Faculty Bibliography
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America may be back, as Joe Biden says, but at the Supreme Court, with its extremely conservative new majority, America is increasingly unrecognizable.
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The role of a reckoning is to get beyond politics.
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In the world according to Professor Michael Stokes Paulsen, impeachment turns out to be a remarkably simple subject. So simple, in fact, that it’s unclear why it would merit a book, let alone a spate of studies. Here’s the scoop: A few sources from the late 1780s decisively show that “the impeachment judgment is properly concerned... solely with the question whether the wrongs committed are themselves sufficiently serious wrongs as to warrant exercise of the impeachment power.” Nothing else can ever be relevant. If a legislator concludes that the President’s wrongs are “sufficiently serious,” he or she is obliged to vote for the President’s removal from office. And in assessing seriousness, legislators can look only to neutral factors derived from “original objective public meaning.” This approach shields us from “considerations of strategy, practicality, and partisan politics.” It also reveals that the impeachment power has been drastically under-utilized in American history: Andrew Johnson and Bill Clinton, and potentially James Buchanan and Woodrow Wilson (among quite a few others), should never have completed their terms in office. Only a partisan hack — with dodgy motives and even dodgier methods — could support any other view of impeachment. That’s where we come in: we’re the hacks. Professor Paulsen is explicit on this point. In his telling, we engaged in a devious “partisan gerrymander,” deliberately reverse-engineering an impeachment standard to ensnare as many Republicans as possible while letting Democrats off the hook. We were able to do so, Paulsen adds, only because we didn’t stick to originalist methods. By falsely asserting that originalism doesn’t provide a clear and determinate framework for impeachment analysis, we invented judgment calls vulnerable to partisan manipulation. And then we engaged in precisely such skullduggery, making up new standards and invoking irrelevant considerations. But, alas, we did a bad job. Having written a whole book to oust President Donald J. Trump while saving Clinton’s legacy, we stumbled at the finish line — first by offering “contradictory warnings” about the strategic risks of impeachment, and then by failing to demand Trump’s removal. Professor Paulsen blends accusations of willful bad faith with insinuations of scholarly and strategic incompetence. These aren’t minor charges. You might therefore expect that Paulsen would have engaged seriously with our arguments. If so, you’d be disappointed. As one of our colleagues candidly remarked, “It’s almost like he didn’t read the book.” In accusing us of a partisan gerrymander and methodological dishonesty, Paulsen repeatedly and egregiously mis-describes our thesis, reasoning, and conclusions. He then ignores entire sections of the book that refute core premises of his “naïve” view. Throughout, he rips text out of context to complain about contradiction. In short, he has reviewed a book that we didn’t (and wouldn’t) write. And he has accompanied that “review” with a supposedly originalist theory of impeachment that is neither originalist nor persuasive.
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Breaking the law is an impeachable offense but not the only one. We need to ask if America can survive this presidency and, if we do, what kind of nation will we have become.
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Calls to remove a president have become a regular feature of American politics over the past two decades, making it harder to achieve if truly needed.
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Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded. No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption. The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it. The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld. The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart. The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.
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In the five years since "Citizens United", that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no." As a case dealing with a particular controversy over a proposed publication, I believe "Citizens United" was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, "Citizens United" has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naïve vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. It is those trends, rather than the outcome of "Citizens United" as applied to the facts before the Court, that need to be revisited. Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege — throughout First Amendment law — an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. I believe the Court would do well to rethink that approach.
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In the aftermath of Obergefell, it quickly became a sign of sophistication to treat Justice Kennedy’s opinion with knowing condescension. The decision may have been a political masterstroke, many thought, but it was a doctrinal dud. Kenji Yoshino’s Comment demonstrates just how glib these detractions are, and eloquently explains how Kennedy’s opinions in Obergefell and its predecessor cases have revolutionized the Court’s fundamental rights jurisprudence. In this Response, I offer my own characterization of Kennedy’s contribution. As I see it, Obergefell’s chief jurisprudential achievement is to have wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity – and to have located that doctrine in a tradition of constitutional interpretation as an exercise in public education. Equal dignity, a concept with a robust doctrinal pedigree, does not simply look back to purposeful past subordination, but rather lays the groundwork for an ongoing constitutional dialogue about fundamental rights and the meaning of equality. Obergefell is an important landmark, but it will not be – and should not be – the last word.
