2022 Data Breakdown: Gender Diversity

by Elise Spenner

Although we are yet to receive opinions from the Court in almost 30 cases, the oral argument phase of the term has officially concluded. While we wait for opinions, I took some time to analyze the gender diversity among advocates at the Court this year.

In the October 2022 term, advocates appeared before the Court 155 times in 59 cases on the merits docket. Men appeared 117 times, while women appeared just 38 times. But many prominent advocates, especially men, argued more than one time at the Court, skewing the values above. When accounting only for unique appearances, just 20 women — 19% of the 103 total advocates — argued before the justices.

The expectation should be that every term brings more diversity and more representation to the Court, and this year’s results are dismal by that standard. This term marked a 7% drop in female representation at the Court — in the 2021 term, a somewhat uplifting 26% of advocates were women. This year’s data makes clear the lack of any intentional, ongoing effort to increase the number of women arguing before the Court. 

Many of the female advocates came from the Office of the Solicitors General, and were repeat players at the Court — more specifically, Solicitor General Elizabeth Prelogar argued nine times before the Court this year and Assistant to the Solicitor General Erica Ross argued three times. This repetition helps to explain the wide disparity in the portion of female litigators when analyzing total advocates versus unique advocates.

Nevertheless, it is important to celebrate and recognize the growing diversity of Prelogar’s office. This term, 40% of the advocates from the Office of the Solicitor General were women — a massive improvement from last year, when women made up just 29% of government advocates. And almost all of those women, including Masha Hansford, Yaira Dubin, and Colleen Sinzdak, had the opportunity to argue more than once before the justices.

Because the SG’s Office is a more public-facing institution and represents the government at the Court, there is more social and political pressure for the office to be diverse. The same is not true at private law firms, at public interest groups, and state government offices.

Prelogar, for one, was a constant presence at the Court this term. Because she wasn’t confirmed until late October of 2021, she argued only five times last term. But this year, she appeared nine times before the Court, and always in contentious cases (redistricting, the independent state legislature theory, affirmative action, student debt relief, immigration policy, and religious liberty, for a few). 

Unsurprisingly, Neal Katyal and Lisa Blatt each had the most appearances from a private law firm, arguing five and four times respectively. Katyal argued his 50th case this term, while Blatt reached 56. Despite leaving the reputable Kirkland & Ellis to start his own firm, Clement & Murphy, Paul Clement still argued three times before the Court, raising his lifetime total to 138 appearances.

And Judd E. Stone, Texas’s solicitor general, continued to be a mainstay at the Court. After a shocking five appearances last term as a rookie advocate, Stone argued three more times this session in United States v. Texas, Brackeen v. Haaland, and Reed v. Goertz. Stone is part of a larger — but not very diverse — group of state solicitors general and attorneys general who frequently appear before the Court. Of the 13 state advocates that argued this term, just one was a woman: New York SG Judith Vale.

One fact is painfully obvious: Law firms continue to lag behind in their efforts to diversify Supreme Court litigators. This term, just eight women from private law firms argued before the Court — 13% of the 60 total big law advocates. 

But Williams & Connolly makes clear that diversity does not come at the cost of frequent, quality advocacy before the Court. The firm sent three women to the Court — Lisa Blatt, Sarah Harris, and Amy Saharia — in seven separate cases. In other words, not only has Blatt succeeded, she has brought other women with her and used her platform to raise the bar for diversity at Williams & Connolly.

In contrast, although Hogan Lovells did represent five clients before the Supreme Court this term, every single case was argued by former Acting Solicitor General Neal Katyal. Likewise, Paul Clement was responsible for all three of the clients that Clement & Murphy represented at the Court.

The paucity of female advocates before the Court does not stem from a lack of qualified and able candidates. In 2021, according to the American Bar Association, women made up 55.3% of law school students. That statistic holds true at elite institutions: 54% of Harvard Law School’s Class of 2025, and 52% of Yale Law School’s, are women. And the diversity of the Office of the Solicitor General is clear evidence that women can and will excel before the Court when given the opportunity. 

At large, however, the Supreme Court bar remains an exclusive and inaccessible stratosphere, across not only gender but racial and socioeconomic lines. Somewhere along the legal pipeline, women are discouraged — or, at the very least, not encouraged — to pursue appellate advocacy at the highest levels. We can not condone these disparities as the inevitable result of an old-fashioned, out-dated institution — the same lack of representation would not be acceptable in any other government office or corporate boardroom. There is no reason to hold the Supreme Court to a different standard.

Advertisement

Fourth Circuit upholds Thomas Jefferson High School admissions policy

by Elise Spenner

The fourth circuit yesterday held 2-1 that an admissions policy adopted by Thomas Jefferson HIgh School for Science & Technology (TJ), located in Virginia, does not disparately impact or intentionally discriminate against Asian American students. In writing for the majority, Judge Robert B. King overturned the district court’s decision that the policy violated the 14th Amendment, and laid the groundwork for a potential appeal to the Supreme Court at the same time as the justices deliberate in Students for Fair Admissions v. Harvard University, this year’s landmark affirmative action case.

According to the U.S. News report, TJ is the best high school in the country. Their curriculum includes seven foreign language programs, mobile app development classes, and DNA science and astronomy courses. The school also has 15 specialized research labs and offers activities ranging from orchestra and swing dance to a science, technology, and math journal. The latest standardized assessments found that 100% of students are proficient in math, reading, and science.

Prior to 2020, TJ followed a rigorous application process, requiring that students pay a $100 application fee, have a minimum grade point average, score highly on three standardized tests and writing exams, and submit teacher recommendations. Put simply, TJ’s process made applying to college look easy. But the resulting school demographics weren’t representative of the broader community: 71.5% of the school was Asian American and 19.5% was white in 2019; almost all of the students came from certain middle schools and wealthier socioeconomic backgrounds.

In response to both the COVID-19 pandemic and the reckoning with systemic racism in 2020, school districts around the country made changes to their admissions policies. Most prominently, the specialized schools in New York City and Lowell High School in San Francisco moved from merit-based systems to lottery-based systems following backlash. Similarly, TJ — and the broader group of Governor’s Schools across Virginia — altered their policy in a concerted effort to promote diversity.

Originally, Fairfax County Public Schools Superintendent Scott Braband brought forward a “merit lottery proposal” that would place qualified students (based on GPA) into a regional lottery. He also provided graphs that projected how the new system would alter TJ’s demographics. But this policy was not acted upon by the Board; instead, they adopted Braband’s more moderate “holistic review” measure, which still divvied TJ’s spots up to each “school division,” but selected applicants based only on grade point average, an essay, a skill sheet, and “experience factors” — special education status, English-language learner status, attendance at an underrepresented middle school, or meal-plan eligibility.

The results were profound. The class of 2025 received over 1,000 more applications, and admitted far more low-income students, more geographically diverse candidates, and more girls. But not everybody was pleased with this sea change. In 2021, the Coalition for TJ, an advocacy group of Fairfax parents, sued the County School Board, arguing that the policy unconstitutionally discriminated against Asian Americans, in violation of the 14th Amendment.

There were three main questions before the Fourth Circuit:

1. Does the policy “disparately impact” Asian American students?
2. Was the policy adopted with discriminatory intent? In other words, did the Board intend to harm Asian Americans?
3. Based on our answers to 1) and 2), what constitutional standard of review should the policy face, and does the policy withstand that standard?

The district court, for one, ruled against the policy, finding that it had a disparate impact, was enacted with discriminatory intent, and thus was subject to — and failed — strict scrutiny. The district court’s reasoning went something like this:

1. A “before-and-after comparison” showed a decline in offers to Asian Americans, demonstrating disparate impact.
2. The set-asides for each middle school — and the advantage given to underrepresented schools — skewed the playing field unfairly against Asian Americans.
3. The board acted hastily and without proper consideration in response to concerns about diversity.

The Fourth Circuit reached the opposite conclusion on each question. According to Judge King, there is no specific reason why the set-asides referenced above should hurt Asian Americans — in fact, Asian Americans make up a similar percentage of the student body at both the feeder middle schools and the underrepresented ones. Although the representation of Asian Americans as a whole marginally declined, there were far more low-income and geographically-diverse Asian Americans admitted to TJ under the new policy, he said. Further, the policy can’t be discriminatory, King claims, because it is entirely race-blind. And the process took over four months, with public meetings and “target outreach,” foreclosing the argument that it was rushed. Thus, the Fourth Circuit held the policy to the relaxed standard of rational basis review, and it easily passed constitutional muster.

The opinion closes by paying homage to the Supreme Court’s recognition that diversity — and the subsequent educational benefits — is a compelling state interest. It follows, King wrote, that it is always legitimate to bring a wider variety of student backgrounds to the classroom, as TJ’s policy does. But this tenet that the Fourth Circuit took for granted stands on shaky ground — in less than two months, the Supreme Court will rule in Students for Fair Admissions v. Harvard, with the potential to completely upend established precedent about promoting diversity in schools. In other words, TJ’s admissions policy — and the thousands of policies like it around the country — could be short-lived regardless of what the Fourth Circuit held.

A brief legal history of Washington, D.C.

by Hugo Rosen

Photo courtesy of GPA Photo Archive via Flickr

The United States of America has fifty states, fourteen territories, and one District of Columbia. D.C. operates like a state in many ways and is subject to direct congressional oversight in a manner unlike any other mainland U.S. city. Because most Americans view D.C. through its role as our nation’s capital, we often overlook the legal intricacies of the city itself and its long, complex history. In this article, I will summarize how D.C.’s relationship with the federal government and Congress throughout history has led to our current license plate slogan: “taxation without representation.” Then, in my next article, I will highlight the viewpoints of high schoolers across the country on the best structure for D.C.’s government moving forward.

Article 1 Section 8 Clause 17 of the U.S. Constitution allows for the creation of “[a] district (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States.” This clause has a specific exigence: The delegates of the Constitutional Convention wanted to protect the nation’s capital, a federal area, from state politics. Four years earlier, in 1783, a group of disgruntled continental soldiers had surrounded Congress in Philadelphia’s independence hall, demanding late pay for their services. In dire straits, Congress requested aid from the Pennsylvania militia, which Pennsylvania denied, forcing Congress to flee to Princeton, New Jersey. Wishing to prevent such an event from happening again, Congressional delegates began examining the merits of a capital city ruled exclusively by the federal government. 

