[This post was co-authored with Professor Seth Barrett Tillman.]

There have been many news reports suggesting that the United States Department of Justice may pursue denaturalization proceedings against Representative Ilhan Omar. These proceedings can take the form of a civil suit under 8 U.S.C. § 1451. The United States may also bring a criminal indictment under 18 U.S.C. § 1425. While the criminal statute has a ten-year statute of limitations, the civil statute does not have any statute of limitation. Moreover, the civil statute requires a lower burden of proof: "clear, convincing, and unequivocal evidence which does not leave the issue in doubt." The civil proceeding also does not afford the defendant a jury trial. USCIS and Congress.gov have published detailed analyses of how denaturalization operates.

Here, we do not opine on the merits of a potential civil or criminal denaturalization proceeding against Omar, or what sorts of procedures and defenses she would have access to. Instead, we intend to explain what would happen to her congressional seat in light of denaturalization proceedings.

We start with the relevant constitutional text. Article I, Section 5, Clause 1 provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." (emphasis added) And Article I, Section 2, Clause 2 provides that "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."

Since the beginning of the Republic, there have been challenges as to whether a member-elect has the requisite years of citizenship. Professor Derek Muller's entry in The Heritage Guide to the Constitution (3d) on the Judge of Elections Clause explains two historically noteworthy challenges to qualifications:

In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members. One early and contested instance arose in 1793. The Pennsylvania legislature elected Albert Gallatin to the [United States] Senate. Gallatin, a member of the [Jeffersonian] Democratic-Republican party, was a rival of Alexander Hamilton, a prominent Federalist. Doubts arose about Gallatin's eligibility for the Senate. He was born in Switzerland and had resided in the United States for thirteen years. But it was unclear whether Gallatin had been a U.S. citizen for the requisite nine years. Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat. . . .

A[] notorious contest during Reconstruction came from the election of Hiram Revels [in 1870], the first black Senator. Opponents first charged that his election was improper because the governor of Mississippi who signed his certificate of election was only the provisional governor and therefore not authorized to certify the legislature's selection of Revels. Challengers also claimed that Revels was not "nine years a citizen" because he was not a citizen under the Supreme Court's decision in Dred Scott until the ratification of the Fourteenth Amendment in 1868 [and so Revels was only a citizen between 1868 and 1870]. Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen. In the end, the Senate seated him over the objection of a few Democrats.

For the sake of argument, let us assume that the United States initiates civil denaturalization proceedings before the new Congress meets in January 2027. This procedure would certainly take some time, and it may not even reach a final judgment (up to the resolution of certiorari) during the duration of Omar's (likely) elected two-year term. Still, absent a final judgment, we sketch out several possible issues.

First, could the House of Representatives determine that Omar lacks the qualifications to be a member of Congress (i.e., a citizen for seven years) in the absence of some judicial finding by a federal district court? The answer is "yes." The House of Representatives is a coordinate branch of government that can make its own determinations of fact when seating a member. The Constitution empowers the House to determine if a member-elect is a citizen and for how long he has been a citizen. There is no need to wait for a federal court to rule on the matter. No such prior judicial proceedings occurred in the case of Albert Gallatin. That question and its answer, we think, should not be controversial.

Second, could the House of Representatives judge Omar's qualifications in the middle of her elected term? Or, can those qualifications only be judged at the time when she is seated? We think it is reasonable to suggest, based on the text, that qualifications should only be determined at the outset of the new Congress, or when a member is first admitted and allowed to take her oath, but we admit there is no definitive answer here. The alternative view is that a member must have the requisite qualifications over the entire course of her elected term, and her house always retains the ability to adjudicate those qualifications if an objection is raised by another member. In these circumstances, a member could simply raise an objection to Omar's qualifications and seek a roll call vote. If determinations about qualifications continuously require a mere majority, as they do at the start of a two-year congressional term, then a mere majority might effectively "expel" Omar. On the other hand, it might be argued that where a mid-session disqualification vote has the effect of expulsion, then a two-thirds vote is required. We are not aware of any congressional precedents that provide clear analogues or guidance on this point. 

