In Tipping Points and Nudges: Review of Cass Sunstein's "How Change Happens"

Election night 2008 in the United States proved to be a key inflection point for social change in America. For some, President Obama’s election marked that we had reached a milestone akin to the “end of history” predicted more than a decade before: that the United States had entered a post-racial era.  Something else happened that night as well.  In the liberal state of California, where Obama carried the state by a considerable margin, the state’s voters approved Proposition 8 which prohibited same-sex marriage in the state.  Both outcomes generated strong reactions from opponents to these events.  Barack Obama’s political rivals vowed to limit the President’s power, and the somewhat veiled racism of the campaign against the nation’s first Black President unleashed a more public form of race-baiting, that has only gained strength in recent years.  On the marriage equality front, advocates organized on a state-by-state basis until they built a groundswell of public support for same-sex marriage culminating in victory before the Supreme Court in which laws against same-sex marriage were found unconstitutional.

What do these outcomes say about how social change happens in the United States?  Legal scholar Cass Sunstein’s new book, How Change Happens (MIT Press, 2019), explores the mechanisms through which social change can occur. While other recent additions to social change literature, like David Cole’s Engines of Liberty and Leslie Crutchfield’s work that bears the same title as Sunstein’s, tend to take a more inductive approach, looking retrospectively at successful social movements and trying to understand the components of those successes, Sunstein offers a more theoretical approach.  He attempts to explain some of the psychological forces at work when individuals and groups try to bring about social change.

For Sunstein “seemingly small perturbations can often produce big shifts.”  Such shifts occur through the process of what Sunstein calls “unleashing”: when “norms are revised, people will reveal preexisting preferences and values, which norms had successfully suppressed. What was once unsayable is said, and what was once unthinkable is done.”  This can create a tipping point when “large-scale change is possible.”  When people want such change, “[w]hat is needed is some kind of movement, initiated by people who say that they disapprove of the norm.” They succeed “when some kind of tipping point is reached, by which time it is socially costless, and maybe beneficial, and maybe even mandatory, to say: Me Too.” As Sunstein argues, “[u]nder the right conditions, and with the right distribution of [individuals’ receptivity to change], a small spark can ignite a conflagration, eventually dismantling the norm."

Can Sunstein’s theories help explain the recent instances of social change in the United States identified earlier, like the hard-fought victory on the marriage equality front or the emergence of a newly emboldened white nationalism and even white supremacy in the United States?  Following the Proposition 8 loss in California in 2008, marriage equality advocates did not take the defeat lying down.  They began organizing in other states and started to chip away at opposition to same-sex marriage. On election night in 2012, the norm had shifted so much that in four states, voters voting in ballot referenda supported marriage equality: in three states they would vote in favor of pro-marriage equality initiatives, and, in a fourth, they would vote to reject an initiative opposing marriage equality. In 2013, the Supreme Court would hold that portions of a federal law limiting recognition of same-sex marriages were unconstitutional, and then, in 2015, it would reach its landmark decision holding all state laws against same-sex marriage unconstitutional.

Did nudges play into this shift? Did the campaigns in state after state, and carefully orchestrated litigation in various states and different fora help to shift public, and, ultimately, judicial opinion?  Were these just nudges or something else?  It appears likely that the monumental shift in public opinion and the ultimate outcomes in landmark cases at the Supreme Court were a product of millions of conversations—interpersonal nudges—combined with national, federated, incremental, and thoughtfully calibrated legal, legislative, and electoral tactics. While Sunstein’s vision of social change would appear to offer some explanatory value, it may not tell the whole story.

But trends toward greater inclusiveness and diversity are not the only social change that the United States has seen over the last decade. The candidacy and then the presidency of Donald Trump would prove that other forces also seem at work in American culture, and around the world.

