Questioning Selection, The Supreme Court, and Legitimacy

Oct 9, 2023 Howard M. Wasserman1 comment

Howard M. Wasserman

Much has been written (and reviewed) about the modern Supreme Court’s legitimacy and about reforming or restructuring the Court to pull it from this crisis.

Benjamin Johnson identifies a century-old power-grab as an overlooked cause for this crisis: Congress made the Court’s appellate jurisdiction almost entirely by discretionary writ of certiorari in 1925 and the Court within less than a decade arrogated power to use certiorari to select and decide discrete legal questions rather than to hear and resolve entire cases. The resulting system is not inherent in the “judicial power” granted in Article III, not authorized by statutory text, and not intended by Congress; in fact, it contradicts the Justices’ representations in lobbying Congress to eliminate mandatory jurisdiction. By asking and answering specific constitutional questions of its unilateral choosing, the Court “no longer decides cases,” in turn undermining its role as an appellate court and the logical and policy bases for its role as (final?) constitutional arbiter.

The paper presents a comprehensive history of the Court’s appellate jurisdiction, identifying four key moments of evolution: the Judiciary Act of 1789, under which all jurisdiction was mandatory; the Evarts Act in 1891, creating the intermediate courts of appeals; the Judges’ Bill in 1925, pushed by Chief Justice Taft and making discretionary writ of certiorari the near-exclusive basis for appellate jurisdiction; and the Supreme Court Case Selections Act of 1988, which eliminated the last vestiges of mandatory jurisdiction over cases from courts of appeals and state courts. That history and the resulting jurisdictional statutes reveal several things. Congress granted the Court jurisdiction to review, by certiorari, “cases” from courts of appeals and “final judgments or decrees” from state and territorial courts. Certiorari originated as a limited alternative path from the courts of appeals to SCOTUS, but the Court used the tool to take and decide the entire case. In urging passage of the Judges’ Bill, Taft and other Justices represented to Congress that the move to all-certiorari jurisdiction would not change the Court’s practice of taking entire cases. And the Court abandoned that view by the end of 1920s, embracing a power to limit certiorari review to specific questions of the Court’s choosing. Congress did authorize the Court to address “any question of law” when a federal court of appeals certified a question. But this express textual grant to decide discrete issues demonstrates that Congress expected the Court to use certiorari to hear entire cases unless someone outside the Court (the court of appeals) presented a question in a distinct process.

The resulting scheme—unilateral discretion to set its agenda by choosing and deciding singular questions rather than cases—means “the Court takes questions, not cases.” It tgys acts in a way that Congress did not expect or authorize and ceases to function as an appellate body. This produces two main adverse effects.

First, discretionary question selection may be inconsistent with a judicial power that extends to all cases or controversies. Of course courts must decide subsidiary questions to resolve cases. But two things make current practice unique. Justices decide questions independent of the case; the lower court resolves the case after SCOTUS decides the chosen question. And Justices have seized unilateral power to select the questions they decide, rather than answering questions presented to them or authorized by Congress or lower courts. Worse, the Court has denied administrative agencies and lower courts similar discretion to select and decide discrete questions; it reads other jurisdictional statutes narrowly to require these bodies to hear all issues within a case.

Second, this practice undermines the logic of judicial review. Under the classic justification, the Court must decide cases, it does decide cases, and deciding cases requires constitutional judicial review. If the Court does not decide cases, however, the second prong of that justification vanishes. And if the Court selects which constitutional questions to decide and when, it does not act out of any formal or legal obligation.

Although Johnson situates this paper within the Court-reform literature, he does not offer reforms or solutions. This is a work of deep history. But it sheds light on a different facet and cause of the legitimacy crisis—one of the Court’s own making.

The Future of Intersectionality in Employment Law

Sep 11, 2023 Suzette M. MalveauxAdd a Comment

Suzette M. Malveaux

Recent social justice movements—such as #MeToo and Black Lives Matter—have pushed mainstream American society to reckon with the ubiquity and persistence of systemic sex-based and racial inequities. At the heart of the firestorm are Black women, whose identity at the intersection of sex and race often exposes them to pervasive, but also unique employment discrimination and sexual harassment. Jamillah Bowman Williams’s Beyond Sex-Plus: Acknowledging Black Women in Employment Law and Policy stands out as an exceptional examination of the how courts deal with such “intersectional” claims.

“Intersectionality,” famously coined by Professor Kimberlé Crenshaw over three decades ago, recognizes that Black women may experience discrimination distinct from how white women or Black men experience discrimination. This concept is not new—the Fifth Circuit recognized it as early as 1980. The Equal Employment Opportunity Commission (EEOC)—the agency tasked with enforcement of the Title VII of the Civil Rights Act of 1964—explicitly recognizes Title VII’s coverage of intersectional claims. Black women are overrepresented among low-income, vulnerable workers, and subjected to pernicious stereotypes rooted in chattel slavery.

This “double jeopardy” requires courts to move beyond forcing Black women to parse out their identities and pigeonhole their discriminatory experiences into conduct based solely on “race” or “sex.” Williams urges judges and lawmakers to go deeper, to entertain a more complex and nuanced understanding of the law, and to align Black women’s lived experiences with Title VII’s broad remedial purpose by recognizing intersectional claims. Not only would Black women fare better at summary judgment and in case outcome (whose failure rate is significantly higher), but the law would be inclusive of their reality. For example, in the context of work harassment, a plaintiff may experience a hostile work environment based on the combination of their sex and their race but fail to prove either one independently. Title VII requires that workplace incidents be sufficiently severe or pervasive to constitute harassment, but if courts artificially disaggregate such incidents into “race” or “sex,” they dilute, potentially fatally, the force of the discriminatory conduct. Appreciating the totality of the misconduct and the overlapping nature of the harassment would more faithfully protect everyone in the workplace.

Williams’s article breaks new ground by identifying and critiquing the primary approaches used by the federal appellate courts when analyzing intersectional claims.

Some circuits (Fourth and Eighth) insist that Black women dissect their experiences and identities, ascribing either “sex” or “race” as the basis for discrimination. These appellate courts read the text and purpose of Title VII in a cramped way that disallows claims combining “sex” and “race.” They worry that intersectional claims will afford Black women a “super-remedy” and “special” treatment unavailable to fellow workers. This narrow interpretation ironically deprives those multiply-marginalized of Title VII’s protection, contrary to the statute’s broad remedial purpose and spirit.