George Washington named D.C. as the location of the new capital in 1790 as part of a compromise with southern states. In exchange for choosing a southern-ish city (compared to distinctly northern candidates like New York or remaining in Philadelphia), southern leaders agreed to allow the newly formed national government, led by Washington, to assume revolutionary war debts, despite their concerns over growing federal power. Accordingly, the Residence Act of 1790 established D.C., an unpopulated swampland, as the nation’s capital, and the Organic Act of 1801 formally organized the territory under direct Congressional control.

The plan for D.C. provided by the Organic Act of 1801.

By 1801, D.C. had grown into a small town with permanent residents. Therefore, the Organic Act deprived D.C. residents, who were previously allowed to vote in Maryland and Virginia elections, of the ability to vote whatsoever. Even the mayor, an elected position in most cities at the time, was chosen by the president under the Organic Act’s terms — Thomas Jefferson appointed D.C.’s first mayor, Robert Brent, in 1802. Protesters immediately began to demand representation, eventually pressuring Congress to amend D.C.’s charter and create a popularly-elected mayoralty in 1820.

During this period, Washington D.C. contained four semi-independent subdivisions: Washington City, Washington County (the borders of modern-day D.C.), the independent city of Georgetown, and Alexandria Country. Alexandria Country voted for succession and was returned to Virginia in 1846 due to concerns over representation and D.C. ‘s increasingly anti-slavery attitude. The remaining three entities were united under the D.C. Organic Act of 1891, which created one district ruled by a presidentially appointed territorial government with a popularly elected “house of delegates”.This government was replaced shortly after in 1894 by a three-member, presidentially-appointed board of commissioners who ruled the city directly. Unelected rule, however, angered D.C. residents and sprouted multiple protest movements advocating for greater independence.

Proponents of D.C. independence after 1894 wanted freedom from Congressional control, the right to representation in Congress, and the right to vote in presidential elections. These rights were, and remain, inherent to statehood, making D.C.’s demands unique. Many states in the early 20th century were either reluctant to enfranchise D.C.’s growing African-American population or simply didn’t care enough to vote for change, so commissioner rule remained in effect for decades. By 1960, however, balanced proportions of Democrats and Republicans within the district generated bipartisan support for the least controversial of D.C.’s representation-related demands: voting in presidential elections. The Twenty-Third Amendment, ratified in 1961, granted D.C. “A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.” In other words, the amendment allowed D.C. residents to vote for president like state residents, with the same proportional representation. Of course, this legislation only addressed one of D.C.’s three grievances. Nine years later, the D.C. Delegate Act partially addressed calls for representation in Congress by providing D.C. one non-voting delegate, or “shadow delegate,” to the House of Representatives. Many district residents at the time viewed this arrangement as insufficient because of their delegate’s inability to vote in the House and the complete lack of representation in the Senate, a view which persists today.

D.C. remained under unelected rule until the passage of the 1973 Home Rule Act, which provides the basis for D.C.’s current governmental structure. Home Rule means that D.C., like many American cities, has a popularly-elected mayor and City Council. However, unlike most cities, Congress retains the right to review and overturn D.C. council legislation. This has sparked many controversies over the years, the most recent being the Congressional repudiation of a D.C. crime bill in March. 

Since 2000, D.C.’s license plates have read “taxation without representation.” The D.C. government, and some individual residents, view the current status quo as untenable and continue to advocate for solutions ranging from greater mayoral autonomy to D.C. statehood. In my next article, I will discuss the perspectives of high schoolers around the country on three proposed answers to D.C.’s problems with representation: D.C statehood, cessation to Maryland (except for a small federal district), and maintenance of the current status quo. 

The case for electing state superior courts

by Maxwell Steinberg

One brisk April afternoon, I found myself on the ledge surrounding the granite sculpture in Foley Square while reading Judge Jeffrey Sutton’s 51 Imperfect Solutions, which examines how state courts can vindicate individual rights. Looking up, I saw the New York County Courthouse, and its grand Corinthian-style columns, through a changed lens, unleashing my need to learn more about America’s state court system.

State courts handle more than 95% of all cases filed in the country, determining state law claims on questions of civil liberties, the distribution of political power, and statutory interpretation. Given these stakes, the process of selecting state judges, especially at the reviewing appellate level, is crucial. Currently, only 22 states directly elect their judges, but common sense dictates that every state’s highest superior court should follow this model. This argument may seem in tension with the principle that the judicial role is counter-majoritarian and should not be subject to a partisan electorate, but supposedly merit-based selection systems risk the same consequence.

These “neutral” alternatives entail nominating commissions of lawyers providing governors with a list of candidates to choose from. Don’t let this strike you as entirely above board: Empirical evidence dating back to the 1960s makes clear that these bodies frequently break down into blocks representing the plaintiffs’ bar and defense communities, each with the distinct goal of advancing their clients’ agendas.

Even after the initial nomination, partisan politics remains inescapable. For example, Governor Kathy Hochul’s recent nomination of Hector LaSalle as Chief Judge of the New York Court of Appeals was halted by progressives in the State Senate. Did these members argue that LaSalle, an intermediate state court’s presiding judge, lacked the experience and temperament to serve? Certainly not. Instead, they argued that Governor Hochul should have sought to reshape the court by nominating someone more progressive on criminal justice and union issues.

Some argue that elected judges become harsher on criminal defendants as November approaches, fearing negative campaign commercials. Appellate courts’ roles in determining questions of law, not guilt or innocence, minimizes this concern. Others object that judicial elections do not attract the most qualified nominees, but this rests on the assumption that merit trumps politics in unelected schemes, a notion the LaSalle debacle disproves. Finally, some assert that judicial candidates’ often minimal name recognition allows special interests to easily influence elections with massive spending. Yet, these same groups also dictate judicial selection in merit-based selection states through backdoor deals in governors’ offices and selection boards.

Protests that judicial elections have become “political” are not wrong, but they ignore that the alternatives function as placebos at best and counterproductively at worst. When it comes to state superior courts, there is no cause to replace “We the People” with “We the Legal Academy” in the Constitution’s Preamble.

Interview: Emily Bazelon

by Elise Spenner

Emily Bazelon is a staff writer at The New York Times Magazine and the Truman Capote Fellow in Law and Creative Writing at Yale Law School. She is the co-host of Slate’s “Political Gabfest” podcast, where she spent nine years as a writer and editor before joining The Times. She has written two books, ​​Charged: The Movement to Transform American Prosecution and End Mass Incarceration and Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy. She also wrote and edited for Legal Affairs magazine, and served as a clerk on the U.S. Court of Appeals for the First Circuit. She works at the intersection of legal reporting and narrative journalism, and I took the opportunity to pepper her with questions about writing, editing, universal ethical dilemmas, and the role of social media in shaping our discourse. 

What were you like in high school?

I was super nerdy. So shocking. I bet that’s true for a lot of your guests. I was interested in my friends and in school, and I did some sports, but I also took Latin for five years, which I actually really loved, reading the Aeneid in high school was like a huge highlight of high school for me. 

I know that you had some lawyers and judges in your family. Was law something that you always knew you wanted to pursue in some way? Was law a dinner table conversation?

It was definitely a dinner table conversation. My grandfather was Judge and he was a judge from I think 1948 until the early 1980s, and I was born in 1971. So when I was little I remember him talking sometimes about his cases, and he had this very funny question he would ask me and my sisters, ‘Whether we were ticklish or Jewish,” and we had to pick one or the other and he was very stern that we had to choose in the kind of judge-like manner. But, of course, we were both ticklish and Jewish, so that was a hard choice. And my father is also a lawyer in Philadelphia, so I definitely grew up around lots of discussion of law and politics and policy around the dinner table and just kind of all the time. I didn’t really have an idea that I wanted to go to law school or practice law when I was growing up, but I was definitely exposed to all of that kind of thinking.

At college, what did you see your path as being, at least initially? I also know that you did the Directed Studies program at Yale — how did that experience ground you?

Yeah, I loved the Directed Studies program at Yale, which is kind of a classic Western civilization, it’s a lot like Columbia’s Core Curriculum, very humanities focused. For me, it was very grounding and meant that I read Aristotle and Plato and Virginia Woolf and whoever else. In my future studies, I didn’t do much of that kind of classic Western canon education, but I liked having that base. 

And I did magazine journalism in college; I worked for a yellow publication called the New Journal, wrote stories for them, became an editor there and that was really when I started doing journalism, and I loved it. I loved being out asking questions. I think for me the sort of continuing miracle of journalism is that you ask people questions, and they actually answer, which always seems amazing to me that they do that.

You’ve talked about studying under Fred Strebeigh at Yale. What attracted you to narrative and long form journalism? And then what do you think he taught you that was really helpful?

Fred is a beloved and very well-known presence among Yale undergrads who are interested in long-form writing, although I don’t even think we call it that then. And he is an amazingly energetic, generous, rigorous teacher, and he teaches a narrative journalism class that I loved. And I think doing that sort of magazine writing is like a challenge and a puzzle every time. You have all these different interviews, research you’ve done, all these different ingredients. And you have to figure out how to make a different kind of dish each time. That’s sometimes what it feels like. And sometimes it’s really hard to figure out what the recipe is, like how to put the ingredients together in a way that will be compelling and really pull your readers through. And so I think, for me, the challenge of storytelling, especially about ideas, is just a constant draw and still takes all of my brain power, and that’s what I enjoyed working on in college as well, with Fred.

Did you ever think you were going to be a daily news reporter who was covering breaking news or even doing week-long stories?

I always had a sense of insecurity about being one of a number of reporters in a pack. I never understood the value of me in that situation. I just always thought, “Well, if there are a bunch of other people here, why aren’t they going to do a better job? Why do I need to be here?” So I never did any kind of breaking news reporting or any news reporting in college. And actually, I think that was a mistake, because I think the training you get from that kind of work is very valuable, no matter what you want to do next in journalism. 

And I did end up as a news reporter at a small newspaper in California after college, and that was actually really important. I just learned to write about all kinds of different topics, covered school board meetings, covered the police department in a suburb in California. And you have to pick up the phone, you have to talk to all different kinds of people, you have to throw yourself into things and write on deadline. And I think it was really good for me to do that, and I really recommend that young journalists do that, no matter where their careers are heading. So I sort of feel like my path was kind of backwards.

When you did daily reporting, did you feel like “This is just something I’m going to do for a little while, and then I’m going to get back to narrative journalism”?