Third, what happens at noon on January 3 when the new Congress meets? At that juncture, a member could raise an objection to Omar's qualifications. And under established House precedents, Omar would be asked to "step aside" until her qualifications are settled. The potential chaos that could follow is ably described in an excellent article by Professor Brian Kalt: 

Under U.S. House precedent, any member-elect can challenge the right of any other member-elect to take the oath of office at the beginning of a new term. The uncontested members-elect then swear in and decide the fate of those who were forced to stand aside. If the House is closely divided and there are disputed elections at the margins, a minority party could exploit this procedure to try to seize control of the House. This would be outrageous and damaging, even if the effort failed. Contending for ultimate control, both sides could level motions, appeals, and tit-for-tat pre-oath challenges. The proto-House would degenerate into a chaotic mass of votes, meta-votes (about who gets to vote), and meta-meta-votes before anyone has even been sworn in. Instead of the House being controlled by the party that won the most seats in the election, it might go instead to the party that is most disciplined and unified—or, failing that, to the party that is more adept at parliamentary machinations. This nightmare is not completely hypothetical; the House once witnessed a power grab much like this—and it succeeded. But even an unsuccessful attempt could worsen the national partisan divide, weaken the House's legitimacy, and threaten the House's already dangerously low levels of comity. So could an attempt by a majority to bolster its advantage by a seat or two.

If the House splits 217-to-217, and Omar would be the 218th vote giving the Democrats an actual majority, the situation could quickly reach an impasse. Indeed, there may not even be enough votes to select a Speaker until Omar's contest is settled. Likewise, in the absence of any working majority, there may not even be enough support to appoint a committee to look into the matter.

Fourth, let us consider whether Omar could be arrested or detained at the start of immigration proceedings. She could be arrested and then incarcerated if indicted under the criminal denaturalization statute. The Constitution's Privilege from Arrest Clause (Article I, Section 6, Clause 1) provides "Senators and Representatives . . .  shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same." It is clear enough the criminal denaturalization offense is a felony. The clause would not immunize her against arrest for allegedly violating this statute.

There is a separate issue whether this clause would prohibit the government from seizing and then detaining Omar in civil immigration facilities under the civil denaturalization statute. We do not take a position whether the allegations made in this civil proceeding would amount to a "breach of the peace" under the clause. One might believe that this constitutional provision would preclude arrest of a Representative based on ongoing civil denaturalization proceedings, but because the Constitution's "breach of the peace" language lacks substantial development from the courts, we, at this juncture, take no position on this issue.

We raise two other issues that do not have settled answers. First, there is some authority for believing that the scope of the constitutional privilege against arrest extends to members-elect, and not merely just to seated members. So even if the House "sets aside" Omar during an election contest based on qualifications, she would still enjoy the same privilege against arrest that seated members enjoy. Second, there is an open question about when, during the House's two-year constitutional term, the privilege applies. The clause applies "during [a member's] Attendance at the Session of their respective Houses, and in going to and returning from the same." In light of NLRB v. Noel Canning, we have doubts this clause applies during intersession recesses longer than three days. During a period of time when the clause does not apply, neither Omar nor any other member (or member-elect) would enjoy any privilege against arrest.

Fifth, let us assume that a federal court issues a final judgment denaturalizing Omar, and all of her appeals and opportunities to seek reconsideration are exhausted. At that moment, she would no longer be a citizen of the United States. But the Constitution does not expressly require that a person presently be a citizen. The text provides:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

The citizenship requirement is phrased in the past tense: "been seven Years a Citizen." Once a person has held U.S. citizenship for seven years, that person will have satisfied the citizenship qualification for the rest of their life—even if, as an adult, they subsequently voluntarily, intentionally, and knowingly renounce their U.S. citizenship, and even if they do so while actually serving as a member. The text does not clearly require that a person have seven years of citizenship in the seven immediate years before he was elected. Under a literal reading of the text, a person who has held U.S. citizenship for seven years, followed by a renunciation of his citizenship while an adult (arguably) should be allowed to serve in Congress, even if he would not be able under federal law to vote for himself in any federal election. Admittedly, this literal reading of the Constitution's House Qualifications Clause is counter-intuitive. In our prior scholarly writings, we have repeatedly emphasized Dixonian strict legalism as the appropriate method of interpretation of constitutional text involving qualifications in order to maximize voter choice. That is the Democracy Canon.

