it has been just over a year since hackers figured out a way to kill players' characters and characters in the game and used this exploit to massacre entire virtual cities.

Lots of people are reacting smugly about the NSA's concern with these games.  But as somebody who has seen the harrowing photos of the skeleton-filled streets of Orgrimmar, I am happy that our virtual worlds are going to be a lot safer.

The Legal Implications of Human Enhancement

Via the CrimProf Blog, I learned about a forthcoming article by Susan Brenner.  The title is, Humans and Humans+: Technological Enhancement and Criminal Responsibility, and the article will appear in Volume 19 of the Boston University Journal of Science and Technology Law.

Here is the abstract:

This article examines the implications our use of technological enhancements to improve our physical and/or cognitive abilities will necessarily have on the processes of imposing criminal responsibility on those who victimize others. It explains that while our use of such enhancements is still in its infancy, it is more than likely that their use will dramatically accelerate over the next century or less.

The articles examines how law has historically approached the concept of a “legal person,” with reference to “normal” humans, “abnormal” humans, animals, objects, supernatural beings and juristic persons. It also reviews how two other authors have analyzed the general legal issues our use of enhancements and other technological advancements are likely to raise.

The primary focus of the article, however, is on analyzing how criminal law will need to adapt once our world is populated by two classes of humans: Standard humans (basic Homo sapiens sapiens) and Enhanced humans (Homo sapiens sapiens whose native abilities have been augmented beyond the range of possibilities for their Standard brethren). I assume this very basic divergence between humans because it suffices for my analyses, and because I assume that creating a new species or subspecies of Homo sapiens sapiens is likely to be difficult and will therefore not eventuate in the near future. 

I use various scenarios, e.g., Standard perpetrator-Enhanced victim, Enhanced-perpetrator and Standard victim, to analyze how criminal law can, and should, adapt to a world in which all humans are not equal. I use statutory rape statutes as an example of law that is designed to protect a distinct and vulnerable class of humans, and speculate as to whether this approach could be extrapolated to Standard humans. I also explore the viability of extrapolating other, similar principles, such as vulnerable victims, into this context. And I briefly analyze the possibility that future law might address this situation by implementing a caste system to “protect” Standard humans from their superior counterparts. My goal is not to predict how future criminal law should deal with human enhancement but to note the likelihood that it will have to do so.

I've been interested in the legal implications of human enhancement since I ran across this BBC article on a joint report by the Academy of Medical Sciences, the British Academy, the Royal Academy of Engineering, and the Royal Society.  The report detailed medical and technological developments that would allow people to vastly improve their cognitive and physical capabilities in the future, and noted the need for discussion on the legal implications of these developments.  I am particularly interested in the concern that people who choose not to enhance themselves will be pressured to do so, or discriminated against in the employment context.

The report raises and addresses this concern:

Some commentators have pointed out that individuals who wish to enhance often do so primarily out of an intrinsic desire to enhance; any motivation to derive a positional advantage is secondary. However, Professor Brownsword noted that the nature of work means that any decision to enhance, whether by the employer or the employee, is made in an inherently competitive context; the competitive advantage gained is inescapable. Thus, work might be considered to be a unique or, at the least exceptional, context.  

This view gains further strength when we consider that employees are in a vulnerable position. . . . [T]here is a risk that enhancement technologies could be used as a substitute for improved working conditions to offset a very challenging working environment. Even if enhancement is not formally required, in particularly target-driven situations that look to maximise productivity, if an employer’s expectations are based on the performance of those using enhancers, then employee choice could be compromised. And if we extrapolate further, is it possible that those not using enhancers might eventually be considered ‘disabled’ in some way? There is an established view that a labour contract is different from other types of contract because of the relations of power and authority embedded in it.123 In addition, most employees are unlikely to be in a position where they can select a job and employer based on their rules about enhancement. It is likely that any such rules need to be accepted along with any other terms of employment. (p. 51).