I didn’t love it. No, it did not pull me in. I mean, for the same reasons I was talking about. I never wanted to be the congressional reporter or the person covering the city or even covering the Supreme Court, as someone who would be there every day. Honestly, I never wanted to do any of those jobs. I enjoyed aspects of it when I was on a story. One summer, I was an intern at the Washington Post, and I covered a trial for a week, and I enjoyed doing that for a week because it wasn’t getting very much coverage, and I was the person there doing that. So it’s not that I’ve never done that. And actually, it’s funny, today I have a news story I’m hoping to write, so sometimes it’s totally a fun thing to do. 

I love deadline journalism, but it was never my strength. Honestly, it really has to do with my insecurity about competition. It’s super overcrowded. There are lots of people there. My tiny experiences of covering campaigns have always felt overwhelming to me in that sense. So both what I like doing the best and what I think I do well is to go find something that other people are not covering and try to explain why it’s significant, why there’s a compelling human story to tell, why there’s some conflict going on that you might not know about or think you should care about, but I want to try to draw you into.

You got back into narrative journalism, but you also went to law school to have a base of knowledge when writing about the law. I’ve interviewed lots of other legal journalists, and they’re relatively split on the value of law school. Do you think it was worth your time?

Yes. For me, law school was very valuable. It gave me much more confidence, like you said, which, I think for me, was sort of inflected with gender. In college, at one point, I was helping to run what was then the Yale Women’s Center with some other women, and someone from the Yale Daily News came and said, “We don’t have enough female columnists. Would one of you like to do a column?” And I was like, “Why would anyone care about my opinion? Like who, what, why should I sound off about something?” I actually think that’s a perfectly healthy impulse to have to ask yourself, “Why should other people listen to me?” But at some point, if you go into this field, you have to have a little more faith in yourself. You don’t have to be an opinion journalist. But you have to have some sense that what you’re pursuing is worthwhile. And for me, law school was very helpful for that. 

I also just really loved school and was happy to be back in school. And when I went, I was feeling kind of stuck as a journalist. I had been at the small newspaper, and as we were talking about, I didn’t really want to go work for a bigger newspaper that much. I couldn’t really figure out the path back to magazine work. And so I thought, “Okay, well, I’ll go to law school and maybe I’ll be a lawyer, maybe it’d be better to do things as opposed to writing about other people doing things.” And I really enjoyed law school and felt like the ideas in that world were very animating to me. So then what ended up happening was I didn’t want to practice law. I figured that out pretty quickly. But I stuck with it. I was really enjoying being in school. I had a baby toward the end, and that timing for me, actually, was good. I did a little bit of freelancing on the side while I was in law school, and so then after I clerked, I went back into magazine journalism.

Do you think having that legal background gave you a unique niche in magazine writing or at least an ability to be like, “I know about this, and I have the authority to cover it”?

I do think that for me, it was really helpful. Both confidence building and actually as a base. I don’t think it’s necessary. I always want to say that to people. Even if you know you want to cover law, you can teach yourself all about the law. Nobody remembers all the generalist things they learn in law school or any school along the way. And some of the best legal journalists never went to law school, and their work has not at all suffered for it. And so I always want to make that clear. But, for me, given my own combination of characteristics, it was great, and I have no regrets about it and feel like I was really lucky to get to go.

You went to work at Legal Affairs after law school. What was that magazine doing that didn’t really exist at the time in legal journalism and narrative journalism?

So Link Kaplan started that magazine. He was a former New Yorker writer and US News and World Report editor, and he had come to law school to teach, but for the project of starting a publication, and the idea was that it was going to be at the intersection of law and life and have ideas-driven stories, but also very much human-driven stories in it, and that it would appeal to lots of people who follow courts and legal coverage, in and outside of the legal profession. And so when I found out that Link was at Yale Law School, where I was a student, I knocked on his door and said, “I would love to be a research assistant.” And so, thus began what for me has been an incredibly beneficial mentoring relationship, where I took a class that Link taught and then I came back and worked for him on Legal Affairs with an enormously talented group of young journalists. I mean, really, an amazing group that’s gone off to be stars in many ways. And it was really fun. We created this new publication that we just had a great time working on.

What do you think was the biggest or most important thing you learned from that experience of starting small and doing it yourself, while also working under a more experienced journalist?

What I feel so lucky about was that I both got to edit and write. So I learned how to be an editor, which is a more marketable skill, and which got me my next job at Slate. I went to Slate as an editor, not as a writer, but then I also got to do some long-form work. I wrote about the Israeli Supreme Court, the South African Constitutional Court, and various other stories along the way. And because Link is such a good editor and thinker, I kind of absorbed what he had to teach me. And then I have this amazing group of colleagues. I mean, really. I think magazine journalism is kind of mercurial and difficult — figuring out how to pull from writers their best work, how to structure stories, how to think about it — and we had each other as colleagues to figure all that out.

Did you like editing? What skills as a writer transferred over to being an editor and what was totally foreign to you?

I do like editing. It’s hard. What I like about it is that it’s like a puzzle. It’s sort of like someone else has given you the building blocks for something, and you have some distance from the material. And so in some ways, I actually found it easier. It was a little more abstract. When I’m the one doing the reporting, I get very caught up in my relationships with the people I’m writing about. I think about their feelings. I get really invested in making sure that other people are going to want to read about them. The emotions just run much hotter. And editing, I can do with a cooler head. 

I didn’t want to keep doing it forever. And I haven’t been an editor now for like nine years, since I went to the Times Magazine, but I teach writing at Yale Law School, with Link, actually, and that is still really I think an editing job. Most of the value of the class we teach is in the comments that we give to students, and when I’m working on their pieces, I really think of it as like the way that I used to edit at Legal Affairs, where I edited short and long pieces, and also at Slate, where I really did short pieces.

You talked before about the insecurity regarding whether people will actually care about the things you write, whether it’s a column or a magazine piece. How do you overcome that fear?

That’s a great question that I think many of us struggle with — or at least, we probably should struggle with it, because the biggest challenge is getting someone to stick with you on the page. I think some of it has to do with the idea you come up with in the beginning: How good of an idea is it? And then, what story do you find to tell? So, maybe there’s a subject you want to explore, but that’s really just like having a topic for a paper as opposed to a story to tell. 

The way I think about it is that if you’re an ideal long form writer, you have three strengths: You have a really compelling idea, you have amazing reporting skills, and then you have a lot of narrative storytelling power. And I think most of us have, if we’re lucky, two of those three things as very well-developed muscles, and then one of the legs of the stool is a little weaker. And then you have to try to compensate for that third part. And often, in terms of really getting people to respond to your work, it is the storytelling part that counts the most. So I try to be very aware of that when I’m putting together pieces, so that there’s a character, someone that readers can either identify with, whether they love them or hate them, that’s going to fascinate them enough to take them through what for me often turns out to be very dense material. Legal issues are dense and tricky, and they can be alienating to readers, because it’s just complicated. So you have to explain things very clearly, I think that’s part of the trick, and then you have to pull a thread through the material that they really want to follow.

What are your two strengths, and what’s your weaker leg?

I’m a better reporter and a better analyst-thinker than I am a storyteller. So I’m always thinking about the storytelling part. And the material that I choose, as I was just saying, tends to be heavier, so then that puts more burden on the storytelling, and in my most successful stories, I think I have found a character, a narrative that tells itself to some degree as opposed to having to force the drama into the piece, which sometimes is a challenge. 

And obviously, if you’re doing something short and analytical about a Supreme Court case, you don’t need the same kind of strengths. But I think anything that’s over, I don’t know, 2500 words, usually needs something that is more than just the ideas and the research and reporting you’ve done.

You talked about trying too hard to jam a heavy legal topic into a narrative story that isn’t exactly aligned with it — do you sometimes feel like you’re abusing someone’s narrative as a tool to tell a legal story? Should we feel bad about that, or is that merely “focusing on the human angle” of the story?

That’s a great question to ask. I think that when you’re telling stories of people who are not paid to talk to you — in other words, it’s not their job, they’re not regular subjects, they’re not politicians running for office, when you’re in that situation with regular people — I think it’s important to find people who want their stories told. Unless there’s a really good reason why you need to have them there. And that can happen, but mostly you want to find someone for whom there’s something empowering about having their story out there. 

And then I think that creates a different dynamic, right? Because you’re always using the story in some way, and it’s important to remember that you’re not the person’s friend; you’re a journalist, you have your own agenda, and you’re serving the interests of the reader, not the subject. At the same time, if someone wants to have their story told, particularly if something difficult has happened to them, or there’s some reason why they’re vulnerable, that’s just an easier position to be in, ethically and morally, I think. 

And then I think another question you have to ask yourself is whether you’re telling the story because it’s unusual, or whether you’re telling the story because it represents some larger phenomenon that you’re writing about. And those are both totally acceptable answers, but it’s important to be clear, and to make clear to the reader which purpose the story is functioning in. So that’s part of how I think about this very interesting, continuing, core ethical dilemma of journalism: Why are we taking other people’s stories, and what are we doing with them?

What is a story you’ve written where you’ve done that really well, or that’s worked out well?

I did a story a bunch of years ago about two young women who had been victims in a really terrible, harrowing way of child, non-consensual sexual images. So when they were little girls, people had taken pictures and videos of them that went rampant on the internet in a way that was illegal for people to circulate; we used to call this child pornography. And that was very damaging to them because when they grew up, they found out that their images were everywhere, that people they met on the street could have seen them as kids being raped. And so it was a really hard story to tell, it was very dark what had happened to them. But they were going to court to seek restitution from men who had abused them and seen their pictures. And that was really important to them as a story to tell and as a way of taking control over their lives. 

It was a case that I think I read like a paragraph about somewhere, but nobody had really gone into depth about this whole fight for restitution. They had not been approached by journalists before, and they really wanted to do the story, though they didn’t want their names in the piece, for kind of obvious reasons, they were trying to go on with their adult lives. The story was dark, but I think had a very, very compelling thread because they were amazingly thoughtful about their experiences, and then it had these interesting ideas in it as well about the rule of law in this kind of situation. And so I feel proud of that story.

You’ve talked about when your writing has a super clear and direct impact — someone is exonerated, or receives citizenship. Are you attached to creating change through your reporting? 

I’m not attached. Usually, nothing happens. It’s really hard to be able to trace direct impact to a story. I’ve had that experience, and it can be incredibly rewarding to feel like you’ve pointed out an injustice, and someone tried to correct it, or anything of that dimension. But honestly, what I really hope when I write is that I’m going to grab people’s attention enough that they’ll think about what I was trying to get them to think about. And maybe there will be some indirect consequence of that that I can’t see that’s down the line. Maybe some policymaker will bring the story to their boss, and that will make some change in the world, or give voice to people who lacked that voice before. Or maybe people will vote in some way that they were enlightened by my piece and that informs their choices. So all of those aspects of citizenship are what I’m driving at, and I very rarely have any other particular result in mind.