Sixth, if Omar were denaturalized in 2027, one must still ask was she a citizen of the United States for seven years? Was she ever a citizen? In other words, is the effect of denaturalization to simply withhold citizenship and its benefits from that person going forward post-adjudication, or is the effect to create a legal fiction such that the person was never a citizen in the first place? Is denaturalization retroactive? By way of analogy, some have argued that Donald Trump ceased being President at some point on or after January 6, 2021, and all actions taken in the final two weeks of his administration were ultra vires. They argue that Mike Pence was, in fact, the real President! This position resembles the arguments that Hiram Revels was not a citizen before the ratification of the Fourteenth Amendment, in light of Dred Scott. We addressed this point in our article on Amendment XIV, Section 3: 

Is it really that implausible to think that Section 3 could apply retroactively to a person who was already out of office? Retrospective law-making is an American tradition. Consider the case of Senator Hiram Revels, who was the first black person elected to the United States Senate. His Senate term began in 1870. At the time, did he meet the requirements of being a citizen for seven years? After all, stretching from 1857 to 1863, Dred Scott was still the law of the land, and the Fourteenth Amendment was only ratified in 1868. Some senators argued that Revels was not qualified [arguing that Revel's citizenship only existed after the Fourteenth Amendment went into effect]. But the Senate administered the oath to Revels, in effect retroactively applying Section 1 of the Fourteenth Amendment's citizenship provision. Prior to 1868, Revels might not have experienced life as an American citizen for seven years. Under Dred Scott (1857), he was not a citizen. But the Fourteenth Amendment changed all that. Section 1 apparently retroactively made Revels a citizen for the time period he had experienced life as a non-citizen. And the Senate seated Revels.

When seating Revels, Reconstruction-era Republicans argued that Revels was a citizen for nine years (as is required for senators) even if he did not enjoy or experience any of the incidents of citizenship prior to 1868. By contrast, today, Republicans may argue that Omar was never a citizen, much less a citizen for seven years, even though she had all of the incidents of citizenship prior to January 2027.

The civil statute provides that denaturalization "shall be effective as of the original date of the order and certificate." In other words, the process relates back. If this understanding of our law is correct, even though Omar clearly spent more than seven years living in the United States as a citizen with a passport and even served in Congress, she would have never actually become a citizen. She may be viewed as something akin to a "de facto officer." (We use "akin" as we do not think rank-and-file members of Congress are "officers".) It appears that the law here may be unsettled. We expect that if a final judgment were reached by the courts denaturalizing Omar, and if Omar had exhausted all opportunities for reconsideration and appeal, then the House would rely on that finding. We do not say that the House would be strictly bound to rely on that final judgment. And again, if the federal courts only so concluded after Omar was sworn in and seated as a member, it is unclear what vote—a mere majority or two-thirds—would be needed to unseat and/or expel her. 

Seventh, what happens to any actions, including votes, taken by Omar if a court rules that she was not a citizen at the time she served in the House? To make the hypothetical more useful, imagine that she was the deciding vote that gave the House a majority to pass a bill. Had her vote not been counted, the House would have deadlocked 217-to-217, and the President would not have been able to sign it into law. If the vote took place under a prior Congress, such legislation would be insulated against judicial review inquiring into the qualification of members by Chief Justice Chase's decision in Griffin's Case. If the vote took place in the current Congress Congress, such legislation would be insulated against judicial review inquiring into the qualification of members by the enrolled bill rule, which establishes that the authentication of a bill by the House's presiding officer should be viewed as conclusive evidence that all constitutional procedures for bill approval were complied with. So any legislation Omar had voted on was and would remain as valid as it ever was. 