Other circuits (Second, Third, and Tenth) analyze intersectional claims under a “sex-plus” framework. A plaintiff who suffers discrimination on the basis of sex plus another trait (not protected under Title VII) would be shielded by the statute. The classic example is Phillips v. Martin Marietta Corp., allowing women with preschool-aged children to bring a sex-discrimination hiring case against the employer even though the company hired other women; this constituted sex discrimination because, unlike women, men with preschool-aged children were hired. The statute covered the combination of two traits (sex plus having a preschool-aged child). Although only a subset of women bore the brunt of the employer’s exclusion, they could challenge discrimination at the intersection of sex and another factor. Courts have expanded the “sex-plus” rationale to protect older women from sex-plus-age discrimination, combining Title VII and a plus trait from another statute, the Age Discrimination in Employment Act (ADEA). Given this flexibility, Williams persuasively argues that a court should easily be able to recognize an intersectional sex-plus-race claim—the combination of two traits already protected under Title VII.

Williams’s endorsement of the sex-plus approach, however, is tempered by its limitations. She faults the approach for its overdependence on comparators; elevation over a race-plus framework; and preferencing sex over other traits as the basis for statutory protection. Most notably, the sex-plus framework requires Black women to dissect their identities and lead with sex as the primary trait, with race secondary in the analysis. Centralizing sex artificially fractures the plaintiff’s experience and unnecessarily subordinates the racial dimension.

A third and more preferable method from the circuit courts (Fifth and Eleventh) recognizes the unique experience of race and sex discrimination combined by identifying Black women as a protected class. Williams praises this as a step forward but worries that these courts still subordinate the plaintiff’s race claim.

Two circuits (Sixth and Ninth) adopt the best approach—a totality or aggregate one. The court does not force the plaintiff to sort her experiences into boxes labeled “race,” “sex,” “age,” “religion,” “disability,” or any other protected trait. Instead, the court analyzes her experience as a whole to discern illegal discrimination.

Finally, two circuits (First and D.C.) have been inconsistent and undecided when addressing intersectional claims. The U.S. District Court for the District of Columbia expressed concern over plaintiffs turning employment discrimination claims into a “many-headed hydra” comprised of countless permutations based on the various groups to which they belong.

After exploring the current state of the union on the interpretation of intersectional claims, Williams makes another ground-breakin contribution. Looking ahead, she examines a number of significant trends that foreshadow the future of intersectionality in employment law. Most notably, Williams contends that Bostock v. Clayton County supports intersectional claims. Authored by Justice Neil Gorsuch and joined by Chief Justice Roberts, Bostock joins conservative and liberal justices in a promising majority opinion. Williams argues that Bostock helps Black women in three ways: 1) inextricably linking discrimination on the basis of sexual orientation and transgender status to sex; 2) reinforcing that discrimination “because of sex” includes mixed motivations; and 3) noting that individuals may be subject to discrimination even if their whole group is not. Bostock gives space for intersectional claims, discrimination based on multiple factors, and discrimination against a subset of a protected class. Indeed, the Tenth Circuit relied on Bostock in recognizing intersectional claims by Black women through the sex-plus framework.

Williams also notes how state legislators, while leading the way in enacting protections against sexual harassment, must do the same for harassment based on race and other central identities. Indeed, the law should not stop there, but should take a more unified approach that does not silo experiences into claims of discrimination, harassment, or retaliation.

Finally, Williams promotes the development of a “reasonable Black woman” standard for sexual harassment claims brought by Black women. This standard more closely mirrors plaintiffs’ unique experiences and perspectives, providing important context, nuance, and understanding. Such an approach would more fully advance the EEOC’s victim-centric guidance.

Williams ends her article with prescriptions based on various federal and state legislative reforms, pushing Congress, the EEOC, and the courts to more fully embrace the experience of Black women’s lives through the recognition of intersectional claims. She challenges judges, lawyers, and law students to see Black women not as the sum of our fractured identities, but to see us as whole persons. And in doing so to see our humanity.

Deepening Our Understanding of the Who’s of the A2J Crisis

Jul 17, 2023 Seth EndoAdd a Comment

Seth Endo

It is perfectly understandable why so many lawyers believe civil procedure is a slog. For litigators, their first experiences as attorneys involve plodding through thousands of near-identical documents to respond to a discovery request or consulting Rule 6 to determine when a response to a motion was due (remember not to include the last day of the period if it is Saturday, Sunday, or legal holiday!). But civil procedure raises big normative issues too. A wave of articles and symposia have taken aim at the civil justice gap, examining everything from the split between lawyerless and lawyered courts to the demographic composition of unrepresented litigants to using technology to reform service of process. Building on Rebecca Sandefur’s foundational work, Kathryne Young and Katie Billings apply insights from sociology to both enhance and implicitly challenge the existing access-to-justice literature.

Young and Billings’ initial framing highlights their cross-discipline expertise as they note that the cost of the civil justice gap goes beyond economics. They recognize that the stakes include a tax on time, stress, and other emotional tolls that lead to mental and physical health problems. And these harms are not uncommon—about half of U.S. households include a member with a problem actionable under civil law.

One common response to these concerns focuses on the ability of folks to receive formal legal help from lawyers. But Young and Billings’ sociolegal emphasis reveals two flaws: (1) there are not enough lawyers to cure the access-to-justice gap and (2) some people might prefer non-legal solutions. Moreover, lawyers only enter the picture if the individuals with legally actionable problems identify those concerns as requiring a legal solution.

Following this critique, Young and Billings conceive of the civil justice gap broadly, “center[ing] everyday people experiencing problems, as opposed to centering law and legal structures.” They discuss five recent studies showing that justiciable problems are widely prevalent—especially among low-income Americans and Americans of color—but that laypeople tend not to view their problems through a legal lens. But a significant hole remains in our collective knowledge of how access-to-justice problems distributed beyond race, class, and gender; Young and Billings’s original research helps fill this gap.