So it’s an added bonus, not something you can expect.

Yes, especially if you write about dense legal topics.

Because you write about such dense and serious — and sometimes controversial — legal topics, what are your strategies for dealing with negative feedback and reception?

I try really hard to take seriously and think about criticism that seems like it’s in good faith and is really engaging with the work I’ve done. And then I try to be tougher about criticism that seems like it’s not necessarily people who have read the whole story that I’ve witten; that happens a lot, that people react to headlines or they react to what other people have said that a story contains. So when I see that kind of criticism, I try to figure out how to deflect it and withstand it. Because especially in our world of social media where a minority of loud voices can be very influential and they can kind of colonize the brains of journalists, it can be kind of paralyzing. 

You’re not writing for the people who tend to have the strongest reaction to your work; you’re writing for a bigger audience. And often the larger audience is quite appreciative and more neutral or wrestling with the ideas, but you haven’t necessarily served the agenda of the people who cared the most about the issue, whether you’re on the right or left. And they’ll let you know that very loudly, especially in our age of Twitter. And I don’t think that’s good for journalism, or journalists. I think we need to stay on this path of serving a broader readership.

What is the difference between legitimizing “both sides” of a story and actually honoring every perspective in a story?  

This is another great question, and it’s not a dilemma that we’re ever going to solve. Because in a lot of ways, it just depends on the particular story or issue you’re covering. And you always have to remain open to different modes of telling a story. So here’s one way I think about this lately. There are a few questions that are really settled, and there are not two sides to them. So: Is global warming happening, and is human influence a major reason why it’s happening? Yeah, there’s a scientific consensus about that. There’s not a scientific consensus about what to do about that, because that’s not even really a science question, it’s a policy question that has to do with people’s priorities and values and how to think about the future when climate change could really be devastating versus the present and the claims of people, particularly people in developing countries, who, if we pull back on carbon consumption, might not have their standards rise to the degree that Americans, who’ve caused so much global warming, have already experienced. So if I was writing about climate change, I would treat the causal scientific question as settled, and I would not feel as if I had to include the perspective of climate change deniers. But it wouldn’t be that interesting to write a piece right now that was just like “Climate change is happening and humans are causing it.” So I would probably be drawn to a more nuanced, unsettled question, and then I would want to include a lot of different perspectives on it, or at least the perspectives that seemed valuable to me after I had done a lot of reporting and actually and a sense of how the field shakes out.

So I think that’s what journalists have to offer. It’s that spirit of open inquiry and then some sense of context, so that you’re putting your story, which is usually a small slice of some larger issue, within the historical and scientific and maybe legal context, and making that clear to readers. So they understand what the people you quote are doing in the piece. Even if the person is saying something really offensive or wrong in your view or against someone’s human rights, you may still need to include that perspective so people understand that that is still a view that has some political power. But at the same time, I think usually you want to figure out some way to signal that that person is doing something in the piece that represents a point of view, not necessarily the correct point of view. But that’s hard, because when you’re covering anything that’s politically controversial, you also want to just let people speak without telling readers what to think about it. I sometimes think we don’t give readers enough credit. The whole idea is to present different points of view and let people make up their minds, and so you don’t want to be super heavy-handed often.

Do you think social media, like Twitter, is a net positive? It obviously democratizes access to information, but it also promotes extremism and allows people to take stories out of context.

I think that it’s a net-negative at this point. I’m all for the democratizing part of social media; I think that’s great. But when you look at what it’s done to the discourse, and also the ties to ethnic violence and anti-democratic campaigns and autocratic regimes, when you look worldwide, it often has a really malevolent influence on the politics of countries. And it’s become a real tool for spreading disinformation in a way that I’ve written about and feel quite concerned about. So there were moments of real optimism — the moment of the Arab Spring, I felt like, ‘Oh my god, people are using social media to organize against these autocratic regimes, and they’re going to succeed and the government’s are clumsy and flat-footed and can’t figure out how to fight back.” But I think actually, those governments have figured out how to fight back, and that often disinformation and the way that rumors that someone of a different religion killed someone else, and then you have revenge and violence, I think those things are really, really troubling on social media. Really, I’m talking about things to some degree in the United States, but also in other parts of the world. 

And then I think, for our discourse that the way in which social media distorts debates, and can become a tool for wielding disinformation for revenge campaigns against people, for trolling, for mobbing, I think that at this point, it’s doing more harm than good. Personally.

I think most people probably would agree with you. But obviously, there’s still a lot of people on Twitter.

Totally. I mean, what’s happening to Twitter is sad, and it’s not like it’s all bad. There’s certainly loss for people for whom it’s been empowering, and who found an audience. And for kids in rural parts of the world who are alienated from their peers, especially kids from the LGBTQ+ community, it can be awesome. So it’s not like I don’t see any benefit. There’s totally a benefit. I just think at this point, the bad probably outweighs the good.

I want to ask you a couple questions just about your long-form writing strategies. How do you capture the personalities of people when you’re writing, while also trying to clarify a legal issue as much as you can?

When I’m working on something that’s longer term, sustaining relationships with people is really, really important. So in my book, there are two main characters, both people who’ve been caught up in the criminal justice system, and those relationships were years-long relationships because I wanted to follow those characters over time. And so I think in a lot of ways, the big thing — I don’t know if it’s a tactic — is just honestly calling someone back a million times. And getting them to stay in your life too, right? Because people have other things to do than to talk to journalists. 

Sometimes I feel like when I meet someone, and I know I want to write about them, it’s like they think they’re on a date, and I think that we’re about to get married and be together for many years. And I’m afraid to come on too strong because if you say to someone on a first date, “Hey, I want to get a long term relationship with you. I’m not going anywhere; I’m going to be calling and texting you for forever,” they might be pretty freaked out. So figuring out how to maintain those journalist-source relationships is important to me. 

And then I think there’s an act of translation with complicated issues, and for me, complicated legal issues. What I find is that the first time I try to explain something complicated, I think that I’ve done it clearly, but it’s not as clear as it can be. And that what you want in magazine writing is to get to something that eventually is crystal clear and often has as few words as possible. And so that’s the goal, but I’ve gotten a little more patient with myself to realize that my first crack at it, as hard as I’m trying, is probably not going to be the finished product. And that’s also where editors are really important, and your friend.

Because you’re still very caught up in all the legal issues yourself and very absorbed in it, so it might look clear to you. But for someone that has no background in it, it does not.

Totally. And often, you think you have to explain something with more complicated parts to it than you actually have to. You need to understand it, but you don’t need to say it all. And then you have to figure that out. 

In that long-term relationship, how do you make sure that you’re not getting super attached to a person’s story in a way that compromises it or is unethical? And I know this is another universal journalism dilemma. 

Well, it’s funny that you said close with your story instead of close with your subject. Because I actually think it’s great to be close with your story, you want to live and breathe the story, but you’re totally right that there are risks of being too close to your sources because you can’t put their interests ahead of the readers interest in the end, and also because you don’t want to fool them. And sometimes what happens when you stay in someone’s life is that they start thinking of you as a friend or even a source of support because you’re there, you’re always going to pick up the phone, you’re always interested, you’re always listening. 

And now I’m going to switch to the first person: I am always happy to listen, but I am not trained in psychology in the slightest. I’m not a social worker, I’m not really going to help in some professional sense. And so I think I try to gently remind people that I am not their friend. That doesn’t mean I don’t care about them and don’t feel affection for them or look forward to being friends with them when the story’s over and the journalistic relationship is over, but in the moment, I’m not their friend. I think you actually have to remind them of that, in some ways. It’s not just obnoxious. And that’s a little awkward and difficult sometimes. 

This is a social media thing, but when I started writing about teenagers, Facebook was really big. And what you do to follow someone on Facebook, obviously, is you “friend” them. And that’s a weird thing to do as a journalist, and so sometimes I just wouldn’t do it. I would try to figure out a different way to check their page, but if I did “friend” them because they had invited me to, and it’s just an easy way of keeping track with someone, I would say to them, “Don’t forget, I’m not your friend.” Even though that, as I said, can come off as sort of rude. 

I think it’s a hard line that we all navigate. And you have to just remind yourself all the time that there’s another human being and that your interest in them is partly because you’re just interested in them, but really partly because you are serving the interests of your readers, and you try to always keep that in mind while being as fair and compassionate as you can be.

You cannot in good faith be a friend to them, because your position is compromised by the fact that you’re writing at the same time.

Yeah. And you’re getting paid, and they’re not. And there’s nothing fair about that from their point of view, particularly. There are lots of good reasons for it, from our point of view, but  there’s nothing that’s just about that.

When you’re writing a long-form story, do you know when you’ve found the person you’re going to spend the rest of the piece writing about or that key narrative that’s going to drive it?

It’s much better if you know. It’s exciting when you think you know, because then you feel like you have really good material, and then you’re invested. And then, of course, you get nervous about whether the person is going to dump you along the way. This is like the Janet Malcolm Journalist and the Murder insecurity and anxiety, which I think journalists, who do long-form work really have. But when you have something that feels to you like the story you want to tell, it’s incredibly exciting.

Have you ever been in a situation where you get really excited about a source or a story and then they drop you or just stop wanting to work with you?

I’m sure that has happened to me. I mean, it’s happened to all of us. I think the reason I can’t think of an example right now is that you try to just move on and block it out. Those are the stories you didn’t get to tell. 

Part of it for me is that I almost always am interested in the stories of regular people. And so, for example, in my book, I needed people who’d had interesting, dramatic, harrowing experiences in the criminal justice system. There are millions of people who have had such experiences. And so I could have pursued someone who wasn’t interested in talking to me, and I probably did, but then I found the people who were interested in talking to me whose stories I wanted to tell, and I got to tell those stories, and they’re the people who are memorable to me. 

Nora Jackson is one of the characters in my book, and I also wrote about her for the Times magazine. I learned about her story from reading about it. I was actually really interested in writing about the District Attorney’s Office in Memphis that had prosecuted her. But when I first wrote to her, she didn’t want to talk to me. And I put like 10 months into correspondence: She was in jail, I was corresponding with her, I was trying to talk to her on the phone, she’d had negative experiences with other journalists, and she had lots of reasons to be weary, not of me, particularly, but just generally. And when I went to Memphis to first go talk to her in jail, I wasn’t sure if she was going to agree to see me. And she actually almost didn’t, and so that was probably the closest I’ve come to losing a story I really wanted to tell. But in the end, she is someone with whom I am still close, many years after having written about her.