Eighth, and finally, what happens if the federal district court rules that Omar is denaturalized, and in reliance on that final judgment, she is expelled from the current House or not seated in a new House, but that judicial ruling is subsequently reversed by a higher federal court, e.g., the United States Supreme Court? Here we quote from our article on Section 3 of the Fourteenth Amendment:

A prominent example may illustrate this principle: the case of Representative Victor L. Berger. In November 1918, Berger, a socialist, was elected to represent a House district for Milwaukee, Wisconsin in the 66th Congress. In February 1919, Berger was convicted in federal district court proceedings for violating the Espionage Act of 1917. When the 66th Congress met on May 19, 1919, Berger was free on bail. Faced with this conviction, the House proceeded to exclude Berger by resolution on November 10, 1919. The standard narrative is that his exclusion was based upon his antiwar agitation during World War I—in other words, his exclusion was purportedly founded upon Section 3 of the Fourteenth Amendment. However, the legal standard or rationale on which the House refused to seat Berger is far from clear.

Berger's seat was declared vacant. A new election was held, in which Berger was a candidate, and notwithstanding his re-election to the seat, the 66th House refused to seat him a second time. In November 1920, Berger ran yet again in the general election for a seat in the 67th House. He was not excluded from the ballot. Berger did not prevail in that election. In January 1921, before the 66th House expired, the Supreme Court overturned his conviction. After the Supreme Court's ruling, Berger ran, and prevailed in, three subsequent elections. He was seated in the 68th, 69th, and 70th Houses.

[Professors] Baude and Paulsen write that "curiously, after the convictions were reversed the House allowed Berger to sit in the sixty-eighth through seventieth Congresses." They do not explain why this seating was "curious." The Supreme Court's decision vacating a conviction under the Espionage Act could have no legal effect on a Section 3 disqualification. Only Congress can relieve that disability by a 2/3 vote of each house. And no such vote took place.

In short, if Omar was undenaturalized—or maybe better to say she was never denaturalized in the first place—a future Congress could seat her. Alternatively, even if a federal court denaturalizes Omar, our view is that members of Congress could independently determine that Omar was and is a citizen for purposes of the House Qualifications Clause. At that point, the tension would not be between the House and the President, but between the House and the federal judiciary. 

The relationship between citizenship and qualifications is a tale as old as the Republic. Denaturalization would add a new twist to this old drama. 

The post What Happens to Representative Ilhan Omar's Congressional Seat if the United States Files Suit to Denaturalize Her? appeared first on Reason Magazine.

Back in February, I submitted a letter to the editor of the New York Times objecting to how I was often labelled as a "conservative" even as liberal law professors did not receive that label. The Times did not publish the letter, so I posted it on the blog. I thought that was the end of the matter, but I was wrong. Patrick Healy, is the assistant managing editor for Standards and Trust, reached out to me. He was starting a newsletter and podcast that responds to reader concerns. We spoke for about fifteen minutes about this issue.

That interview has now been posted here. It begins this way:

PATRICK: So Josh, you reached out after The Times twice described you as a, quote, conservative, end quote, law professor. And you said the conservative label was accurate, but that The Times applies labels like conservative and liberal inconsistently to law professors and analysts, and that a scholar's view should speak for itself. I'd welcome you unpacking that.

JOSH: Sure. This has been a longstanding grievance of mine, and not just against The Times, against all the major media outlets. I'll frequently talk to a reporter and they'll say something like, "How would you identify yourself?" And they're not asking for my pronouns. They're trying to get at my politics. And sometimes I'm of course like, you know, "I'm a law professor." And they say, "Well, how do you characterize yourself?" It's like, "Well, I'm a constitutional law professor," and I know what they're getting at. Eventually I just say, fine, if you want to call me conservative, you can.

And I suspect the reason why they do this is to give their readers sort of a grounding of where I'm coming from. And if this was sort of a neutral policy that's applied across the board, I wouldn't have much ground to object, but I find that it's not.

Back in February of this year, I was quoted twice in The New York Times back to back in the span of 24 hours, which is, you know, pretty cool. But I sort of noticed that both of the references were to Josh Blackman as a "conservative" law professor. And I just thought that was strange. So I went through the Westlaw archives and just sort of searched for "liberal" law professors and "conservative" law professors in the New York Times database, and it was far more likely that you're identifying a conservative than a liberal. And those numbers are stacked because liberals are quoted even more often. So the numbers even have a greater disparity.