For some, the election of Donald Trump, Brexit, and the rise of a conservative populism are evidence of wide-ranging social change. It is difficult to lay all of that at the feet of Donald Trump, and, in many ways, he may be a symptom of larger forces and not a cause of any of them. At the same time, his cavalier attitude (at best) toward white supremacists has created an environment in which they feel unleashed as Sunstein might say: unconstrained and willing to enter the public discourse and perhaps leading others to do the same.  This phenomena would appear consistent with Sunstein’s social change thesis.

We can thus see that Sunstein’s theory of change appears to accurately describe at least some recent social change.  How Change Happens certainly tells a significant part of the story of social change, and Sunstein admits that nudges are not appropriate in every setting. It is nevertheless hard to discern when he believes they are appropriate and when they are not.  Sometimes social change advocates have to do more than a nudge, like organize other like-minded people, protest, sue, boycott, and engage in social media campaigns.  Similarly, Sunstein believes tipping points are central to change, although he barely mentions them in this work.  I would have liked to have known more about these aspects of change: how can we know when social change has reached such a tipping point; how can we force them; when do we know we are close?

Nevertheless, Sunstein’s How Change Happens is a welcome and important contribution to the growing scholarship on social movements, particularly at a time when many are thinking about social change and how to bring it about. While much of that research attempts to excavate past successful social movements, Sunstein offers more of a theoretical analysis of the potential triggers of social change.  Although the book offers many concrete examples of nudges at work, armed with Sunstein’s theoretical description of the levers of social change, those looking to bring about social change can draw inspiration and guidance from How Change Happens as they embark on efforts to drive norm change, norm cascades, and tipping points.  While Sunstein’s thesis does not explain all social change—particularly that which requires major societal and cultural shifts—his important ideas can help guide change large and small.

A full-length review of How Change Happens will be published by the Notre Dame Journal of Law, Ethics, and Public Policy. A pre-publication draft of that article is available here.

The Fatal Flaw in the Argument for McGahn's Testimonial Immunity

A May 20 letter of White House Counsel Pat A. Cipollone to House Judiciary Committee Chairman Jerrold Nadler informed the Chairman that the President had ordered his former counsel, Donald F. McGahn II, not to honor the committee’s subpoena for Mr. McGahn’s testimony. Accompanying the letter was a Justice Department Office of Legal Counsel (OLC) opinion of the same date, claiming that Congress may not constitutionally compel the President's senior advisers, either current or former, to testify about their official duties. The fatal flaw in the OLC memo, however, is that the unspoken premise of its argument points convincingly to the opposite conclusion.

The U.S. Constitution says nothing about executive branch secrecy. Unlike Article I, which specifically permits secret congressional deliberations, Article II, dealing with the executive branch, is silent on any question of testimonial immunity or executive privilege of any kind. Nonetheless, the Supreme Court has held that the concept of executive privilege has constitutional roots: “[T]he privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers . . . .” Each branch of government, the Supreme Court recognized, must be deemed to have implicit authority sufficient to enable it to discharge its constitutionally assigned functions.

This notion of functionally implicit authority is the foundational premise of OLC’s argument for the absolute testimonial immunity it claims prevents Mr. McGahn from testifying. The OLC opinion rests on the proposition that “[r]ecognizing a congressional authority to compel the President's immediate advisers to appear and testify at the times and places of their choosing would interfere directly with the President's ability to faithfully discharge his responsibilities.” This rationale supposedly extends even to former advisers because “the confidentiality interests associated with the advisers’ former role remain just as strong.”

What this analysis misses, however, is that the premise of functionally implicit authority applies no less to Congress than it does to the President. That is why, in the one judicial decision regarding the testimonial immunity of former presidential advisers, the court found for Congress. Committee on the Judiciary, US. House of Representatives v. Miers dealt with the refusal by a former senior adviser to President George W. Bush to testify before the House Judiciary Committee about the forced resignations of a number of U.S. attorneys. U.S. District Court Judge John D. Bates rejected the claim of absolute testimonial immunity and declared that former White House Counsel Harriet Miers was not immune from compulsory congressional process.