I almost feel like I’ve done better journalism if I’m writing about someone who didn’t want to talk to me in the first place. And then I coax them into doing it. But it seems perfectly valid to talk to someone if they want to talk to you; in fact, that should be better. 

Interesting. I think you should get over that, probably. Sometimes, it’s true. I mean, sometimes there are people who are elusive, and the reason they’re elusive makes them super interesting, And sometimes the people who are most eager to tell their stories, that fact about them makes them not representative, or self-promoting in a way that feels false. And then you do want to stay away from those people; I actually think that’s really true. But I also think that there’s some kind of Goldilocks in the middle, sweet spot you want to find. At some point they have to want to do it, that’s all. 

Last question. Correct me if I’m wrong, but you teach both creative writing and law at Yale Law School. How does that work together? How do you convince people that those things go hand in hand?

Well, you’re saying that because I have this funny title at Yale, I’m the Truman Capote fellow for law and creative writing. This is true. I didn’t come up with that title, and I’ve never objected to it because creative writing is such a funny phrase to use at a law school. It’s something you almost think of more from elementary school, and I kind of like that about it. What I actually do is teach students how to do opinion writing and book reviews and essays for a general interest audience. The idea is that there are a lot of law students who are interested in that kind of communication, maybe because of the work they want to do, maybe because they were journalists in college or fiction writers, and they want to keep writing for personal reasons. Maybe they have public policy positions they want to be able to express in an op-ed. And so that’s the kind of writing that we work on in class, and it’s pretty creative. Like they write first-person essays, and they’re fun and light and go in all kinds of directions. And some of it’s much more like, “This is an 800-word standard op-ed, and I’m going to talk you through this.”

Okay, one more question. That seems like the perfect kind of niche for you — maybe a class that you would have taken when you were in law school. What is the most rewarding part of getting to work with those students on a regular basis?

Oh, well, I mean, seeing people’s work develop. They often come with exciting learning, maybe they’re in a clinic, and they’re helping to represent clients, or they’re learning about a particular corner of veterans affairs, or they have some academic research they’re working on and they want to reach a broader audience, but they need the tools to learn how to do that. And so it’s totally rewarding. And also, students are great. Students are like you; they’re young, they’re smarter than I am. They’re open to the world in different ways. They make me see things differently. So I love all those things. And also, I teach a seminar, generally, and when the class discussion goes well, and you feel like people’s brains are really engaged and they’re being honest, and they’re challenging each other and making each other think, that’s a reward too. Just that atmosphere in the classroom.

Interview: Sai Prakash

by Hugo Rosen

Saikrishna Bangalore Prakash is a James Monroe Distinguished Professor of Law and teaches at the University of Virginia. He has  authored several books on presidential power, including The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers and Imperial from the Beginning: The Constitution of the Original Executive. Prior to entering academia, Professor Prakash clerked for Judge Lawrence Silberman of the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas.

What first attracted you to the law? 

I studied political science and economics in college, which was a natural fit for me. Once I got to law school, I very much enjoyed it and learned a lot. 

You’ve clerked for Judge Laurence Silberman and Justice Thomas. What did you learn from these experiences? 

Judge Silberman was an excellent teacher and mentor; clerking for him was my first full-time law job. He spent a lot of time with us. And, you know, he had been a judge for quite a long time, appointed by President Reagan. Justice Thomas was a very similar experience. I spent a lot of time with him; he has been a mentor ever since. I definitely learned a lot about the law and a lot about legal interpretation and the role of judges, at least their perception of what that role ought to be, from both Judge Silverman and Justice Thomas. 

You’ve written a great book about executive power, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers. How would you say the institution of the presidency has changed since Washington’s inauguration in 1789? 

That’s a big question. So, the presidency is an executive institution. Executive institutions are principally involved in executing the laws made by someone else, in this case, Congress. And so, the president’s principal function is to supervise and direct law execution. But there are other things the president can and must do. He’s the Commander-in-Chief of the Armed Forces. He has to share information with Congress. He has some authority over foreign affairs. And he can detail legislation, which gives him a role in the lawmaking process. These are all adjuncts to the law execution function.

Concerning foreign affairs, the president has specific powers related to treaties and sending ambassadors in the Constitution. But the original idea was that the president has unilateral authority where authorities are not given to Congress and are not checked in Article Two. This traditional conception of executive power encompasses law execution and other things like foreign affairs, appointments, removal, and pardon power. So, authorities are given to the president in some cases and checked in others. That focuses on what the president could do in the 18th century. It’s also important to focus on what he couldn’t do, what the institution couldn’t do. And what the institution couldn’t do was rewrite the laws. 

The Constitution says presidents must faithfully execute the laws, not rewrite them. The presidential veto reinforces this idea. Since the president has a veto, the implication is that if they don’t use it or it’s overridden, they must abide by the statute Congress passes. If the president could rewrite statutes, that veto wouldn’t be necessary as an independent instrument. The 18th-century president needed the Senate’s consent to make foreign treaties. In the 18th century, Congress was thought to be the branch that would respond to emergencies either with legislation during the emergency or with ex-ante, meaning, beforehand, legislation that empowered the president to take his own action. The president really had a limited amount of authority over emergencies. 

An 18th-century president needed congressional approval to wage war. The Declare War Clause grants Congress the authority to decide whether to wage war and to declare war in the 18th century was to wage war. The president’s role was limited to making recommendations. He couldn’t wage war on his own, and he couldn’t disobey congressional declarations of war. So that’s the 18th century. Today you can see that presidents have a much more significant role in legislation than they did in the past because they are more likely to use the veto and communicate with Congress throughout the legislative process. The Constitution says presidents can make recommendations and then veto, sending objections back to Congress. What presidents do now is tell Congress that if they pass this bill, I will veto it. This obviously influences what Congress does, meaning that many bills the president would’ve vetoed never make it to his desk in the first place. 

Modern presidents are more willing to stretch statutes to accomplish their policy goals. For example, presidents started claiming the authority to go to war without congressional approval in the late 20th and early 21st centuries. So we have several conflicts the president inserted the United States into, such as Korea, Libya, and, more recently, Kosovo. These are all wars as the Constitution understands wars, except they were initiated without a congressional declaration of war or authorization to use military force. 

Another significant change is that the president is now seen as his party’s leader and endowed with a mandate from the people. That’s a radical departure from the 18th century. The founders didn’t want political parties to arise and didn’t foresee the president becoming his party’s undisputed leader. Today that influences how Congress reacts to the president and how the people perceive him. Having won their election, presidents now claim a popular mandate in a way that wasn’t true in the 18th century and use this mandate to support their legislative agendas. Being a party leader means that presidents have a significant part of Congress predisposed to favor what they want purely based on party affiliation. Republicans have a hard time crossing Donald Trump, and Democrats have a hard time crossing Joe Biden. This changes our perception of the presidency. Unlike in the 18th century, we now think presidents should be able to solve every problem in the country because they run on that platform. Those are some ways in which the institution has changed. 

Do you think the partisan affiliations you’ve described weaken the efficacy of checks on presidential power like impeachment? 

I think the president’s role as the party leader actually strengthens the presidency because it generates support in both chambers for the president’s policies, almost without regard to what they actually are. However, it does accentuate criticism by the opposing party. For example, suppose a president has 40% or 50% support in a chamber. In that case, he and his party can stop investigations and convictions in the Senate. 

The Constitution says the punishment for a president committing a high crime and misdemeanor is removal. However, you’ll often find members of Congress who say, “I don’t think he should be removed for this.” And that influences whether they characterize his actions as high crimes or misdemeanors in the first place. During the Clinton trial, some Democrats said, “Well, I think he did this, but I don’t think he should be removed for it.” They thought Clinton’s actions were impeachable but not enough to warrant his removal. 

Impeachments are easy because you only need a simple majority in the House of Representatives. But conviction is another thing entirely; it’s very hard to do. No executive branch official has ever been convicted in the Senate. They’ve been impeached but not convicted. And when I say official, I mean everybody. Not just the president but also secretaries and other impeachable officials. The only people that have ever been convicted are judges. 

Regarding executive punishment, could the indictment of former President Donald Trump set a new precedent for how presidents are treated once they leave office? Could this change how they act in office? 

I don’t think it will change how they act in office. After all, Trump wasn’t indicted for anything he did while president; he’s being indicted for his personal finances and acts. I do think that every time something happens to a high-level governmental official, it creates a precedent that will then be cited by the other side. You can weaponize investigations and prosecutions; some say that Congress has already weaponized investigations. 

I think further weaponization is certainly possible as Republicans come to the conclusion that the New York indictments, at least by their account, are political. In that case, Democratic prosecutors may have opened up a pandora’s box of weaponized prosecutions. We could see prosecutions of Hunter Biden at the state level. We could see prosecutions of other former presidents. There’s really nothing in the Constitution that directly addresses whether you can prosecute a sitting president.

Why do you think that no sitting president has ever been prosecuted? 

There’s a consensus that the president can’t be prosecuted. You could argue that no one has bothered to; no one has thought that the sitting president has committed a crime and then pursued the action of prosecution. The Office of Legal Counsel and the Department of Justice don’t believe you can prosecute a sitting president. That legal judgment binds the executive branch, meaning that no federal attorney will ever try to charge a sitting president as long as those opinions remain on the books. Those rules don’t bind local prosecutors. They can come to different conclusions and act on them. For example, the Arkansas Attorney General could try to criminally prosecute Joe Biden if he thinks there’s probable cause to seek an indictment. This could cause a court opinion about whether you could indict or prosecute a sitting president. 

How do you think the media affects all of this? 

One of the problems in the media is that the various media sources speak to only a portion of the country. The conservative media speaks to conservatives, and the liberal media to liberals. It’s fair to say that Fox News doesn’t pay much attention to Donald Trump’s flaws. It’s also true that the mainstream media doesn’t pay much attention to Joe Biden’s flaws. So there’s been little attention by the mainstream media on President Biden’s son and his influence peddling or on whether or not there was an Emoluments Clause violation while Joe Biden was vice president. I recollect that Hunter Biden was selling his services, which could be considered influence peddling, while Joe Biden was vice president during the Obama administration. 

There’s a similar question about whether Joe Biden indirectly received foreign government money while vice president. But these aren’t issues the mainstream press focuses on. The conservative media, likewise, doesn’t pay attention to President Trump’s scandals. This means that each side only hears about problems on the other side. More partisan people listen to what they already believe, and people in the middle don’t necessarily hear both sides of an issue.