And this sort of reinforces, I think, a perception that both the academy and frankly the media views a liberal position as a neutral position. And the conservative position is the other, the outlier. And that's why you have to have this sort of nomenclature, this sort of adjective to describe it. So I wrote a letter to the editor back in February. You did not publish it. OK. That's your prerogative, but I do appreciate the chance that you reached out to me and I'm glad to talk with you about it right now.

PATRICK: Yeah. Josh, I think there's real truth to your critique and it's something we need to do a better job on. It's kind of exactly what you said in terms of why we do it. We're trying to give readers more factual context about who's speaking or why their views rise to the level of a story. Sometimes it's notable that it's a conservative legal scholar criticizing President Trump's politics more than it might be surprising that a liberal is doing that.

Read the whole interview. I thought Healy was very fair. I hope journalists at the Times and other outlets give more consideration to this issue.

It's been a busy week for the mainstream media. I was also interviewed by NPR for All Things Considered about the Supreme Court publisher recusals.

The post <i>NYT</i> Interviews Me About "A Double Standard For 'Conservative' and 'Liberal' Labels? appeared first on Reason Magazine.

10/22/1915: Hadacheck v. Sebastian argued.

The post Today in Supreme Court History: October 22, 1915 appeared first on Reason Magazine.

This year, the Bureau of Prison determined that "sex-trait-modification surgeries, hormone interventions in general, and social accommodations could no longer be justified as treatment for gender dysphoria." The lower court enjoined this policy, and the Solicitor General sought an emergency stay. Today the Supreme Court denied a stay in Trump v. Kingdom by a 7-2 vote. Justices Thomas and Alito noted they would have granted the application, though there was no written opinion.

I have some thoughts.

First, just yesterday Justice Kagan noted that the Trump appointees rule against President Trump as proof that they are not hacks. And she surely knew this case would come down as further proof of this point. Kagan's point seems to be that ruling against the President that appoints you makes you a fair justice. That premise is only true if in fact that law does not support the appointing President's policy. If a Justice simply rules against the President who appoints him for the sake of optics, then the Justice is no longer a judge.

Justice Alito made this point well in his new book, summarized in the Wall Street Journal.

Insecure originalists may worry that they are subconsciously engaging in "judicial activism" in the service of their own policy preferences. As a result, they may welcome occasions when their originalist analysis leads to results they dislike. They experience a brief catharsis, a release of their anxiety about succumbing to temptation.

Twenty-first-century originalists should shed this insecure mindset.

I wonder if Justice Alito thinks that Justice Scalia's constant praise of his vote in Texas v. Johnson was evidence of this "catharsis." Justice Kavanaugh used to praise the Nixon appointees who ruled against Nixon in the Watergate Tapes case. That premise reinforces the wrong image. I've come to believe that United States v. Nixon was a travesty, and the Justices who joined that were caught up in the Watergate swamp fever. The decision has not held up well over the past five decades.

Let's stop praising how often the Trump appointees rule against Trump. The more useful metric, in my view, is when the Court's two most conservative members (Thomas and Alito) are alone in dissent. I updated my wall of receipts in July 2026 as a recent accounting.

Second, how do we reconcile Mahmoud, B.P.J., and Skrmetti on the one hand and Bostock and Kingdom on the other? For sure, all of these cases presented different legal issues. Mahmoud was a Free Exercise challenge, Skrmetti presented an Equal Protection issue, B.P.J. was about Title IX, Bostock was an interpretation of Title VII, and Kingdom was an APA challenge on the interim orders docket. Yet all of these cases were really about transgender rights. Back in April I wrote that the transgender tide was turning. Was I wrong? Why did all of the recent cases turn out one way but Kingdom turns out the other?