Judges Bates’s analysis recognized that “Congress's power of inquiry is as broad as its power to legislate and lies at the very heart of Congress's constitutional role.”. Then, reasoning from the same functionalist premise that now underlies the OLC McGahn opinion, Judge Bates concluded: “Presidential autonomy, such as it is, cannot mean that the Executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress's historical oversight function.” Judge Bates emphasized the importance of requiring presidential advisers to appear and to assert the applicability of executive privilege, if appropriate, only with regard to specific questions. A blanket refusal to testify would, in Judge Bates’s analysis, leave Congress with “no recourse to obtain information [from presidential advisers] that is plainly not subject to any colorable claim of executive privilege.”

The Judiciary Committee’s entitlement amounts to this: Mr. McGahn, like any subpoenaed witness, must appear. Should it appear to him that any particular question would require him to divulge information potentially subject to executive privilege, he should say so. The committee, in turn, should keep track of those questions and transmit them to the White House, giving them a brief period in which to decide whether to assert privilege regarding any particular answer. Should privilege be asserted, the committee could then decide whether to defer to White House claims or litigate them. Either way, the President’s blanket directive not to appear should be recognized as insupportable.

The OLC opinion notes the Miers case, but overlooks its functionalist argument. OLC dismisses its authority because the D.C. Circuit stayed the decision pending appeal. (The case was ultimately settled by the Obama Administration, which withdrew any presidential objection to Ms. Miers’s testimony.) Most tellingly, OLC summarily ignores the potential impact of absolute testimonial immunity on Congress’s constitutionally rooted investigative powers. One looks in vain for even a cite to the Supreme Court’s 1927 decision in McGrain v. Daugherty, or to any of the other many judicial decisions affirming the constitutional centrality of Congress’s investigative functions.

Judge Bates’s opinion stands well on its own, but, given a president who would habituate his followers to distrust judges antagonistic to his views, it may be worth noting a bit of Judge Bates’s background. A Vietnam veteran, he was appointed to the U.S. District Court by George W. Bush in 2001. His career in the D.C. U.S. Attorney’s Office included two years as a deputy to Independent Counsel Kenneth Starr’s Whitewater investigation. Chief Justice John Roberts appointed Judge Bates in 2009 to serve as presiding judge on the Foreign Intelligence Surveillance Court. He has dismissed a number of challenges to executive power including: the challenge by the father of Anwar al-Awlaki to the placement of his son on an Obama Administration “kill list,” an attempt by the Government Accountability Office to determine the membership of Vice President Dick Cheney’s national energy policy task force, a suit by Valerie Plame Wilson against Cheney and other White House officials over the leak of her role at the CIA, and a suit by members of Congress challenging Bush’s authority to withdraw unilaterally from the ABM Treaty. In other words, Judge Bates is no “squish” when it comes to executive power.

OLC is correct that presidents of both parties have asserted for decades that their senior advisers have a constitutionally implicit absolute immunity from testifying to Congress under compulsion. The legal problem for this position is that any such argument depends on the kind of functional analysis that more persuasively supports Congress’s constitutionally implicit authority to compel presidential aides to appear. The one court to reach the issue decided against the executive branch in 2008. It is still the more convincing view.

The Ohio Partisan Gerrymandering Decision: A Worthy Model for the Supreme Court

Daniel Tokaji is a member of the ACS Board of Advisors. 

The three-judge district court opinion holding Ohio’s congressional districts unconstitutional confirms what we in the Buckeye State have known for a long time: the state’s map is an extreme partisan gerrymander, one that has diminished our democracy. The 2011 congressional plan locked in a 12-4 Republican majority in Ohio’s congressional delegation, a remarkable feat given that the state as a whole remains competitive between Republicans and Democrats. (In 2018, Ohioans reelected Democrat Sherrod Brown to the U.S. Senate 53.4%-46.6%, while also electing Republican Mike DeWine as Governor 50.4%-46.7%.)