What should high schoolers take away from this conversation about the presidency? 

The big picture question to consider is: What authority does the president legitimately have? Is presidential power a function of what the Constitution originally meant, or is it a feature of what it has come to mean through changing practices and precedents? In this context, it’s essential to think about limits. What would an illegitimate change look like if the president can “acquire” the power to declare war legitimately? Suppose the president acquired the power to imprison citizens without a trial; is that beyond the pale? If it is, what makes imprisoning citizens different from war powers? 

One of the points in my book is that it’s easy for the president to change the Constitution by using his power to slowly change established norms. And we can see this change throughout history in things like war powers. So it’s crucial for everyone, including high schoolers, to ask who decides what the presidency can and can’t do. Is it the presidency itself? Is it United States citizens? Is it the Supreme Court? Is it Congress? Is it all these institutions acting in concert? I think these are the questions your generation has to ask and keep in mind in the future.

A Visit to the Ninth Circuit: Fellowship of Christian Athletes v. San Jose Unified School District

by Audrey Jung

Over spring break, I was privileged to sit-in on oral arguments before the Ninth Circuit at the Richard H. Chambers Courthouse, including an en banc hearing of Fellowship of Christian Athletes v. San Jose Unified School District on Thursday, March 23.

As entertaining as oral argument audios on Oyez can sometimes be, visiting the courtroom had a unique tang to it. From the seemingly humdrum –– lawyers chatting as they waited in line for security checks –– to the hushed moment when the judges walked into the courtroom and took their seats, everything seemed special when seen from new eyes. Apart from the novelty of witnessing a case in-person, however, I found the facts of the case itself intriguing. Here’s a breakdown of the dispute and its oral argument.

The Fellowship of Christian Athletes (FCA) chapter at Pioneer High School in San Jose, California requires that club leaders sign a Statement of Faith and Sexual Purity Statement, which hold, among other beliefs, that “sexual intimacy is to be expressed only within the context of marriage” and “marriage is exclusively the union of one man and one woman.” While gay or lesbian students are not precluded from leadership, they must affirm these views. In 2019, the club lost official recognition on the grounds that it discriminated based on sexual orientation, violating the district’s Non-Discrimination Policy.

Two years later, the district adopted an “All-Comers Policy” which established that all students must be eligible for club membership or leadership consideration “regardless of [their] status or beliefs.” To consider leadership aptitude, clubs should instead adopt non-discriminatory criteria like participation or attendance. The district required club leaders to sign a form affirming this policy, and the provision was also included in a mandatory club application form. FCA did not submit an application.

Citing gender and ideology-specific clubs that function without complaint –– from Girls Who Code to the Republican student club, which requires student leaders to support the Republican platform –– FCA argued that the district applied a double standard, targeting the club for its religious beliefs. The district’s approval of a Senior Women club strengthened FCA’s case; in this instance, the club explicitly noted on its application form that it would exclude male membership. While this statement of intent clearly violated the All-Comers Policy, the club still received recognition.

The district counters that this was a mistake, attributable to a lack of administrative training in the new policy. An “inadvertent mistake” cannot be used to prove selective enforcement. Moreover, the district questions whether the FCA has standing, or the right to sue, in the first place. To prove standing, the club must show that it suffered injury under the All-Comers Policy, like being denied recognition. There is a lack of concrete evidence, the district contends, that students even intended to apply.

Now, the 2010 Supreme Court case, Christian Legal Society v. Martinez, upheld the constitutionality of all-comers policies. However, that’s insofar as they are uniformly applied. Here’s the key question before the Ninth Circuit: Is the district’s all-comers policy in actuality “all-comers,” or does it unfairly target the FCA for its religious leadership requirements?

In August 2022, a Ninth Circuit panel ruled that the district unfairly targeted FCA for its religious views and ordered the club’s reinstatement. The district petitioned for a rehearing, which the court granted. Below, I’ve summarized the en banc oral argument.

Petitioners (FCA):

At the podium, lead counsel for the petitioners Daniel Blomberg argued that the All-Comers Policy is essentially a continuation of former practice, indistinguishable from the non-discrimination policy except by name. That’s because under the current policy, clubs can still be selective in how they choose members and leaders so long as they do not apply criteria listed in the non-discrimination policy.

What steps would the district need to take, Judge Eric Miller inquired, to ensure that the policy was truly all-comers? Blomberg responded that to do so would be difficult, if not impossible, without harming many student groups.

Judge Consuelo Callahan expressed concern over religious animus, noting a higher level of “vitriol” directed at FCA than she’d seen in other cases. One teacher described the views of the FCA as “bulls***” while another likened members to “charlatans.”

But whose comments mattered? Judge Milan Smith referenced Masterpiece Cakeshop, in which the Supreme Court held that the conduct of the adjudicatory body, Colorado Civil Rights Commission, violated the Free Exercise Clause. In light of Masterpiece Cakeshop, perhaps only the conduct of decision makers, or members of the adjudicatory body, was relevant.

The school leadership was culpable, Blomberg maintained, because it never sought to correct the teachers’ comments. And when parents of FCA members filed for an investigation of harassment, the district refused their request.

In response to Chief Judge Mary Murguia’s query on standing, Blomberg cited a number of similar cases in which religious students were not barred from suing. Further, he stated that even if the court did not find that the FCA club in question had standing, it could find standing for its umbrella organization, the national FCA, which incurred and would face ongoing costs.

Respondents (the district):

Early on, lead counsel for the respondents Stacey Leyton faced questioning on whether the All-Comers Policy was fairly applied, with Judge Mark Bennett bringing up the approval of the Senior Women Club. Noting that the school district has a staff of 1500, Leyton emphasized that the mistake of one administrator should not preclude the district from applying its policy.

Judge Daniel Bress steered the questioning back to religious animus. How should the court address negative comments made by faculty? Leyton stated that the comments, which date back to 2019, affected students who have already graduated. While these students can seek damages claims, the comments did not affect students currently enrolled in the district.

A key distinction in this case is that student-run clubs, but not district-run programs, are bound by the All-Comers Policy. Under this rule, district-sponsored boys and girls athletic teams are permissible, but boys and girls athletic clubs are not. Judges Patrick Bumatay, Sandra Ikuta, and Smith expressed confusion over this seeming discrepancy. Why was sex-based discrimination valid in one scenario, but not the other?

Leyton explained that student-run clubs have a different purpose than district programs. With student-run clubs, the district aims to create a student-run forum to which all students have access. On the other hand, district-run programs have pedagogical purposes that can’t be met with the All-Comers Policy. Still, some judges evinced doubt. Later down the line, Judge Danielle Forrest remarked that if the district’s objective is to give students a full and inclusive club experience, its rules seem to undermine that purpose. There might be better routes to achieve the same aim, she implied.

In regards to standing, Judge Bridget Bade posited that students didn’t apply for FCA club approval because doing so would be futile. Leyton clarified that students didn’t have to apply to qualify for standing. Rather, there had to be concrete evidence that students would have applied had the policy not been in place. In this case, there wasn’t such evidence. Testimony by an advisor, she argued, was insufficient, because the advisor could not know with certainty what his students’ intentions were and failed to identify a specific student who planned to apply.

The Ninth Circuit’s ruling could reach several different conclusions. For one, the court could rule that the district’s policy is, in fact, all-comers and thereby constitutional. Alternatively, the court might order revisions to the policy to include the FCA or strike the policy down altogether. But if the court rules that the FCA does not have standing, it doesn’t need to weigh in on the issue at all.

A ruling is expected sometime later this year.

Explaining the Internet cases: Google v. Gonzalez and Twitter v. Taamneh

by Hugo Rosen

On Wednesday, Feb. 22, the Supreme Court heard oral arguments in Google v. Gonzalez and Twitter v. Taamneh. Both cases concern the scope of these platforms’ liability for content they host or promote that has a connection to terrorism. The Court’s decision will impact both the companies concerned and the future of the Internet itself. Here’s what you should know:

Section 230

Section 230 of the Communications Decency Act protects platforms such as Google and Twitter from legal liability for the content they host. Specifically, the law outlines that “providers of interactive computer services” cannot be treated as the “publisher or speaker” of third-party information on their platform. This protection promotes free speech because internet platforms don’t have to monitor all their content (and there’s a lot) for potential lawsuits, and they have leeway to engage in content moderation in the first place. So, for example, while Youtube’s terms of service say it will take down videos that promote terrorism or violence, Section 230 generally protects it from lawsuits if it does not flag these kinds of videos immediately and, as a consequence, leaves them up for short periods of time. These protections have helped shape the modern Internet since its creation in 1996; repealing them would have a dramatic impact.

Google v. Gonzalez

Nohemi Gonzalez, a United States citizen, was killed during a series of terrorist attacks in Paris on November 13th, 2015. The next day, the terrorist group ISIS released a Youtube video claiming responsibility for the attacks. Gonzalez’s father sued, claiming that Google (which owns Youtube), Twitter, and Facebook furthered ISIS’s agenda because their algorithms promoted ISIS content. The district court dismissed the case on the grounds that Youtube had Section 230 liability, a decision affirmed by the U.S. Court of Appeals for the Ninth Circuit.

Gonzalez’s argument questions the scope of section 230, specifically whether it protects terrorist content promoted by Google’s algorithms. According to the petitioner (Gonzalez), targeted recommendations such as Youtube’s “recommended for you” page implicitly endorse the material presented. As a result, Gonzalez argues, Google is not immune from liability for any illegal conduct promoted by the videos because a platform making unsolicited recommendations is no longer merely “providing an interactive computer service,” and thus section 230’s protections no longer apply. 

On the other hand, Google argues that its algorithms, which “sort and list related videos that may interest viewers so that they do not confront a morass of billions of unsorted videos,” are necessary to guarantee viewer comprehension, a responsibility of internet service providers. One of Google’s main points during oral arguments was that removing targeted recommendations would throw the Internet into disarray, as there is no better way to organize vast multitudes of online information into coherence. Under this interpretation, the many Internet platforms which provide targeted recommendations should continue to be treated as passive providers rather than active publishers, entitling them to protection from legal liability under section 230.