Well, the Court is certainly concerned about transitioning children. They upheld bans on gender transition surgeries in Skrmetti. They required opt-outs from transgender-related indoctrination in Maryland public schools. (Had the story books been only about gay marriage, I don't know that the case would have come out the same way.) The Justices allowed the exclusion of biologically male athletes from female sports. I could add to that list Mirabelli v. Bonta, which prohibited schools from secretly transitioning children.

It's possible that Justice Gorsuch simply saw the light after Bostock, but maybe there is another explanation: he cares more about children than he cares about transgender rights. So his equities tilted to the right. But in a case where adults seek this treatment, Gorsuch cut the other way. Moreover, when those consenting adults are prisoners, Justice Gorsuch's equities are far clearer. For a libertarian, how could the carceral state deny this treatment to incarcerated persons who can't go elsewhere to get it?

Third, I'm struggling with Justice Kavanaugh's position here. He had a free vote, as the split was 7-2. He could have at least written a separate opinion explaining why relief was not appropriate here, but when the case returns on the merits, the outcome may be different. He does that sort of thing all the time in far less controversial cases. But here, we only have the sound of silence. I think he is signaling the government loses on the merits here. Maybe he suspects Trump will be out of office by the time this case returns to the Court, and the policy will be abandoned.

Fourth, I'm sure Justice Barrett figured out some procedural reason why the federal government must remove healthy reproductive organs from prisoners. That is, unless she agrees with the Respondent's arguments that BOP's position is "pretextual and [was] reverse-engineered to implement" President Trump's order. So we're back to pretext, and trying to divine the President's real motivations. Trump v. Cook established that Trump does not get the presumption of regularity. Barrett dissented in that case, through she may not disagree with the broader premise.

Fifth, the application was filed on September 28, briefing concluded on October 9, and the order was issued on October 21. What took so long if this was a straight-up denial without any writings? I suspect that Justices Alito and Thomas were hopeful they could scrounge more votes but could not. Maybe they even circulated a dissent but withdrew it. Something behind the scenes happened here. If only we knew what happened? Thankfully reporters at CNN and the New York Times are no longer able to otbain leaks. The best they can do is ask KBJ's friends for comments and interview the Chief's neighbors in Maine.

The post <em>Skrmetti</em>, <em>Mahmoud</em>, and <i>B.P.J</i> v. <em>Bostock</em> and <em>Kingdom</em> appeared first on Reason Magazine.

10/21/1919: Abrams v. United States argued.

The post Today in Supreme Court History: October 21, 1919 appeared first on Reason Magazine.

SCOTUSBlog has published the final installment in our series on recent changes in constitutional law. This essay focuses on the separation of powers. It begins:

The late 1990s and early 2000s ushered in the Rehnquist federalism revolution, which appeared to place limits on Congress' powers and expand those of the states. Then came Sept. 11, 2001, and the global war on terror, which seemed poised to expand the president's powers. Yet, by 2008, Congress' powers seemed without meaningful limits and the president's efforts to expand his own powers had failed. And the separation of powers remained, well, separate. Nevertheless, the next two decades would vastly enlarge the president's powers as Congress' authority over the executive branch would be greatly diminished.

Here is a chart that shows the shift in cases:

Here is our conclusion:

Up to the fourth edition of our casebook in 2022, constitutional law followed a somewhat predictable arc. To be sure, there were shifts to the left and to the right, but the doctrine could be explained by a coherent narrative: the New Deal settlement on federal power was untouchable; the court would offer only modest protections for federalism; the administrative state was beyond reproach; attempts to single out unpopular groups would be halted; "benign" racial classifications were permitted; and church and state were strictly separated. Now, each aspect of this narrative has been reconceived. The five years since that edition appeared have brought the most changes to constitutional law since the Warren court.

We began this series by observing that lawyers tend to internalize the constitutional law that existed when they attended law school. The same is true of law professors. Virtually all law professors today came of age in a time of stasis. They could safely assume that the trajectory of the Warren court would continue indefinitely. But the jurisprudence of the Burger and Rehnquist courts was primed for a reversal, just as the Warren court reversed so many precedents from before. Ultimately, the Roberts court continues to chip away at precedents from the 1970s and 1980s, even if the precedents from the 1960s and before remain.