Ohio’s districts are a finely honed example of a tried-and-true approach to partisan gerrymandering.  The plan packs opposition voters (in this case Democrats) in just a few districts, leaving the remaining districts safely in the hands of the dominant party (in this case Republicans) without wasting too many of their votes.

What are the national implications of Ohio’s ruling? This extreme congressional gerrymander has already spurred political reform.  A successful referendum reforming the process was overwhelmingly approved by voters and will take effect after the 2020 census. But at the moment, the district court decision on Ohio – like the decision invalidating Michigan’s state legislative districts a few days before – is a sideshow. The main events are the partisan gerrymandering cases out of Maryland and North Carolina that are currently pending before the Supreme Court. Ohio and Michigan have thus sought stays, to which responses are due today. Whether or not the Court grants these stays, these lower court rulings must be regarded as provisional. Their fate hinges on what the Court does in the pending Maryland and North Carolina cases.

Still, the Ohio decision – viewed alongside those that have come before it – sheds new light on the constitutional problem of partisan gerrymandering. As Nick Stephanopoulos notes, the lower courts have now coalesced around a constitutional standard for vote dilution. The Ohio decision also represents the most careful treatment of the claim that extreme partisan gerrymanders violate the First Amendment right of association, an argument that I have pressed alongside other law professors in amicus briefs before the Supreme Court. The district court’s careful review of the facts exposes the sinister intent and pernicious effects underlying Ohio’s congressional plan, while exposing the fallacy of arguments made in defense of such extreme partisan gerrymanders.

Ohio’s Districts Dilute Democratic Votes

On the vote dilution claim, the Ohio court applied a test similar to that which multiple other district courts have embraced. That standard requires plaintiffs to show (1) a discriminatory intent in the drawing of each district, and (2) a discriminatory partisan effect. Even if they can do so, defendants may still prevail if they may show (3) a legitimate justification for the districts.

The court’s lengthy opinion meticulously demonstrates how all of Ohio’s districts were infected with partisan bias. The original districts were drawn in a room at the Doubletree Inn, which was described in email as the “bunker,” where Republican staffers drew the new districts, with heavy input from Speaker John Boehner’s team. Although sham public hearings were held, Republicans kept the public – and Democratic legislators – in the dark until almost the very last moment.

Having had a front-row seat to Ohio’s 2011 redistricting process, I’m impressed with the court’s careful analysis of the facts. Internal communications among Republicans leave no doubt that their goal was to make 12 of 16 districts safely Republican, even in a strong Democratic year, while concentrating Democratic voters in four heavily packed districts. Line-drawers privately used terms like “‘dog meat’ voting territory” and “the Franklin County Sinkhole” to refer to areas where Democratic voters were concentrated. Their strategy of packing those voters into four districts succeeded marvelously. Twelve districts have remained safely Republican since they were drawn in 2011. Republicans were able to hold three-quarters of the state’s congressional districts even in 2018, an otherwise strong year for Democrats.

Ohio’s congressional plan is one of the most slanted in the country, a fact confirmed by multiple empirical measures. Still, there is one fact that Republicans have repeatedly asserted in defense of the plan: although Democrats opposed the initial version of the plan adopted in September 2011 (HB 319), many Democratic state legislators voted in favor of a slightly revised version adopted in December 2011 (HB 369). As the court described, Democrats were able to secure only “small concessions” between the two plans.

So why did many Democratic state legislators vote for the plan which retained the 12-4 partisan split in favor of the Republicans? As the opinion explains, Democrats had threatened a referendum challenging the initial plan, but couldn’t collect enough signatures to make good on the threat. Republicans effectively called their bluff. Left in a very weak bargaining position, some Democrats felt like they had no choice but to agree to the token changes to save face. While the Democratic votes in favor of the final plan were an embarrassment, given the plan’s overwhelming bias in favor of Republicans, they don’t vitiate the partisan intent of Ohio’s congressional districts or the plan as a whole.