This report and Brenner's article both highlight problems that can arise in very different areas of laws as a result of human enhancement.  I think that both areas are worth studying further, and I think that broader questions of equal protection in a world of human enhancements underlie both discussions, and raise some complicated legal concerns.

Robotic Security Guards

The New York Times reports about the company, Knightscope, and its product, the K5 Autonomous Data Machine.  The robot is designed to perform the role of a security guard or night watchman.  The Times reports:

The robot, which can be seen in a promotional video, is still very much a work in progress. The system will have a video camera, thermal imaging sensors, a laser range finder, radar, air quality sensors and a microphone. It will also have a limited amount of autonomy, such as the ability to follow a preplanned route. It will not, at least for now, include advanced features like facial recognition, which is still being perfected.

 The Times points out that some people are arguing that the robot will take jobs away from low-paid workers.  Critics worry that this robot will take the job of security guards and night watchmen due to its lower cost (projected to run at $6.25 per hour).

The Times also notes that the robot, or at least the company's vision of the robot, is drawing the ire of privacy advocates.  Quoting Knightscope co-founder, William Santana Li, the Times reports:

“We don’t want to think about ‘RoboCop’ or ‘Terminator,’ we prefer to think of a mash up ‘Batman,’ ‘Minority Report’ and R2-D2.”  

Mr. Li envisions a world of K5 security bots patrolling schools and communities, in what would amount to a 21st-century version of a neighborhood watch. The all-seeing mobile robots will eventually be wirelessly connected to a centralized data server, where they will have access to “big data,” making it possible to recognize faces, license plates and other suspicious anomalies.

Li believes that privacy concerns can be addressed by making the data collected by these robots available to the public at large.  

I think that making the information publicly available would not fix the privacy concerns that Li's vision raises.  One worry about increased surveillance is that the data collected will be used for voyeuristic purposes, and making information publicly available will remove safeguards against this that police department policies may put in place.  

More importantly, even if the information is available to the public at large, the areas that these robots would patrol and the information they collect would be a function of somebody's discretion -- and people living in high crime neighborhoods would find themselves not only disproportionately surveilled by the police, but by the public at large.

Same-Sex Marriage, Child Custody, and the Miller Perspective

This week in my Conflict of Laws course we arrived at the subject of interstate disputes over judgments in child custody cases.  This led us to the case(s) of Miller v. Jenkins (or, as our book listed it, Janet Miller-Jenkins v. Lisa Miller-Jenkins).  A good summary of the case from the New York Times is available here, but here is my attempt to lay out the facts in as brief a manner as I can.

The Miller v. Jenkins series of cases arose from a string of complicated facts.  Lisa Miller and Janet Jenkins entered into a civil union in Vermont in 2000.  Lisa gave birth through artificial insemination during this union, but eventually filed a petition for dissolution of the union in 2003.  The Vermont court released a temporary order granting Lisa custody of the child, Isabella, and giving Janet visitation rights.

This is where things got chaotic.

Lisa went to Virginia and sought a court order that she be declared the sole parent of Isabella.  Before the Virginia court released its order, the Vermont court issued a ruling reaffirming its jurisdiction.  Nevertheless, the Virginia court declared that Lisa was Isabella's sole parent and that Janet had no rights of visitation.  The Vermont court then held Lisa in contempt for failing to allow Janet to visit Isabella in violation of the court's custody order.

Litigation ensued, and the courts ultimately decided that the Virginia trial court's decision had violated the Parental Kidnapping Prevention Act (28 U.S.C. 1738A).  Despite this outcome, Lisa continued to refuse Janet's visitation requests and was again held in contempt for violating the Vermont trial court's order.  Each time she was held in contempt, Lisa would appeal the ruling.  Eventually, the Vermont court ordered that Janet be given sole custody of Isabella.