Young and Billings surveyed more than 3,000 U.S. adults, detailing their demographic characteristics and civil justice problems. The survey dove deep into respondents’ lives, asking about their race, income, education, gender, age, queer identity, rurality, disability, parental status, and history of arrest, domestic violence, or sexual assault. They identify how these variables correlate—both independently and in 192(!) combinations—with encountering a justiciable employment, family structure, or debt problem.

This detailed inventory of demographic characteristics and the effects of intersectionality allows for a more complete understanding of the civil justice gap. For example, a white, high-income individual who identifies as LGBTQ+, has a physical disability, lives in a rural area, is the parent of a child under 18, and was either previously arrested or a survivor of domestic violence or sexual assault has about a 35% chance of experiencing an employment problem but that figure jumps to just under 50 % for a Black, low-income person with similar characteristics. And, while race and class remain central, these blocs are not monolithic. The predicted probability of a family structure problem is just 3% for some high-income Black Americans and as high as 37% for other Black Americans. This multi-faceted approach also shows how some individual characteristics—such as race, queerness, rurality, and others—significantly correlate with experiencing at least one category of justice problem, even if the problem has nothing to do with the underlying characteristic.

The practical benefit of such data is clear: legal aid organizations and policymakers may design interventions that more efficiently and precisely target folks in need. Young and Billings provide the following illustration:

If research established, for example, that middle-class Latinx mothers were three times more likely to face justice problems related to elder care, relevant justice interventions could be used in media, shared with communities, and made available in physical and virtual spaces frequented by middle-class Latinx mothers.

This research can inform policy responses to the access-to-justice crisis But Young and Billings’ findings carry additional implications. They demonstrate the potential power of non-legal tools in addressing justiciable problems. They also show the likely limits of transsubstantive approaches or technological approaches rooted in providing litigation help. While An Intersectional Examination of U.S. Civil Justice Problems does not obviously tell an optimistic story about the civil justice gap, the results provide a necessary prerequisite towards figuring out how different institutions—not the courts alone—can address both the chasm of unmet legal needs and the underlying inequality that creates them.

Traffic Courts and Civil(?) Justice

Jun 13, 2023 Pamela BookmanAdd a Comment

Pamela Bookman

If you (the elite readers of this blog) have ever represented yourself in court, it may have been in traffic court. You know this is a court, and you likely brought (or tried to bring) your lawyerly skills to bear. But in the process, you may or may not have been aware that almost 50% of all cases across the country are filed in traffic court and that this lowest level of justice also provides many people’s closest interaction with the state and the justice system. Yet few of us who study courts think much about traffic courts. Even the recent wave of excellent literature on state and local civil courts (such as contributions to this symposium jotted here, here, and here) often put these courts to the side.

Justin Weinstein-Tull ends this side-lining of traffic courts with a wonderful new article that uses a mixed-methods approach to present a vivid picture of the justice, and injustice, in traffic courts. Weinstein-Tull has conducted 50-state surveys, interviewed traffic court judges, and even sat through the three-day training necessary to become a traffic-court judge in Arizona. The result is an informative and thought-provoking exploration of the courts that many of us interact with, that oversee people’s most likely interactions with the police—at traffic stops—but about which we know so little.

The article proceeds in three parts: Convincing us why we should care about traffic courts; describing a diverse landscape of traffic courts that nevertheless seem generalizably grounded in informality, discretion, and lay notions of fairness; and analyzing how traffic courts shed light on different categories of courts in this country—precedential and non-precedential, judicial and administrative.

The first task Weinstein-Tull accomplishes easily. We should care about traffic courts! Whether sub-divisions of general jurisdiction state courts (as in California and four other states) or dockets of municipal, limited jurisdiction courts, traffic courts hear vast numbers of cases that affect people’s lives in important ways. In 2021, traffic cases constituted almost 50% of cases filed in state courts (which hear 98% of cases filed in the United States). That means that of the 63 million cases filed in state courts (compared to 421,860 cases filed in federal courts in 2021), almost 30 million were traffic cases Sheer volume, however, belies the human stories that each case represents—the father who missed court dates and racked up debt because he was caring for his sick child; the woman who could no longer drive to work once her license was suspended; the man arrested for failing to pay traffic fines and fees, who spent time in jail and lost his job as a result. As so many studies have shown, traffic is policed most stringently in neighborhoods of color, therefore the consequences of traffic courts fall heavily there as well. The cases also represent “an implied judicial imprimatur” on traffic policing, while providing perverse incentives because the state collects so much revenue through their fines and fees.

The bulk of the paper describes traffic courts from the ground up, following the methodology that scholars such as Anna Carpenter, Colleen Shanahan, Jessica Steinberg and Alyx Mark, and Andrew Hammond used to study the unrepresented in state civil courts and in federal courts. While states and localities organize traffic courts in different ways, Weinstein-Tull identifies a few generalizable qualities: “their diversity, their informality, their discretion, and the forms of fairness they instantiate.” That diversity of traffic courts—like the diversity of state and local courts generally—make them difficult to study, but also makes that study fruitful and rewarding. Traffic courts and dockets can land in different parts of a state or local judicial structure, and judges can be state court judges or lay administrators.

Despite this variety, however, there are some generalizable characteristics. Weinstein-Tull calls these courts “legally informal.” They are lawyerless—neither the drivers nor the police officers who represent the state usually have counsel, and often the judges themselves are not lawyers. They are procedurally informal, often required by statute. For example, Hawaii’s Civil Traffic Rules specify that traffic hearing procedures “shall be informal[;] … [a] prosecutor will not be present[,] and witnesses will not be required,” while “the rules of evidence shall not apply” in Massachusetts traffic court. Finally, traffic courts are driven by discretion. Traffic court judges wield tremendous discretion in what penalties to impose—whether in the form of fees and fines, in lowering the fines below statutory minima, eliminating fines altogether, or imposing alternatives such as community service or traffic school. The Fines & Fees Justice Center has done tremendous empirical work documenting how fines and fees and other aspects of traffic courts affect people’s lives. Weinstein-Tull brings traffic courts into the scholarly discourse.