Many of these professors have struggled to cope with sudden changes in the doctrine. Some have voiced their despair of teaching constitutional law at all. Unsurprisingly, their students also struggle to cope with these developments. This trend is regrettable. Our role as casebook editors, and constitutional law professors, is to guide students through the entire corpus of constitutional law, from the framing to the present day, without any nostalgia for, or bias against, times gone by.

This is my last planned post with SCOTUSBlog. I'm sure there will be more to come.

The post New in SCOTUSBlog: "The separation and expansion of powers between Congress and the president" appeared first on Reason Magazine.

10/20/1973: The Saturday Night Massacre occurs.

The post Today in Supreme Court History: October 20, 1973 appeared first on Reason Magazine.

Sophisticated clients develop comprehensive strategies to get a cert petition granted. BMG Rights Management (US) LLC v. Cyril E. Vetter was one of those cases. The question presented concerned limitations on the reversion of copyrights. Paul Clement was retained to represent many of the leading media companies. The Parties to the Proceeding were:

Petitioners are BMG Rights Management (US) LLC; Capitol CMG, Inc. (Parent Company Stock Ticker: UMG); Essential Music Publishing LLC (Parent Company Stock Ticker: SONY); and Warner-Tamerlane Publishing Corp (Parent Company NASDAQ Stock Ticker: WMG).

The Plaintiffs secured top-side amicus brief from heavy-hitters including Paramount (represented by Lisa Blatt), the Motion Picture Association of America, the Recording Industry Association of America, and more. Everything was lined up for a cert grant. Alas, there would be no quorum.

Today's order includes this entry:

Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.

The lower court judgment survives, and it is hard to imagine another case with the same parties would trigger a different outcome.

What happened here? I have to imagine that these four Justices, who all have lucrative book deals, recused because of either the parties identified, or the issue presented. Curiously, Justice Alito, who is a new publisher, did not step aside.

Going forward, these and other publishing companies need to be aware that they likely do not have a quorum for a cert grant. However, they stand a good chance of having a favorable lower-court judgment affirmed by a quorum-less court.

I've often wondered whether it makes actual good business sense to give lucrative book deals to the Justices. Do they really ever earn back the advance or is it just an interest-free loan? Well, now that media companies may no longer be able to bring cases to the Supreme Court, that value proposition has become far more difficult.

We've seen how significant Justice Alito's recusal was in Suncor. I think these media recusals may prove even more important to the business community. And while Justice Alito could divest those stocks, authors with book deals cannot cure the conflict.

Also in today's order is a cert grant in the racial preferences case from Montgomery County, Maryland. But the Court re-wrote the QP. Here is the Court's version:

The petition for a writ of certiorari is granted limited to the following question: Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.

Here is the question framed in the petition:

Whether a plaintiff alleging that a school district implemented facially-neutral admissions criteria for a racially discriminatory purpose must show that the criteria produced a disparate impact on the targeted racial group before a court may consider evidence of discriminatory intent.

The Court dropped the reference to discriminatory intent and added a focus on "aggregate disparate impact." This case could now reflect an opportunity for the Trump Administration to advance its new policy concerning disparate impact.

The post Four Justices Recuse From Petition By Publishing Companies And Court Grants New Case on Disparate Impact appeared first on Reason Magazine.

10/19/1789: Chief Justice John Jay takes oath.

The post Today in Supreme Court History: October 19, 1789 appeared first on Reason Magazine.

10/18/1960: Gomillion v. Lightfoot argued.

The post Today in Supreme Court History: October 18, 1960 appeared first on Reason Magazine.

10/17/1862: Justice David Davis takes oath.

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10/16/1898: Justice William O. Douglas's birthday.

The post Today in Supreme Court History: October 16, 1898 appeared first on Reason Magazine.

10/15/1883: The Civil Rights Cases are decided.

The post Today in Supreme Court History: October 15, 1883 appeared first on Reason Magazine.

SCOTUSBlog has published the latest essay from me and Randy Barnett on the recent changes in constitutional law. This entry focuses on the Religion Clauses and the Second Amendment. It begins:

Twenty years ago, the Supreme Court strictly enforced the separation of church and state, deferentially reviewed restrictions on free exercise rights, and played no role in enforcing the Second Amendment. This was the state of the law when one of us began law school in the fall of 2006.