Twitter v. Taamneh

Nawras Alassaf, a Jordanian citizen, was killed during an ISIS attack in Istanbul in 2017. His relatives sued Twitter, Google, and Facebook, alleging that the company’s failure to supervise terrorist content on their platforms properly comprises aiding and abetting terrorism under the Anti-Terrorism Act (ATA) and Justice Against Sponsors of Terror Act (JASTA). The district court dismissed this claim on the grounds that no defendant in no way assisted or even knew about the terrorist attack. Because defendants never failed to remove terrorist content once they became aware of it, the court reasoned, they cannot be held responsible for the attacks. The Court of Appeals for the Ninth Circuit reversed, ruling that defendants knew that ISIS content existed among their users and could have taken more meaningful steps to prevent this content’s proliferation. According to the court, the defendant’s culpability lay not with the 2017 Istanbul attack but with aiding “Isis’s terrorism enterprise” as a whole. Twitter appealed and the Supreme Court agreed to hear the case. This case does not consider section 230, although a decision in Twitter v. Taamneh could affect Google v. Gonzalez. As Justice Barrett noted during oral arguments, if the Court holds in the Twitter case that the terrorist videos did not illegally incite violence, then there could be no need to decide in the Google case whether the algorithmic promotion of terrorist videos is protected by Section 230 because the First Amendment would protect the videos in question.

Under section 2333 of the ATA as amended by JASTA, any person who “conspires to commit or aids and abets (by knowingly providing substantial assistance) an act of international terrorism” is subject to civil liability. Plaintiffs (Twitter, Google, and Facebook) argue that Twitter is not liable because the company neither assisted nor even knew about the 2017 attack before its occurrence. Like a doctor who knows that some people die from preventable illness every year cannot face charges for a random individual smallpox death, the plaintiffs’ case maintains that general knowledge of terrorist activity somewhere is not enough to assign culpability. According to the plaintiffs, companies should only be charged under ATA and JASTA if they knowingly assisted a specific terrorist act. 

According to the defendants (the Taamneh family), Twitter’s narrow argument falls outside the scope of the ATA, being so limited that it would “require a type of knowledge which almost no one but a terrorist would usually possess.” The fact that Twitter knowingly assisted a terrorist organization in any way, the Taamneh family argues, is enough to sue under section 2333 of the ATA. Furthermore, defendants argue that specific acts of terrorism are part of a greater terrorist enterprise and should not be treated separately. Twitter did not take more meaningful steps to prevent a threat they knew existed on their platform, Taamneh says, so they are liable to be sued. This case squarely poses the question raised less directly by Gonzalez: Did the terrorist videos in question break the law? 

Implications

The Court’s decisions in both Gonzalez and Twitter could have massive implications for the future of the internet. A holding that algorithmic recommendations are not protected by section 230 in Gonzalez would create countless lawsuit opportunities against Internet providers. During oral arguments, several justices worried that narrowing section 230 protections would incite an avalanche of lawsuits, leading companies like Google and Twitter to restrict a great deal of content in order to protect themselves. Justice Brett Kavanagh warned that the Court should not “crash the digital economy,” while Justice Kagan noted that the Court isn’t composed of “the nine greatest experts on the internet.” The Court of Appeals for the Ninth Circuit, in its ruling against the Gonzalez family, highlighted Congressional revision of section 230 as an alternative way to address the issues presented.

A victory for petitioners in Twitter would also put pressure on Internet providers to engage in far more extensive content moderation. The ACLU cites the example of Instagram confusing a post of a landmark mosque for terrorist content, describing it as “a common error which could become the new norm” if the Court holds platforms liable for all content they host. All in all, these two cases have the potential to affect change in many ways. For this reason, many of the justices during the oral arguments seemed inclined to converge around a narrower holding that would have less dramatic implications for the future of the internet. A decision is expected by June. 

Previewing this week’s oral arguments

President Joe Biden, beside Secretary of Education Miguel Cardona, delivers remarks on his administration‘s student-loan relief plan. Photo courtesy of Flickr

by Elise Spenner

Dubin v. United States: 

The aggravated identity theft statute at issue in Dubin v. United States sentences anyone who “knowingly transfers, possesses, or uses without lawful authority, a means of identification of another person” during specified felonies to an additional two years in prison. 

David Dubin submitted a Medicaid claim for a patient with their permission (and their name), but was convicted of health care fraud for over-billing the patient. Dubin was charged under the aggravated identity theft statute for using the patient’s name “in relation to” health care fraud, a specified felony. Dubin’s crime isn’t a typical case of identity theft, but the aggravated identity theft statute is quite vague and poorly written, prompting unexpected applications of its text. 

The Court now has the task of determining whether the statute should be read widely or narrowly. According to Dubin, a reasonable interpretation of the statute should require a connection between the predicate felony and the use of another person’s name — a practical, outcomes-based rationale. The government, on the other hand, takes textualism to the extreme in their argument, making the plain and simple argument that “use” is “use.”

Daniel Harawa, the director of Washington University in St. Louis’ Appellate Clinic, coined the dispute “literalism vs. lenity” in his SCOTUS Blog post, which I highly recommend reading. And Professor Orin Kerr (a criminal procedure expert) does a great job of explaining the statutory ambiguity that caused the conflict in this case at his post in The Volokh Conspiracy. Kerr is more sympathetic to Dubin’s position because he is “a fan of construing vague criminal statutes narrowly” and because he thinks the government’s reading would produce unintended results.

The Court will hear oral argument on Monday, Feb. 27.

Biden v. Nebraska and Department of Education v. Brown:

Both cases concern the legality of the Department of Education’s student-debt relief plan. Biden v. Nebraska is a lawsuit brought by six conservative states, while Department of Education v. Brown focuses on a lawsuit brought by two student loan borrowers. In each case, the Court must first weigh if the groups have standing to sue — lower courts have disagreed on whether the states or the individuals suffered injury as a result of the debt relief plan. If the justices determine the groups have standing, they will consider the substantive debate: Does enacting student debt relief exceed the authority of an executive agency?

I’ve written extensively about both of these cases in a prior post, but here’s the gist of it:

Currently, the debt relief plan is on hold — the Eighth Circuit issued a nationwide injunction after finding that Missouri had standing to advance their claims, and a district court ruled in Brown Country that the act was unlawful. 

The government claims, as the district court found in Biden v. Nebraska, that none of the states have standing. If that argument fails, the government says the HEROES Act — passed after 9/11 to give the Secretary of Education authority to “waive or modify” student aid during national emergencies — applies to the current debt relief plan, enacted in response to the COVID-19 crisis. 

On the standing question, the conservative states argue that the loan policy could reduce their revenue, even if it hasn’t yet. And respondents rest their substantive argument on the “major questions” doctrine: Because student debt relief is an economically and politically-significant issue, it must be left to the legislative branch. 

The Court will hear back-to-back oral arguments on Tuesday, Feb. 28.

New York v. New Jersey:

The Port of New York and New Jersey, located smack dab on the boundary line between the two states, is the busiest port on the East Coast. And lovers of crime dramas and cop thrillers will know that organized criminal activity thrives at ports. Remember the wildly successful 1954 movie, On the Waterfront? Well, the story begins when a New Jersey dock worker wants to testify against a corrupt union boss to the Waterfront Crime Commission. And the film was grounded in facts: A year before the movie was released, the two states established the Commission to try to tamp down on crime and “eliminat[ate] various evils on the waterfront in the Port of New York Harbor.”

70 years later, the future of the Waterfront Commission rests on the outcome of New York v. New Jersey. In 2018, the New Jersey legislature voted to withdraw the state from the Waterfront Commission Compact. It was a long time coming. In 2009, the New York Inspector General issued a 63-page report detailing commission misconduct, and the Commission has lost power as the port’s labor force shrinks. But nevertheless, New York was not happy, and brought a case directly to the Supreme Court under original jurisdiction (because it involves an interstate dispute, SCOTUS can hear the case without a prior decision from lower courts).

The two states disagree on the basic language of the compact. According to New York, the compact clearly states that it may only be altered or amended with the “mutual agreement” of both states. New Jersey says the compact might say amendments must be mutual, but is “silent” on withdrawal from the agreement. And the Court’s precedent holds that “silence” means states retain their pre-compact sovereign authority.

The Court will hear oral argument on Wednesday. March 1. Read more from the Council on State Governments here, or check out Star Revue’s breakdown here. 

Interview: Jeffrey Sutton

by Hugo Rosen

Judge Jeffrey Sutton is an American lawyer serving as Chief Circuit Judge for the United States Court of Appeals for the Sixth Circuit. He has authored several books and important opinions, including a dissent in the recent NFIB v. OSHA case, which was vindicated by the Supreme Court. Sutton, who clerked for Justices Scalia and Powell, believes in the importance of state and federal courts working in tandem to safeguard individual liberties.

What were you like in high school? What got you interested in the law? 

Well, I’m sad to say law was a third choice, maybe even a fourth choice depending on how you look at it. I was very interested in sports in high school. To be truthful, I might have been a better judge had I not spent so much time playing sports. But I really enjoyed sports and I got a lot out of them. I was a soccer player, a basketball player, a baseball player, and I devoted a lot of energy to sports, both in high school and college. That said, I was a respectable student and I didn’t have any lawyers in my family, which has a way of not making you think about law as a profession. Most of the people in my family were teachers or educators. No one in my direct family had been a lawyer. 

I spent a lot of time at summer camps when I was in high school; I was a camp counselor for many years at a camp in New Hampshire. And that had a big impact on me, although not necessarily when it comes to going into law. I really didn’t think about law school until several years after college, actually. Initially I thought I would either be a teacher or go into the foreign service. I was very interested in international relations in high school.

Interesting. I know you went to law school at Ohio State University, did coming from a “non-elite” school make it harder to find jobs such as your Supreme Court clerkships?

Yes, I was very fortunate to get a clerkship coming out of Ohio State, although maybe not as fortunate as you might think. Since I clerked at the Court, I’ve had two other students from Ohio State who clerked at the Court; one for Justice O’Connor and one for Justice Alito. The justices try to look at all types of applicants from different parts of the country, people from different types of law schools. You’re right that most of the clerks at the Supreme Court come from the more elite colleges and law schools, but I wouldn’t say that’s exclusively so. Justice Thomas is a good example of someone who quite often hires from state law schools, looking for people with interesting stories. 

When I started law school at Ohio State, I was not thinking of clerking at all, much less clerking at the Supreme Court. And it was only after my second year in law school that a professor suggested I apply as a clerk. And that started me down a very fortunate path. I’m really grateful to that professor for suggesting I clerk. At the time I was married and I was focused on trying to do well in law school and getting a good job. Clerkships just weren’t something I thought about until this professor raised the idea. It’s kind of amusing in retrospect because clerking both at the Second Circuit and at the Supreme Court just had a remarkable impact on me. It really improved my writing, increased my interest in federal law, and ultimately set me on the path to becoming a judge. I don’t see any world in which I would have become a judge had I not been influenced by those clerkships the way I was. So it’s a great reminder at your age that you can’t plan everything. We’re not in control, and sometimes things just happen the way they happen. I was looking in one direction in high school, and lo and behold, by the time I was done with my late twenties, I was heading down a very different path, one I’m really grateful I headed down. 