Having mapped out the traffic court lay of the land, Weinstein-Tull sets out to determine if traffic courts do justice and how would we know. On one hand, they embrace high degrees of localism, which can be especially responsive to communities. On the other hand, Weinstein-Tull acknowledges “a deep concern” that traffic courts’ “simplified rules, expanded judge discretion, diversity, and infrequent oversight” can work against defendants’ interests “and create the possibility that traffic court operations will dip below basic, constitutional rights floors.” Wide discretion enables a judge to be particularly lenient with the driver, who, for example, was rushing to take her pregnant wife to the hospital. But it also creates no checks for bias or other now well-documented injustices wrought by traffic policing. Indeed, Weinstein-Tull’s interviews reveal that traffic court judges do not consider evaluating racial discrimination claims as part of their job. Moreover, these judges exercise this discretion with effectively no oversight—virtually no appeals, no media attention, and no lawyers in the courtrooms observe, let alone constrain, judges as they mete out fees, fines, punishment, or lenity.

At the end of the Article, Weinstein-Tull invites us to think about how traffic courts inform our conception of civil justice in this country. He asks, “What exactly is traffic court?” Like other state civil courts, traffic courts defy conventional notions of courts that are so deeply rooted in our experiences (as lawyers and law professors) that overwhelmingly focus on federal courts. They are more diverse, more informal, and less grounded in law than federal court. They share these traits with other state civil courts, with other local courts Weinstein-Tull has discussed in other work, and with the criminal side that Alexandra Natapoff has documented. They also share traits with state and local administrative agencies. The masses of cases and the lack of meaningful oversight leads Weinstein-Tull to suggest that for traffic courts be treated like administrative agencies for oversight purposes—monitored by practices such as the “secret shopper” method and regular audits—rather than relying on judicial review.

I would ask a different but related question—what traffic courts are for. Are they civil or criminal? Are they intended to develop law (surely not), raise revenue, resolve factual disputes, enforce traffic safety, punish bad drivers, or discourage unreasonable speeding? One could imagine a state auditing traffic courts to ensure they collected sufficient fees and fines to fund the public fisc, or to ensure that traffic policing did not have a disparate racial impact or impose excessive punishments for drivers of color. These are very different audits. They raise questions not only about the importance of these courts, which are pervasive in our society, but also about the state and the role of civil justice. To determine whether traffic courts are mismatched to their purpose, one must identify what their purpose is. And the answer to that question, like their procedures and organizational structures, also may vary across the country. All the more reason for us to recognize the importance of these courts and to continue to study them—which is Weinstein-Tull’s admirable call to arms.

The Business of the Supreme Court Law Clerks

Jun 2, 2023 Marin K. LevyAdd a Comment

Marin K. Levy

Have you ever wondered how Supreme Court Justices came to have law clerks? (Are you wondering it now?) That story begins in 1882, when Justice Horace Gray joined the Court from the Massachusetts Supreme Judicial Court and brought with him a “legal secretary” to serve for one year. While Justice Gray originally paid out of pocket for his assistance, Congress began funding the position in 1886 (with a salary of $1,600 per year!). By the 1970s, Congress had increased the complement of clerks to four—a number that has remained constant. What has also remained constant is how desirable these positions are, with past clerks going on to top positions in the academy, bar, and the judiciary itself. (Of the current members of the Supreme Court, Chief Justice Roberts, Justice Kagan, Justice Gorsuch, Justice Kavanaugh, Justice Barrett, and Justice Jackson all served as law clerks).

Given how valuable these positions are, one may wonder who else has filled them. Where did they attend law school, and college before that? For whom did they clerk? Which of these factors seemed most relevant in ultimately being chosen to clerk on the Court? What occupations did they pursue following their time on First Street and how critical was the clerkship for their later success? (Again, if you were not wondering about these questions before, are you wondering now?). For as much as has been written about the Court and its Justices, little could be called a comprehensive analysis of the “world of Court clerks as an institution.” Enter court scholars Tracey E. George, Albert Yoon, and Mitu Gulati, with their insightful new article on the subject.

In different collaborations (and solo projects), George, Yoon, and Gulati have added to our collective understanding of the judiciary, on topics ranging from the career paths of magistrate judges to the role of chief circuit judges. They are an ideal team to examine what characteristics lead to success in Court clerk selection and success afterwards.

They begin their analysis with a dataset of 1,426 former clerks from 1980 through 2020. The first findings are key, descriptive ones. Males comprise 69 percent of Court clerks during their window; the gender disparity has (unsurprisingly) shrunk over time, although has not disappeared—the authors note that men made up nearly 60 percent of clerks in recent years. A similar story holds for ethnicity—87 percent of clerks were white, although that percentage, too, shows a “modest downward trend.”

The authors then turn their sights to past clerk experience—both educational and professional. Eighty-six percent of clerks went to a “top-14 school,” with Yale and Harvard doing most of the heavy-lifting here—forty-five percent of the clerks count one or the other as their legal alma mater. Statistics about clerkships with lower court judges show a comparable concentration. The top 10 percent of judges (by placement of clerks to the Court) sent 902 clerks—or 54 percent of the set–to one of the Justices. The top twenty-five percent of judges claim 75 percent of all clerks placed. (And as one notable datapoint, Justice Kavanaugh was the top “feeder” during the 2000s, sending 34 of his D.C. Circuit clerks to the Supreme Court.)

From here, Some Are More Equal Than Others takes a fascinating tact. Rather than focus on those who attained Supreme Court clerkships, the article seeks insight into the selection process by focusing on those who did not. They look at JD graduates of Harvard Law School from this same period—a total of 22,475 observations. What emerges is quite interesting, including surprising findings about the relevance of undergraduate education. Cum laude graduates of Harvard, Yale, or Princeton are nearly three times more likely to ultimately be chosen as Supreme Court clerks than cum laude graduates from 19 other selective schools. Magna cum laude graduates from Harvard, Yale or Princeton are selected at a 50 percent higher rate than magna cum laude graduates from these other institutions. In other words, it is not simply where one attended law school (and how one did there) that matters—where one attended college affects this larger selection process.

Finally, having analyzed who Supreme Court clerks are and how they got where they did, the authors look to where they went from there. Among the clerks they were able to follow, 44 percent landed at law firms, 26 percent in academia, 10 percent in government, 7 percent in the judiciary (including the six current Court members), and 13 percent outside these categories. This section offers interesting further findings. For example, of those clerks who went into law firms, the authors found no educational (undergraduate and law school) or ethnicity differences in whether former clerks made partner. The one characteristic that did matter? Gender–women clerks were fifty percent less likely to be at the top of their firms.