The Ohio district court thoroughly explicates the evidence of partisan intent and effects, statewide and with respect to all 16 of the state’s districts, making exactly the sort of showing that the Supreme Court appeared to demand for vote dilution claims in last year’s decision out of Wisconsin, Gill v. Whitford.  For example, the Ohio court explains how the Ninth Congressional District – commonly referred to as the “Snake on the Lake” – was drawn to pack Democrats in the Toledo area with those in the Cleveland area, running along a thin strip alongside Lake Erie in places.

The court also explains how the Eleventh District – which I called the LeBron James District (until he left the Cavaliers) because it goes from Akron to Cleveland – packed Democratic voters, many of them African American. The court properly rejects the Republican claim that “the Voting Rights Act” made them do it, an argument that can’t pass the straight-face test given the lack of white bloc voting and the Supreme Court’s decision in Cooper v. Harris.  The Court rejected this argument in Cooper, and is unlikely to accept it here.

Ohio’s Districts Violate the Right of Association

While the Ohio vote dilution analysis follows prior lower court decisions, the district court breaks new legal ground in its analysis of the First Amendment association claim. The Court applies a balancing test, drawn from a long line of Supreme Court decisions that have viewed voting as a form of expressive association in other contexts. The leading case is Anderson v. Celebrezze, another Ohio decision that struck down the state’s rules for access to the general election ballot. In that opinion, the Court recognized that associational and voting rights are “overlapping,” and articulated a standard under which the burden on these rights should be balanced against the state’s interests.

Later Supreme Court cases have applied the Anderson standard in a variety of contexts, and lower courts routinely deploy this standard in assessing laws alleged to make voting more difficult. As I’ve argued previously, this is an appropriately nuanced standard, one that will allow the most extreme gerrymanders to be struck down, while allowing states to justify plans that may have some partisan effects or even intent. The First Amendment association standard best captures the injury arising from partisan gerrymandering. Plans like Ohio’s make it more difficult for voters to join with like-minded others, as well as their preferred candidates and political party.

Other lower courts (including those in Maryland, North Carolina, and Wisconsin) have held that extreme partisan gerrymanders violate the First Amendment, but none have approached the association claim with the sophistication of the Ohio court. This decision articulates the right framework for determining whether partisan gerrymandering violates the right of association. And it applies this standard with care, finding that Ohio’s plan imposes severe burden on the Democratic Party and its supporters, both inside and outside the electoral process. Ohio’s plan not only makes it practically impossible for Democrats to get elected in 12 of 16 districts, but also has a “demobilizing” effect on people who would otherwise engage in the political process.

In her concurring opinion in Gill v. Whitford, joined by three other justices, Justice Kagan suggested that courts should consider whether partisan gerrymanders make it more difficult for the disfavored party to register voters, attract volunteers, recruit candidates, and otherwise engage in political activity. The evidence of such effects isn’t as strong in the Ohio case as in the North Carolina case now before the Supreme Court (described in our amicus brief, pp. 24-26), but there is some evidence that Ohio’s gerrymander has demobilized citizen participation.  This evidence, along with the debilitating effect on Democrats’ electoral prospects, supports the conclusion that the First Amendment right of association was violated.

As Ohio Goes . . .

That brings us back to the question of what the Ohio gerrymandering decision means for the rest of the nation. Ohio is an egregious example of how a skillful partisan gerrymander can lock one party into power while locking the other out for the rest of the decade. When viewed alongside opinions in other states, the Ohio decision exposes the fallacy of the argument that there are no judicially discernible and manageable standards for assessing partisan gerrymandering. Accordingly, the argument that partisan gerrymandering is a nonjusticiable political question lacks credibility.

That said, a victory in the North Carolina or Maryland case currently pending before the Court will not guarantee victory for the Ohio plaintiffs. There are potential grounds for distinguishing Ohio – most notably, the fact that some Democratic legislators voted for the plan and the relatively sparse evidence of extra-electoral effects of the type that Justice Kagan invited.