You clerked for both Justice Scalia and Justice Powell, who had very different interpretations of the Constitution. What did this teach you? 

I did, and I was very fortunate to work for both of them. What a good lawyer wants to learn is how to speak the languages of all the different judges out there. Justice Powell, you wouldn’t have thought of him as an academic justice. He was very practical in his views. He looked at the cases one at a time and was much more focused on what he perceived as justice in an individual case. Whereas Justice Scalia, who was an academic, was a prominent scholar and had strong theories about judicial interpretation. And so sometimes I’d be with Justice Powell and thinking about his approach to deciding a case, and then I’d be listening to Justice Scalia and thinking about his approach to deciding a case, and if you do that for a while you learn both languages. The greatest benefit I got out of that year was learning both languages. And that was really helpful when I became an advocate after clerking. I think it has been helpful as a judge too. I probably err on the more textualist and originalist side, but I feel like I’m pretty comfortable understanding where people are coming from who don’t necessarily share my approach to interpretation. And I attribute that to having the good fortune of working for Justice Powell and Justice Scalia. 

Speaking of your work as a judge, you’ve written a great book, 51 Imperfect Solutions, about federalism. How do your federalist ideas influence your judicial decisions? 

I think about that a lot. Federalism is such a complicated term, and I think it doesn’t communicate a lot to most people, particularly in high school. Federalism to me is what I consider the greatest debate in American history: what should be national and what should be local. I mean that is all of American history in a nutshell. We’re constantly reassessing if something is for the national government or is it for the local governments? And I think that’s a very healthy debate. The answer to that debate has differed throughout American history. 

The COVID-19 pandemic is a good example. Some of the government responses to the pandemic were national. Developing a vaccine, for instance, that was going to be hard for the state of Maryland and the state of Ohio to do on their own. So putting together a program to develop the vaccine as fast as possible was quite naturally a job for the national government. But some other issues, it was hard to say there was only one answer. When should you have vaccine requirements? When should you have masking requirements? Do you close public schools? Do you have them only open virtually? What do you do when you’re running out of hospital beds? Those questions have multiple answers. And if you think there might be more than one answer or you’re not sure what the right answer is, I think the local option is a great way to go. Because you can see if it works on a smaller scale. If Ohio tries an experiment and it fails, the people of Maryland don’t have to follow it. And that’s a wonderful feature of federalism. 

You authored a dissent for the Sixth Circuit Court of Appeals opposing COVID vaccine or testing mandates in NFIB v. OSHA using that reasoning. What motivated you to choose the local option over the national option? 

Boy, that was an interesting case. It came to us on an emergency basis. The Biden administration had a vaccine mandate through what’s called OSHA, which is a federal agency that deals with worker safety issues. And the idea behind the OSHA mandate was that COVID created considerable risk in the workplace. If you have more than just a few people in a workplace, you can imagine the risk of COVID outbreaks. And so the perspective of the administration was that a general mandate was needed. At the same time OSHA proposed this one, the administration also created a vaccine mandate for healthcare facilities. 

The healthcare facility mandate was a more tailored approach, which the Supreme Court upheld because it applied only in the sphere of healthcare. And healthcare, understandably, was an area where risk of Covid transmission was a lot higher than anywhere else. The vaccine mandate that applied to American workers in general, however, was predicted to affect two-thirds of American employees. That’s a lot of people. So the question for us in the OSHA case was whether Congress had given OSHA the authority to create such a sweeping mandate, and ultimately the Supreme Court concluded that Congress had not in fact given OSHA the authority to create such a sweeping mandate. 

At the same time, the administration did have authority to create mandates inside the healthcare space where the risks were higher. And that’s a perfect illustration of what should be national and what should be local. On the one hand, you could imagine all 50 states deciding to have various types of vaccine mandates, and some did, some had mask mandates as well. But the stakes are higher when you nationalize something. Let’s say, for the sake of argument, that eighteen months ago someone’s instinct was that a national vaccine mandate was a good idea for all American workers, right? So that’s very broad, very sweeping. And let’s say they took that view because they thought “better safe than sorry.” That would be an understandable perspective. You can understand why the President might think that. But if the Court had decided that the agency had the authority to impose a vaccine mandate across all 50 states, guess what that would mean for the next administration? It would have had the authority to have no vaccine mandate and potentially to prohibit individual states from having mandates. 

The thing you have to think about when you’re judging these cases is not just your own opinion about the proposal in front of you, but what might happen in the long term if you decide that the President and federal agencies have that power. Once you decide that the federal government has the power to do something, they can use it in ways you like, but they can also use it in ways you don’t care for. And a national rule that said, hypothetically, no vaccine mandates whatsoever might have been something many Americans wouldn’t have appreciated. They would’ve preferred a world in which the states had the authority to decide that question, and been uncomfortable with the national government being in charge of the whole country’s policy. 

You’ve talked about state courts as “laboratories of experimentation” which come up with independent solutions to protect constitutional rights. How do you decide when an issue merits national intervention? Where do you draw the line? 

Well, let’s use the pandemic as an example again. Think about mask mandates and opening up public schools during the pandemic. This was a challenging issue. We all know that virtual learning is not as good as live learning, but most schools erred on the side of more virtual learning immediately in March of 2020 because we just didn’t know the risks. We didn’t know if young people were as at risk as, say, older people. In this setting, it made sense to allow different states to try different approaches because they couldn’t hide from the results. If hospitalizations went way up, if there were fatalities, other states would see what went wrong and avoid those mistakes. 

So I’m a big fan of thinking about the states as sources of trial and error when you’re not sure what to do. It’s a good idea to let a brave state try a different approach and if it works out other states can borrow and adapt it. But for how long should we let the experiment go and when is it time to nationalize? Justice Brandeis, who coined the phrase “laboratories of experimentation,” didn’t answer the question either. He said we should give the states lots of autonomy to try different experiments to deal with new problems.

So let’s think of some other big problems in government. The opioids crisis, data privacy, the technology companies’ authority to suppress speech. I mean, we have a lot of tricky policy problems going on right now. And I think what Brandeis would say is to be patient, don’t too quickly nationalize one solution until you have a sense of what really works. 

The time to nationalize is when a winning insight emerges. The national government has only limited powers. It can’t do whatever it wants. It doesn’t have what’s called general police power. And so the power it exercises must be a power given to it by the Constitution. So it can’t nationalize everything. Congress couldn’t tell us where every state capital should be. It can’t claim authority over every issue. But it does still have lots of power. Both Congress and the Supreme Court would be wise to exercise that power only when they’re sure they’ve got a winning insight, because it’s not helpful to nationalize a bad idea. 

What would you say about the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization? Does their reasoning that the Constitution doesn’t protect abortion on a national scale align with what you’ve been saying? 

I won’t comment so much on whether Dobbs is correct or incorrect, but I think what you’re asking is, does Dobbs have any lessons for us about the national vs. local question? Dobbs is of course a controversial decision. There are 330 million Americans, who might have 330 million different perspectives on the right answer. But Dobbs can teach us something about the national vs. local question. What’s important about Dobbs is that once the Supreme Court decides not to have authority over, say, abortion laws, that means the states are the only game in town. That’s all that’s left. 

And so ever since June of last year there’s been lots of activity at the state level. Three states have amended their constitutions to protect reproductive autonomy. Several state courts are reviewing challenges to laws that prohibit choice about reproductive autonomy. Lots of legislatures are visiting the issue at the state level. So the key lesson is that Dobbs says this is not a national issue. It says we’re going to leave it to the states, and we now have 50 state experiments going on. It’s incredible how much activity there’s been. I wonder if there’s been a single state that did nothing. And you’ve got challenges everywhere, there could be a dozen to 15 state court challenges. You have lots of new legislation and of course several state constitutional amendments. So it’s a controversial issue, but because it’s controversial, it offers an educational moment for Americans to realize that the US Supreme Court and US Constitution are not our only protectors of liberty. There are 50 state constitutions and 50 state supreme courts. There’s a second option if you’re unhappy with the Supreme Court’s decision. And I think there’s a lot of evidence to prove that the second option can be a fertile one.

That’s very interesting. Are you saying that all the 50 state courts and state constitutions can work together with the federal constitution to guarantee individual liberties? 

Yes. Think about it like basketball. In basketball you get two foul shots. If you miss the first shot, you get to take a second shot, you can still try one more time to accomplish what you’re looking for. That’s American federalism. Federalism gives us two sets of governments, but it gives us two sets of limitations on those governments. So if you don’t like a state or local law, you’re free to seek relief in the US Supreme Court. But if that fails, you’ve got a second option. After Dobbs, the first option isn’t going to work. The Supreme Court said, “No, the 14th Amendment doesn’t protect the right to an abortion,” but that still leaves us with the second option. And I feel like the last nine months have revealed that to be a meaningful option. 

I think most people tend to think of decisions in terms of whether they like the underlying outcome or not. I want reproductive autonomy or I want pro-life, that’s how they think about it. And I appreciate that. You know, you want your team to win. The key thing is that you have two chances for your team to win. And that’s healthy in a system of government. 

You mentioned how a lot of people think about Supreme Court decisions in the context of their own opinions. What would you, as a judge, recommend to high schoolers who want to learn more about how the law works? 

The first question to ask is who decides, which branch of government is supposed to do this? That to me is the first place to go. Is this something for my local legislature, my local court, maybe my city council? Or is this a problem for the national government? You might decide, well, if the national government will do what I like, I’ll take it. But keep in mind the risk that the national government might do the opposite of what you like, and that’s what you have to account for. I would say most of our policy problems are handled best at the local level, either at the state legislative level, the city level, or the city council level, because they’re going to understand the problem better. 

Let’s take gun regulation as an example. That’s a pretty controversial topic. Doesn’t it make sense to think about gun regulation as being a little different in Washington DC as opposed to Wyoming? I mean, those are two very different places to carry a gun. In Wyoming, we don’t have mass shootings because they don’t have masses of people. They have a popular and safe hunting culture. DC is not known for its hunting culture. And so it makes a lot of sense that you would allow those two governments to regulate guns a little differently. That’s true of a lot of policy problems.