Stepping back, George, Yoon, and Gulati tell an important story about the composition of the universe of Supreme Court clerks over the past forty years. They have collected the data and undertaken the critical analysis to provide rich descriptive statistics of this group. What’s more, they have uncovered interesting and surprising results in places—such as the importance of one’s undergraduate education in the larger selection process. Ultimately, they have added to our collective understanding of the “clerk world” as an institution—a valuable service to provide to the academy, the bar, and the judiciary itself.

Normalizing Procedural Norms

May 15, 2023 Allan ErbsenAdd a Comment

Allan Erbsen

Civil procedure professors frequently experience the following classroom scenario. The professor asks a bright and well-prepared student to explain how lawyers and judges should react to a given set of facts. The student has parsed the relevant rules and analyzed opinions that interpret the rules. Drawing on this knowledge, the student articulates factors that will guide discretion. But the professor interjects that some of the student’s plausible assumptions are inconsistent with the reality of civil litigation. For example, lawyers often are reluctant to file certain kinds of motions that seem sensible, and judges often are reluctant to grant certain kinds of motions that seem compelling. Similarly, lawyers might pursue successful strategies that rules seem to foreclose, and judges might innovate in ways that rules do not contemplate. The student then asks how lawyers are supposed to know when to take rules and doctrines at face value, and when to surmise that atextual norms will supersede. Answering that query about the relationship between procedural law and procedural norms requires wading into murky waters.

Diego Zambrano navigates the murky intersection between law and norms in his forthcoming article, The Unwritten Norms of Civil Procedure. He contends that civil procedure scholars have not embraced a central insight of the law and society literature as systematically as scholars in other fields. That literature has repeatedly demonstrated that atextual norms can cause law in action to diverge from law on the books. Although civil procedure scholars have developed this insight in many specific contexts, they have not created what Zambrano calls a “trans-procedural” account of norms that aggregates lessons from distinct contexts. Zambrano’s article explains why a trans-procedural account would help scholars describe civil procedure more accurately and reform it more effectively.

Zambrano begins by defining procedural norms and explaining how they form and persist. In his parlance, procedural norms are “informal patterns of behavior or practices among litigation actors.” These norms are insufficiently rooted in authoritative sources to be “law.” But they are insufficiently abstract to be “values.” They thrive because judges and lawyers operate within close-knit communities and seek respect from peers. In this cloistered environment, a “sense of obligation” and a fear of “social sanctions” are mutually reinforcing. Judges and lawyers want to emulate influential innovators and avoid being perceived as troublesome outliers. These repeat players therefore create, internalize, and enforce procedural norms. In effect, judges and lawyers inhabit a web of expectations in which they are both the spider and the prey.

The article’s abstract sociological account of procedural norms frames a concrete discussion of how norms operate in practice. Zambrano analyzes several archetypes to illustrate the diverse functions that procedural norms serve. Some norms permeate all aspects of decisionmaking by defining basic goals of litigation. An example is a norm positing that “an MDL resolution that does not fully end the case is a failure.” Judges who adhere to this norm feel pressure to bend—and possibly break—the FRCP to promote a global settlement. In contrast, some norms apply only to narrow questions and encourage courts to limit rather than expand their authority. These limits animate the norm against granting Rule 11 sanctions even when a party’s conduct seems to merit punishment–Zambrano contends this explains why judges imposed sanctions on 2020 election deniers less swiftly than lay commentators anticipated. Unlike the foregoing norms imposed by judges, some norms emerge from decisions by lawyers. For example, structures have evolved for managing cooperation among co-counsel in multi-party litigation.

Although influential ideas can propagate among repeat players, collective action problems can obstruct the process of innovation and replication. An external nudge might therefore be necessary to generate ideas capable of becoming norms. Zambrano observes that norm entrepreneurs can provide this nudge by bringing stakeholders together to identify best practices that evolve into norms. An example is the Sedona Principles of e-discovery, which emerged from a collaborative process consciously designed to influence judges and lawyers.

Zambrano’s descriptive explanation of norms informs his prescriptive suggestions for “harness[ing] the benefits of norms while decreasing their costs.” The potential benefits of norms are tantalizing. Norms can enable a well-informed community of experts to address challenges more effectively than is possible through the formal lawmaking process. But informality has a dark side. Norms can subvert legal entitlements and prioritize the preferences of unaccountable elites. Zambrano responds to these concerns by proposing that scholars identify “design principles” that optimize the content and use of procedural norms. Relevant questions that would influence these principles include: when do norms have a comparative advantage over rules, how can norms effectively incorporate expertise, and how can courts craft experiments that can potentially generate norms?

These norms are especially salient in the present moment. Many commentators have observed that the politicized process for appointing federal judges risks polarizing the judiciary. Political rifts have also fragmented the bar. If procedural norms thrive because judges and lawyers are members of a close-knit community that values reputation, then polarization could undermine norm development. Some judges and lawyers might perceive themselves not as members of a broad community, but as members of a subcommunity with a unique set of priorities. The subcommunity may view adherence to norms as needlessly constraining and view disruption as a virtue. Scholars should therefore consider how to design procedural norms that can survive the fragmentation of professional networks. Going a step further, perhaps new procedural norms can directly combat polarization. For example, judges may develop a norm that high-stakes litigation should not occur in single-judge divisions when there is evidence of forum shopping. Similarly, a norm might encourage restraint when deciding whether injunctions against government programs should extend to nonparties.

Zambrano has shown that procedural norms are ubiquitous, tenacious, and consequential. His nuanced analysis will help scholars craft more precise descriptions of civil procedure and more potent prescriptions for change.

Fix It

May 1, 2023 Adam N. SteinmanAdd a Comment

Adam N. Steinman

For every right, there is a remedy. This venerable principle is found both in ancient languages (“ubi jus, ibi remedium”) and on pages of our own judicial canon so foundational that they call to us from a bygone typographical era (“it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy by fuit or action at law, whenever that right is invaded.”). When federal constitutional rights are violated, however, the path to a meaningful remedy is often impassible. Criminal defendants whose state court convictions were tainted by constitutional violations must navigate myriad obstacles to federal habeas relief, particularly those that Congress imposed in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). For those who suffer constitutional violations in other contexts and seek relief in federal court under § 1983, qualified immunity, the Eleventh Amendment, limits on municipal liability, and various procedural restrictions can block relief regardless of their claims’ substantive merit.