It thus remains to be seen whether Ohio will be a bellwether on partisan gerrymandering, as it has long been in presidential elections.  I won’t try to predict whether the Supreme Court will grant a stay or what the ultimate fate of this case will be.  But the Ohio district court decision is a great model, one that the Supreme Court should follow.

How the Trump Administration’s Contraception Rules Trample Women’s Constitutional Rights

Three years have passed since access to birth control was before the Supreme Court. But now the issue has returned in force to the circuit courts of appeals as 15 states challenge extreme contraception rollback rules created by the Trump administration. The new rules, if upheld, could eliminate contraception insurance coverage for millions of women nationwide.  Oral argument will be held tomorrow in the Third Circuit and on June 6 in the Ninth Circuit.

Already, medical groups, business groups, and more are weighing in with their own arguments in more than a dozen amicus briefs, making their case against these rules that trample women’s constitutional rights and the ideals of religious pluralism.

Courts have called these new regulations a “dramatic” departure from the status quo with “potentially dire public health consequences.” Pre-existing rules allow non-profits and closely-held companies to provide notice that they object to insuring contraception on religious grounds. Their insurance company is subject to an independent legal obligation to provide insurance coverage. The Supreme Court allowed this compromise a few years ago in Burwell v. Hobby Lobby and Zubik v. Burwell because the impact on women is “precisely zero.”

Not so now. The new regulations make four changes that completely alter that calculus. Any company that chooses to -- think Nasdaq or Fortune 500 -- can claim an exemption, as can any private university. And not every objection need be religious; it can be merely “moral,” including the absurd belief that the role of women should be restricted to home or family. Next, the company or university can exempt itself without providing notice, in a way that impedes women and insurance companies from making other arrangements for contraception coverage. The last change may be the most outrageous. No proof is required. Blanket federal exemptions are allowed without requiring any corporation or university to justify, or even assert, a substantial burden on corporate religious beliefs.

These extreme rules purport to interpret the Affordable Care Act’s landmark contraceptive coverage guarantee, but perversely hollow it out. The ACA requires no-cost coverage of “preventative” services – and its Women’s Health Amendment makes clear that Congress intended to rectify past discrimination against women by health insurers. Before the ACA, women spent 30% to 44% of their out-of-pocket health costs on contraception. Congress rejected the Blunt Amendment, which infamously was promoted by an all-male panel and would have replaced the Women’s Health Amendment with a broad exemption for “moral” objectors.

These regulations resurrect the rejected Blunt Amendment, and defy common sense.  Contraception is used - at some point in their lives - by 99% of women (including 98% of Catholic women), but effective, consistent birth control remains expensive.

High out-of-pocket costs reduce effective contraception usage. The Women’s Health Amendment was an effective solution for that. Most recent numbers show that 62 million women now rely on the no-cost preventative services guarantee for contraception to protect their health and achieve personal, professional, and educational goals.

The Trump contraception rules also violate the Constitution. The fundamental right to use contraception was recognized in Griswold v. Connecticut more than 50 years ago. As the Court put it, “If the right of privacy means anything, it is . . . the decision whether to bear or beget a child.” The government is generally forbidden from discriminating against those who exercise a constitutional right. The Trump contraception rules do exactly that, by singling out contraception coverage – and only contraception coverage – for disfavored treatment.

Moreover, as the Center for Reproductive Rights, the Lawyers Committee for Civil Rights Under Law, and other civil rights organizations argue, the rules unconstitutionally discriminate against women by denying them the ability to preserve and protect their health and well-being to the same extent as men. As the Supreme Court put it in Planned Parenthood v. Casey, “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Business organizations like the U.S. Women’s Chamber of Commerce and the National Association of Female Executives have showed that contraception access increases women’s educational attainment and improves their achievement in the workforce.

President Trump’s rollback will most affect the people who can least afford it. African American women, for example, make 65 cents on the dollar compared to white men, and face higher rates of unintended pregnancy and death during delivery than white women.