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Laurence H. Tribe, The Clean Power Plan is Unconstitutional, Wall St. J., Dec. 23, 2014, at A13.
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"From Citizens United to its momentous rulings regarding Obamacare and gay marriage, the Supreme Court under Chief Justice John Roberts has profoundly affected American life. Yet the court remains a mysterious institution, and the motivations of the nine men and women who serve for life are often obscure. Now, in Uncertain Justice, Laurence Tribe and Joshua Matz show the surprising extent to which the Roberts Court is revising the meaning of our Constitution. This essential book arrives at a make-or-break moment for the nation and the court. Political gridlock, cultural change, and technological progress mean that the court's decisions on key topics--including free speech, privacy, voting rights, and presidential power--could be uniquely durable. Acutely aware of their opportunity, the justices are rewriting critical aspects of constitutional law and redrawing the ground rules of American government. Tribe--one of the country's leading constitutional lawyers--and Matz dig deeply into the court's recent rulings, stepping beyond tired debates over judicial "activism" to draw out hidden meanings and silent battles. The undercurrents they reveal suggest a strikingly different vision for the future of our country, one that is sure to be hotly debated. Filled with original insights and compelling human stories, Uncertain Justice illuminates the most colorful story of all--how the Supreme Court and the Constitution frame the way we live"-- Provided by publisher.
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As everyone knows, the United States Constitution is a tangible, visible document. Many see it in fact as a sacred text, holding no meaning other than that which is clearly visible on the page. Yet as renowned legal scholar Laurence Tribe shows, what is not written in the Constitution plays a key role in its interpretation. Indeed some of the most contentious Constitutional debates of our time hinge on the extent to which it can admit of divergent readings. In The Invisible Constitution, Tribe argues that there is an unseen constitution--impalpable but powerful--that accompanies the parchment version. It is the visible document's shadow, its dark matter: always there and possessing some of its key meanings and values despite its absence on the page. As Tribe illustrates, some of our most cherished and widely held beliefs about constitutional rights are not part of the written document, but can only be deduced by piecing together hints and clues from it. Moreover, some passages of the Constitution do not even hold today despite their continuing existence. Amendments may have fundamentally altered what the Constitution originally said about slavery and voting rights, yet the old provisos about each are still in the text, unrevised. Through a variety of historical episodes and key constitutional cases, Tribe brings to life this invisible constitution, showing how it has evolved and how it works. Detailing its invisible structures and principles, Tribe compellingly demonstrates the invisible constitution's existence and operative power.