Two excellent articles offer ways to fix the current state of affairs. Brandon Garrett and Kaitlin Phillips propose changes to AEDPA and other doctrines governing habeas corpus petitions in federal court. Alex Reinert, Joanna Schwartz, and Jim Pfander examine how state and local laws can improve the enforcement of federal civil rights. In both pieces, the authors deploy their deep scholarly expertise to provide concrete, practical, thoughtful, well-crafted proposals that deserve careful attention from academics, advocates, lawmakers, and anyone else interested in these important issues.

In AEDPA Repeal, Garrett and Phillips begin with the story of Shirley Ree Smith, whose unsuccessful federal habeas challenge—which went all the way to the Supreme Court—exemplifies how AEPDA can thwart federal court scrutiny of whether state criminal proceedings comport with constitutional requirements. They note, however, that AEDPA is not the sole culprit. Effective habeas review is also undermined by restrictive judicially created doctrines that had taken shape even before AEDPA’s troubling statutory provisions were enacted.

After summarizing the many significant restrictions facing habeas petitioners, Garrett and Phillips get down to business—proposing detailed revisions of federal habeas statutes that would address several ways that current doctrines weaken the ability of federal courts to provide relief via habeas corpus. First up is AEDPA’s “relitigation bar” (§ 2254(d)(1)), which prevents de novo review of a petitioner’s federal claims. Although their primary recommendation is simply to delete the provision, they propose alternative revisions as well.

Next, the authors take on the non-retroactivity doctrine stemming from the Supreme Court’s decision in Teague v. Lane. Among other things, they propose language that would preserve habeas review of mixed questions of law and fact by clarifying that a habeas claim would be impermissibly retroactive only when it relies on a “pure question of law” that was announced after the state court’s decision and that had not been made retroactive by the Supreme Court. Finally, they propose modifications to § 2244(b)’s provisions on second or successive habeas petitions, § 2244(d)’s one-year statute of limitations, and the provisions in § 2254 governing exhaustion and evidentiary hearings.

New Federalism addresses a different set of roadblocks to the enforcement of federal civil rights, and the authors’ proposals target a different audience. Writing in the wake of numerous highly publicized police killings, Reinert, Schwartz, and Pfander look to state and local mechanisms and institutions. They identify some positive recent developments on this front—including a new state-law cause of action in Colorado—but they note significant resistance as well. As a descriptive matter, the authors provide an exceptionally helpful account of the existing state and local landscape—not only state systems for vindicating wrongs by governmental officials, but also the budgeting, indemnification, and litigation practices of state and local entities that can impact the enforcement of constitutional rights.

Reinert, Schwartz, and Pfander articulate several concrete solutions. First, they urge state governments to enact analogues to § 1983 that do not include the problematic doctrines that exist at the federal level. Their model statute creates a right to sue for violations of both state and the federal constitutions, and provides that officers would not enjoy qualified immunity from monetary damages claims. They also propose expanded vicarious liability and full indemnification of individual officers by the deeper-pocketed governmental entities that employ them, ensuring that plaintiffs will be paid when they win.

In addition to enhancing the availability and enforceability of judicial remedies, the authors suggest a range of beneficial policy practices. These include internal sanctions for individual officers and departments when violations occur; public disclosure of settlements and judgments; requiring the development of corrective action plans; and policies encouraging governments to take the full public interest into account (not simply narrow, win-at-all-costs litigation goals) when defending against constitutional claims.

In both pieces, the level of care and precision with which the authors develop their proposals is commendable. Each article contains a detailed appendix with specific statutory language for lawmakers to put forward. The authors respond conscientiously to potential objections, and they situate their proposals within the broader normative goals and theoretical models that inform their respective areas of focus.

It remains to be seen, of course, the extent to which relevant entities—whether at the federal, state, or municipal level—will be willing to adopt any of these solutions. But it is a welcome contribution to have such well-regarded scholars put pen to paper and offer blueprints for progress should the political wherewithal materialize. Let’s hope that it does.

State Civil Courts of Racial Oppression

Apr 13, 2023 Brooke D. Coleman2 comments

Brooke D. Coleman

The authors of Racial Capitalism in the Civil Courts bring together two underexamined areas of civil procedure scholarship—the state civil court system and race. Using the theory of racial capitalism as a lens, the authors argue that state courts, by design and effect, entrench the inequality upon which capitalism relies. Instead of providing a respite from injustice, state civil courts function by processes in opposition to traditional conceptions of fair procedures. For example, most individual defendants are without representation while the corporate plaintiffs have lawyers; there is little or no discovery; and there are high rates of default judgments. Moreover, racialized litigants bear the brunt of state court processes and their shortcomings. The authors argue that this perversion of justice is no accident but is instead by design.

In the wake of 2020’s racial reckoning, scholars have paid more attention to how race impacts the civil legal system. But much of the scholarship to date has focused on impact—how race drives one’s experience of the civil legal system through lack of access, how one is treated within the system, or how racial discrimination claims are adjudicated. Unlike the deep literature on the criminal legal system, which examines how systems of oppression—including the institution of slavery—have characterized the system’s development, no robust studies examine how the civil legal system entrenches racial inequities.

The authors engage racial capitalism as their framing device for this examination. Racial capitalism holds that racism and capitalism are inextricably linked. According to the theory, inequality is a requirement of capitalism and racial systems of oppression provide that necessary inequality. In essence, capitalism functions because systems of oppression provide cheap labor and prevent workers from effectively fighting back.

They identify four aspects of racial capitalism that are critical to understanding how the theory functions within state courts. First, racial capitalism relies on racialized systems of exploitation and extraction, enabling extraction of labor at rates that allow for those in power to make the most money. Second, capitalism was founded on and continues to require race-making practices designed to entrench inequality. Third, racial capitalism is not a stagnant structure; it can adjust to changing contexts such as granting limited rights to racialized populations while still exploiting those same groups. Finally, racial capitalism—although sounding in economic terms—is a nimble concept that applies to non-market systems like courts.