What a difference two decades has made for the First and Second Amendments.

The post New on SCOTUSBlog: "Witnessing a reorientation of the First and Second Amendments on the Roberts court" appeared first on Reason Magazine.

10/14/1911: Justice John Marshall Harlan I dies.

The post Today in Supreme Court History: October 14, 1911 appeared first on Reason Magazine.

My new essay in Civitas introduces novel research about the understanding of the Establishment Clause in 1868. I dug through recently digitized archives of the Freedmen Bureau. In short, a federal government agency, headed by military chaplains, worked with religious groups to establish schools in the South, and the curriculum in those classes included bible readings and prayers.

Here is an excerpt:

The regulations for Freedmen schools in Texas provided that classes would begin at 9 A.M. and "[t]he morning Exercises will commence with either the singing of an appropriate hymn, or prayer, or the reading of the Scriptures." For Louisiana Freedmen schools, each day, "[t]he opening exercise in every school will be the reading a passage of Scripture or a prayer in place thereof." After prayers, the students would sing "an appropriate hymn or melody." The Freedmen school in Bainbridge, Georgia opened the day by reading one chapter from the Bible. The Freedmen school in Mobile, Alabama opened each day with a "divine service, which exercises consist of reading short selections from the Bible, after which the school repeat[s] the 23rd Psalm." (It begins, "The Lord is my shepherd. . . .") "Then all kneel, when a short prayer is offered by some designated teacher, at the close of which all join in the repetition of the Lord's prayer, when the exercises are concluded by singing . . . " 

In February 1868, a teacher at the Clinton's Freedmen's School in Tennessee reported to the Freedmen's Bureau that "the prayers of the pupils is [sic] encouraging." In October 1868, Dellie Gordon, a teacher at a Sabbath School in Prince George's County, Maryland, wrote to Rev. John Kimball, the Superintendent of District of Columbia Schools. Gordon relayed that she "opened school on Sunday afternoon and recited the Ten Commandments which, the children had never heard before." Gordon added that "with explaining the 2nd chap St. Matthew the afternoon passed very pleasantly." (This chapter discusses Jesus's birth and early childhood.)  . . . 

The purpose of teaching scripture was not merely to promote literacy. The Bureau recognized a close connection between teaching religion and promoting morality among the families of recently freed slaves. In October 1866, the Superintendent of Schools for Alabama wrote that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible" through the donation of 2,000 Bibles from the American Bible Society. The report observed that "portions of the Holy Scriptures find their way to households which, probably, would be reached in no other way." Another report from Alabama explained that "[e]ffort has been made to supply the moral and religious wants of the freedmen as far as possible." General O.O. Howard, the Commissioner of the Freedmen's Bureau, and the namesake of Howard University, was told that teachers "explain[ed] the lessons of morals and christianity, so strikingly presented in every page of the Bible."

The schools also engaged in outright proselytization. Teachers at American Missionary Association schools for Freedmen in Alabama were required to fill out a monthly report with questions about conversion: how many Bibles were distributed? How many families were "engaged in religious services, either by reading the Scriptures, singing, or prayer"; how many "hopeful conversions, if any, during the month"? One report from the Girard Freedmen School reported nine hopeful converts. . . .

The Freedmen schools, which were managed and funded by the federal government, proactively incorporated the Bible into the curriculum. Students began their day with prayer, read from the bible, and teachers were encouraged to proselytize. These actions were viewed as a critical way to develop morality among the freedmen. This history from the Second Founding should inform how the Establishment Clause would have been understood when the Fourteenth Amendment was adopted.

I have published here only a small bit of my research. The full load will come in a forthcoming symposium article. I encourage others to follow this path, and see what else comes up.

The post New Essay: "The Establishment Clause At The Second Founding" appeared first on Reason Magazine.

10/13/1890: Justice Samuel Miller dies.

The post Today in Supreme Court History: October 13, 1890 appeared first on Reason Magazine.