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In this essay, I consider the U.S. Supreme Court's recent decision in Wilkie v. Robbins, 127 S.Ct. 2588 (2007), holding that no federal action for damages may be brought by a cattle rancher in Wyoming against officers of the U.S. Bureau of Land Management for destroying his cattle and dude ranch business in deliberate retaliation for his refusal to give the Bureau an easement over his land without compensation by the Bureau and without its invocation of the federal power of eminent domain. The Court conceded that the rancher had no effective federal remedy other than such a damages action against the cumulative impact of the sequence of retaliatory actions taken by the federal officials and that the only remedies available to the rancher - suits under state tort law and under the federal Administrative Procedure Act - although potentially capable of redressing some of the individual actions taken by BLM officers against the rancher, could not have effectively prevented or redressed the "death by a thousand cuts" brought about by those officers. It conceded as well that Congress had neither precluded the judicial recognition of a federal cause of action for damages nor provided the kind of substitute that would displace such a cause of action under the doctrine of Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971). The Court reasons, however, that such a cause of action would present the federal judiciary with line-drawing difficulties that might not successfully prevent a flood of litigation and that, on balance, the case for recognizing such a cause of action was not established. This essay argues that this analysis represents an unacknowledged retreat from a well-established line of precedent under Bivens and that the analysis is unpersuasive even on its own terms, noting that the predicted flood of litigation had not materialized under the 140-year-old federal statute, 42 U.S.C. §1983, that created a cause of action for damages against conduct identical to that of the BLM agents in this case if committed by state rather than federal agents. The essay explores the incentives created by Wilkie v. Robbins for intentional circumvention of the Takings and Just Compensation Clauses by federal agents and addresses the dangers thereby created for any meaningful protection of private property sought by the Federal Government, as well as the dangers created for the meaningful protection of other constitutional rights against deliberate erosion by federal agents. Finally, the essay argues that the Bivens issue should not have been reached at all by the Supreme Court because it was demonstrably beyond the appellate jurisdiction of that Court and of the Court of Appeals in this interlocutory pre-trial appeal from a lower court ruling denying qualified immunity to the defendant officers even on the premise that their conduct, if in clear violation of established federal constitutional rights, would have given rise to damages under the Bivens doctrine.
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The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies.
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Re-published as: ♦Public Rights, Private Rites♦, 6 The Green Bag 289 (2003).
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Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as "simply not a close case." If the case was not close, the reasons are not those Lund so cavalierly assays. Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the "one-person, one-vote" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighing "votes of citizens differently, by any method or means." Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a "disinterested" analysis, this absurdly literal fidelity to "one-ballot, one-vote" is the essence of jurisprudence by slogan. Any coherent approach to "one-person, one-vote" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality. Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned "intent of the voter" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the "weight" of some votes cast in Florida would in some sense be less than the "weight" of others, that would not by itself describe the sort of deviation that would suffice to invalidate - either conclusively or presumptively - a scheme designed to ensure the legality and completeness of the total vote count. Strikingly, under the Court's own equal protection theory, the vote count previously certified in Florida - a tally that, because of the Court's decision to stop the recount in its tracks, effectively determined the outcome of a Presidential election - would itself be a manifest denial of equal protection, in light of the many votes that remained uncounted, and the undisputed fact (common to virtually every statewide method of voting and manner of tallying votes) that the voting process and the vote-count itself included a dizzying array of arbitrary and/or easily correctable inequalities. I argue that the Court's failure to grapple with the underlying equal protection issues, or to grasp the breathtaking implications of its equal protection holding (including the inconsistency between that holding and the outcome that it endorsed in Florida itself), evince the almost embarrassing bankruptcy of the rationale that the Court's majority adopted and that Professor Lund defends. Part II argues that Bush v. Gore presented a question that most likely never should have been decided by a federal court. Properly applied, justiciability is inextricably linked both with the institutional context in which judicial intervention is sought (including the remedial character such intervention would have to take) and with the substantive constitutional principles that undergird the allegedly "political" question at issue. Unless it is demonstrable that the political and administrative process itself is so structured that the political branches cannot be trusted to abide by constitutional norms preventing an impermissible form of exclusion or dilution of an identifiable individual's or group's rights of political participation without adequate opportunity for timely correction within the process itself, the case for judicial intervention that pretermits the political process is extremely weak. There is thus a strong connection between the veritable culture shock set off by the Supreme Court's intervention in the presidential election of 2000 and the proper characterization of the Court's action as a violation of the implicit "political process" doctrine that has governed our national life without much interruption from the outset. The structure of the Florida Supreme Court's recount order of December 8, including the role it assigned to the state court judge in addressing alleged inequalities, left open numerous avenues for correcting procedural inequities in ballot counting. And the alleged inequities were so complicated and so attenuated that to argue that the U.S. Supreme Court had before it a completed constitutional harm notwithstanding what the Florida courts and legislature, followed by Congress, might have done, seems bizarre.