Considering these key aspects of racial capitalism, the authors explain how the state civil courts “both enforce and legitimize racial capitalism” by facilitating the dispossession of assets from racialized groups. For example, Black women are disproportionately defendants in eviction courts, which focus not on fair housing and sufficient shelter but on collecting rent. The courts also commodify individuals in a racialized way. Judicial processes around child support provide a ready example. Noncustodial fathers, disproportionately Black men, are not allowed to argue about how to maintain a relationship with their children; the proceedings are limited to determining their obligation to pay. Courts ignore the human side of a parent’s experience in favor of the bottom-line determination of the money at stake.

The authors also explore how state civil courts serve non-human corporations and how those corporations financially benefit. Corporations—largely controlled by, and beneficial to, white individuals—routinely use state civil courts to facilitate the transfer of assets to them from individuals who are disproportionately people of color. Other than the state itself, corporations are the most frequent plaintiff in state civil court and they use the court system to generate, in the aggregate, large sums of money from a disproportionately non-white set of defendants. This should not be characterized as neutral enforcement of a contract or agreement. Context matters. Combined with predatory creditors, landlords of inhabitable housing, and state-run aid systems that exploit families, the state civil courts become tools of capitalism by enforcing laws in ways that fail to account for the racialized context of each claim.

To demonstrate the theory, the authors use debt collection as a case study. Predatory lending practices have long targeted Black communities. Instead of receiving the realistic opportunity to build wealth, Black families have been caught in a system that negatively compounds their situation. State courts act as a critical part of this cycle by enforcing debt collection practices against individuals who default on payments. And they do so through a process in which the debt collector is represented by counsel while the individual is not, where judges might handle hundreds of cases a day, where service of process practices are dubious, and where default judgments are entered without examination. The result is unsurprising—the plaintiff wins. And with that win, more wealth is extracted, more human beings are commodified, and more families suffer—in an undeniably racialized way.

The lens of racial capitalism demonstrates how state civil courts function as cogs in capitalism’s wheel of oppression. And while the authors acknowledge that courts cannot single handedly defeat racial injustice, they challenge courts to refrain from facilitating it. This essay is impressive for how it utilizes the theory of racial capitalism and for how it highlights the need for more theoretical work on how race intersects with judicial processes and procedures. It is an exciting contribution to what I hope will become a burgeoning area of procedural scholarship.

I also want to emphasize how this essay is important not just for what is says but for how it says it. The authors name the individual scholars who originated and have long articulated pieces of these theories and arguments. And this naming occurs not only in footnotes but in the text. The authors identify a litany of fabulous and significant scholars, many of whom are women of color. This level of inclusion and recognition is unusual in procedural scholarship, especially in pieces published in journals of this caliber. This essay disrupts not only the theoretical framework of procedure but also the business of how we do academic scholarship. I am grateful to forums like Jotwell that create opportunities to bring attention to important work that might be otherwise marginalized. I also want to extend a message of gratitude and admiration to these authors for pushing to create an inclusive academic landscape. Let’s hope that more of us—myself included—follow their lead.

Inter-State Litigation on the Supreme Court’s Original Docket

Mar 31, 2023 James E. PfanderAdd a Comment

James E. Pfander

We have two reasons to welcome Heather Elliott’s paper on the Supreme Court’s original jurisdiction in state-party cases. First, she diagnoses and proposes a cure for what she describes as discrimination in the administration of the Court’s original docket. Second, she presents this paper as the opening salvo in an extended engagement with the Court’s original jurisdiction. Students of federal procedure and jurisdiction should attend to both developments.

As for the problem, the Supreme Court exercises discretion in deciding whether to allow one state to sue another state in the Court’s original jurisdiction. For example, the Court refused to allow pro-Trump Texas to docket an original suit to challenge the 2020 election results in pro-Biden states that certified electors in accordance with their states’ popular vote. Many welcomed the rejection of the Texas case, but Elliott invites us to consider the basis for rejection. Instead of allowing Texas to docket the case and then rejecting it for want of standing, the Court declined to allow docketing. Two Justices wrote separately to question whether the Court can properly exercise discretion in deciding when to allow the states to invoke its original jurisdiction, a jurisdiction conferred in Article III and often characterized as mandatory and self-executing.

Elliott reconstructs the history of original jurisdiction as a grant of power designed to match the dignity of the tribunal with the dignity of the parties. But the Court no longer administers its original docket in a way that befits those state equality and dignitary interests. Instead, because Congress made the Court’s original jurisdiction over inter-state disputes exclusive, the Court’s discretionary refusal to hear these cases leaves states with no alternative forum in which to adjudicate their claims and vindicate their legal rights.

Elliott’s solution is a new statute, in which Congress assigns concurrent original jurisdiction over inter-state disputes to some appropriate lower federal court. That tribunal would take the heat off the Court’s original docket, while allowing the Supreme Court to resolve such matters on appeal. Identifying the proper lower court presents some design questions. Elliott supports the creation of a specialty court, recognizing that the existing federal district courts have geographic ties to specific states and may for that reason lack the necessary appearance of neutrality. A specialized lower court with authority to convene sessions throughout the country might offer an effective alternative forum for inter-state disputes.

While I agree that discretion may pose a problem and that Congress has full authority to give lower federal courts first-instance authority over such matters, we might ask what the Court should do while waiting for the Godots in Congress. Among its innovations in administering its original docket, the Court relies on Senior Article III judges to serve as special masters. With the Court’s power to select and assign original matters to a special master of its choosing, the Court can ensure first-rate case management and high-quality legal analysis. What’s more, the master’s recommendations trigger an appellate-style process for the review of facts and law. Although the Court’s jurisdiction is nominally original, its decision-making process resembles the exercise of appellate jurisdiction. One question from a design perspective might be whether such a model offers a practical substitute for the more formal model of concurrent jurisdiction Elliott supports.

But such a workaround does not address Elliott’s real concern that the Court allows docketing of inter-state matters in only 44% of the inter-state petitions filed. In evaluating this concern, it may be worth looking closely at the matters the Court turns away. Some inter-state cases present questions that only the Court can resolve, such as disagreements about borders or allocation of interstate waters. But with the rise of aggressive state Solicitor Generals, many inter-state cases may be structured to present issues of federal law that might be resolved through other forms of litigation.