Lisa took Isabella and, with the aid of various religious organizations, fled to Ontario.  From there they flew to El Salvador and ultimately to Nicaragua.  Timothy Miller (no relation to Lisa) was a missionary who flew with Lisa and Isabella to Nicaragua and was later arrested for aiding and abetting kidnapping.  Kenneth Miller, a pastor (also no relation to Lisa), was also involved in the scheme.  He helped purchase clothing to disguise Lisa and Isabella as Mennonites, secured their travel plans, and was ultimately arrested and convicted for aiding and abetting the kidnapping, and sentenced to 27 months in prison.

Lisa and Isabella have not yet been located.

The casebook that presented this case told the story of the case's aftermath in the notes, and noted that it seemed strange that conservative religious organizations helped Lisa as much as they did.  Lisa, after all, had been in a same sex union, which Kenneth and Timothy Miller would have considered an afront to their beliefs.

News coverage of the story provides some insight into the full state of affairs.  Additionally, the pastors and organizations involved in Lisa's flight have blogged extensively on their points of view, and this provides a dimension of the story that seemed lacking in the cases, casebook, and media coverage.  Because this angle of the story investigates Lisa Miller's circumstances (and involves an oddly large number of people named "Miller"), I call it the "Miller Perspective."

Schraub on Sticky Slopes

This is the title of an interesting article by David Schraub in the latest issue of the California Law Review.  It does not seem to be available on the journal's website, but here is a link to the paper on SSRN.  Here is the abstract:

Legal literature is replete with references to the infamous “slippery slope” — situations in which a shift in policy lubricates the path towards further, perhaps more controversial, reforms or measures. Less discussed is the idea of a “sticky slope.” Sticky slopes manifest when a social movement victory acts to block instead of enable further policy goals. Instead of greasing the slope down, they effectively make it “stickier.” Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion with grappling against the problem of inequality to seemingly little effect.

I argue that attentiveness to sticky slopes is important for three reasons. First, awareness of the prospect of a sticky slope can be important in long-term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.

(H/T: Whoever left the most recent issue of the California Law Review on the table in the UCLA Law Review Office)

UPDATE

Here is the link to the article on the California Law Review's website.

Redemption for Iowa’s Supreme Court?

In the midst of the uproar surrounding the Supreme Court’s recent decisions, I nearly missed the news that a different Supreme Court is taking action that is worthy of some attention.  Via How Appealing, I learned of Ryan Koopmans’s post at On Brief.

When the California Supreme Court and Ninth Circuit affirmed the decision of the Northern District Court of California that Proposition 8 was unconstitutional, I was not as vocal in celebration as some of my classmates who were natives of California.  I had just come from Iowa, so I was already used to gay marriage being legal (I had a similar experience with the fierce debate surrounding the failed attempt to eliminate California’s death penalty).  By the metrics of most of my friends, Iowa was ahead of California in a number of important respects – and I made sure to constantly remind them of this fact.

My enthusiasm in Iowa’s progress was dampened, however, by the tendency of the state to take steps backward as soon as it had moved forward.  The legalization of gay marriage was met with the expulsion of three of Iowa’s Supreme Court Justices during their retention election.  But in an action that went beyond popular backlash, the Iowa Supreme Court proceeded to tarnish its own reputation in the case of Nelson v. James H. Knight, DDS, P.C.

In Nelson, the Iowa Supreme Court held that it is not a violation of the Iowa Civil Rights Act to fire an employee because the employer feels personally attracted to the employee.  Even if the employee would not be fired but for his or her gender, there is a difference between sex-based termination and termination based on a personal attraction.  While I am no expert on the Iowa Civil Rights Act, the decision raised some red flags to me because it seemed to put employees’ security at the whim of employers’ sexual desires.  Furthermore, employers could claim a personal attraction as a false justification for firing employees on the basis of sex and it is not clear how the employee would be able to disprove the claim of attraction.

This decision made national news and was met with wide ridicule, even all the way out here at UCLA Law.  My Iowan ancestry, once my claim to fame, became a source of shame.  It is because of all of this that I am happy to see that the court has agreed to rehear the case.  I hope that the Iowa Supreme Court decides the case differently so that I can once again belittle my Californian friends by asserting Iowa’s jurisprudential superiority.