Unlike a border case, which necessarily implicates the state’s interest as a state, states can structure some inter-state litigation to proceed in a lower court. Just as citizens might challenge election results through ordinary litigation in federal district court, Texas might pursue Ex parte Young actions against state election officials in the relevant states as nominal official parties. The Supreme Court’s refusal to docket the Texas litigation may have reflected an awareness that Texas could pursue functionally equivalent relief through an action in lower federal courts. With a concurrent docket available, such declinations do not so obviously deprive the states of an essential remedy.

Elliott’s analysis of the turn-aways points both ways. She reports that the Court continues to accept most border and inter-state water cases, a somewhat hopeful conclusion. Yet she sees denials in disputes that present no functionally acceptable alternative forum. Those denials give rise to the concerns she articulates with the possibly discriminatory character of the Court’s handling of its docket. Until Congress steps up, we might all agree that the Court should pay special attention to inter-state disputes that cannot claim an alternative forum through an alternative litigation structure and vehicle.

We have much to anticipate as Elliott’s engagement with the subject continues. She might put her perspective on the original docket into conversation with criticisms of the shadow docket; a Court that shies away from the fact-finding inherent in original jurisdiction should perhaps be leery of granting emergency stay orders that effectively resolve disputes on inadequate factual records. Elliott might help us better understand the scope of the original jurisdiction, shedding light on whether it applies only to party-alignment matters or reaches federal question claims against the states.

Finally, I would welcome greater insight into the enduring question of what role original jurisdiction, as constitutionally conferred, should play once Congress creates lower federal courts. Some believe the Court’s original docket sought to ensure federal adjudication of a small slice of matters in an imagined world where Congress invoked its Madisonian Compromise authority to create a federal judiciary relying primarily on state courts of first instance. Once Congress has created lower federal courts, extensive reliance on the Court’s original docket may be tougher to defend.

Originalism’s Procedural Puzzle

Mar 10, 2023 Fred O. Smith, Jr.Add a Comment

Fred O. Smith, Jr.

Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).

On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.)

Sohoni offers numerous examples; consider three.

First, is Washington, D.C. a “state” for purposes of diversity jurisdiction in Article III, which permits suits “between citizens of different States?” Hepburn & Dundas v. Ellzey said no in 1805. Writing for the Court, Chief Justice Marshall acknowledged that not treating citizens of the District of Columbia as citizens of a state produced an odd and perhaps undesirable set of consequences. More than a century later, in a fractured set of opinions, National Mutual Insurance Co. v. Tidewater Transfer Co., said they are, assigning greater weight to these consequences. Sohoni observes that this “outcome—the continued allowance of diversity jurisdiction to D.C. citizens—is pragmatic. It is reasonable. It is fair. It is just not originalist.” (P. 977.)

Second, are corporations “citizens” for suits between citizens of different states? Corporations rely on this head of jurisdiction to sue (and be sued) in federal court. Sohoni shows, however, that treating corporations as “citizens” is incompatible with early cases such as Bank of the United States v. Deveaux, where “Chief Justice Marshall explained that a corporation was an ‘invisible, intangible, and artificial being’ and ‘certainly not a citizen.’” (P. 979.) Deveaux required federal courts to look to the citizenship of a corporation’s shareholders when deciding whether diversity jurisdiction was permissible. When paired with a complete diversity requirement, however, that approach created a mess. The Court in Louisville, Cincinnati & Charles R. Co. v. Letson and Marshall v. Baltimore & Ohio Railroad Co. opted for pragmatism over historicism, allowing corporations to be treated as citizens for the purposes of diversity jurisdiction. Sohoni accordingly concludes: “Treating corporations as citizens in diversity can claim on its behalf a slew of pragmatic benefits. What it cannot claim is fidelity to original meaning.” (P. 982.)

Third, as a matter of due process under the Fifth and Fourteenth Amendments, what contacts must a defendant have with a state before a plaintiff can hale him into courts in that state? The doctrine turns on broad appeals to “fair play and substantial justice” rather than deep historicism. In some areas, the Court has expressly rejected history in favor of fairness and pragmatism. Shaffer v. Heitner refused to allow a court to attach a defendant’s property within a forum for claims unrelated to that property. Such attachment was “an ancient form without substantial modern justification,” and “continued acceptance” of it “would serve only to allow state-court jurisdiction that is fundamentally unfair to the defendant.” (Pp. 986-87.)

Collectively, these examples show that “rather than copying its content solely from evidence of original meaning, the law of civil procedure has drawn its substance from pragmatism and policy; from the impetus of changing times, technology, and philosophies; from values such as fairness; and from simple common sense.” (P. 992.) Procedural law’s nonoriginalism may “provide a particularly vivid example of how in the face of old enough reasons or good enough reasons, and in the absence of any political pushback one way or the other, claims to the primacy of original meaning simply are not very compelling.” (P. 992.)

Sohoni identifies evidence that the Court may soon confront, and perhaps close, the gap between originalism and constitutional civil procedure. Justice Thomas’s dissent in Liu v S.E.C. questioned the absence of an originalist foundation of disgorgement remedies. Justice Gorsuch’s concurrence in Ford Motor Co. v. Montana Eighth Judicial District Court questioned the Court’s markedly non-originalist approach to personal jurisdiction. Parties and amici emphasize originalist arguments in Mallory v. Norfolk Southern Railway Co., a pending case about the constitutionality of a Pennsylvania statute that requires a corporation to consent to personal jurisdiction before doing business in the state.

Sohoni argues that this looming confrontation between doctrine and history may enrich debates about the efficacy and proper scope of originalism. The approach the Court takes in cases such as Mallory may offer lessons about: whether originalist arguments have the most force in the ideologically charged spaces that are aligned with the conservative legal movement; whether or when precedent and stare decisis are more compelling than originalism; and the degree to which originalism operates as a constraint on judicial discretion. When interpreting the due process clauses, for example, will originalism prevail when it serves to further subordinate the historically marginalized groups who had little public voice at the Founding, while non-originalist approaches reign when they better serve oligarchic ends? Time will tell. But we should take up Sohoni’s invitation to watch closely in our appeals to and appraisals of the Court.