The contraception rollback also violates the First Amendment and its promise of religious pluralism. As various religious denominations and civil rights organizations explain, the First Amendment provides that the government cannot “promote any particular denomination or provide believers with preferential benefits, and . . . force innocent third parties to bear the costs and burdens of others’ religious exercise.” Church-state scholars filed a separate brief elaborating on the “third-party-harm-rule,” which the Supreme Court has applied before in the case of employee benefits, holding that “[g]ranting an exemption . . . to an employer operates to impose the employer’s religious faith on the employees.”

The array of third-party briefs supporting the multiple lower court rulings blocking the contraception rollback underscore all that is at stake here in terms of fundamental rights, equality, and the American ideals of religious pluralism. Many agree with the district judge, who wrote: “It is difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that intrudes more into the lives of women.”

Brown v. Board of Education Was Rightly Decided 65 Years Ago. Why Do Trump's Nominees Refuse to Admit It?

This Friday marks the 65th anniversary of Brown v. Board of Education, which would normally be an occasion to commemorate the historic ruling and assess our nation’s progress toward equality and integration. But this year, there are startling new reasons to worry that Brown is imperiled by judicial appointees of the Trump-Pence administration – and that should raise alarms for everyone who cares about civil rights.

The Supreme Court’s unanimous 1954 decision in Brown was monumental in several respects. It struck down the doctrine of separate but equal and began rolling back the sprawling policy of racial segregation in schools and public accommodations. It infused real meaning into the Constitution’s core value of “equal protection of the laws.” And it undergirded constitutional milestones of the 20th century, including the 1967 decision of Loving v. Virginia, which overturned bans on interracial marriage, the 2003 decision in Lawrence v. Texas, which struck down the criminalization of LGBTQ persons, and the 2015 decision in Obergefell v. Hodges, which recognized marriage equality and drew upon Loving and Lawrence.

For the last half century, Brown has been universally praised by nominees to the federal bench, irrespective of the president who nominated them. In his 2005 confirmation hearing, then-judge John Roberts highlighted the “genius of the decision” and said he thought it was “certainly” correct in examining the realities of public education at the time. Likewise, in Samuel Alito’s 2005 testimony, he praised Brown as “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done,” which he “[a]bsolutely” believed protected the rights of children. This consensus extends long before, including Anthony Kennedy who, in 1987, unambiguously extolled Brown as “right when it was decided, and . . . right if it had been decided 80 years before.” Since joining the bench, scores of justices and judges have continued to celebrate Brown in public speeches and official commemorations.

But in recent months, multiple judicial nominees from the Trump-Pence administration have departed from this mainstream consensus and evaded straightforward questions about whether Brown was correctly decided. For example, a nominee for a lifetime federal judgeship in Louisiana, Wendy Vitter, refused to weigh in on Brown at her Senate hearing and only said tepidly that it was “binding.” Neomi Rao, who was confirmed to replace Brett Kavanaugh’s seat on the D.C. Circuit, elusively remarked at the time that it was “not appropriate” for her to comment on the “correctness of particular precedents.” In an apparent coordinated position, multiple nominees for the bench and for senior positions at the Department of Justice have since conspicuously avoided agreeing with Brown.

This is especially troubling for LGBTQ Americans, since it suggests that judges put forward by the Trump-Pence administration may not accept the Constitution’s guarantee of equal protection.  These nominees’ steadfast refusal to validate Brown also raises serious questions about whether they would try to overturn or narrow yet other longstanding civil rights precedents that are widely considered established and uncontroversial, such as the right to privacy. The avoidance of Brown seems part and parcel of the administration’s broader effort to roll back LGBTQ rights and civil rights and unleash a sweeping new license to discriminate against same-sex couples and families. The prospect of resuscitating a legal doctrine of separate facilities has particularly disturbing ramifications for the transgender community, since it could be used to uphold exclusionary policies in the workplace and in bathrooms. Moreover, the recent resistance to LGBTQ equality at the state level and on ostensibly theological grounds has some noticeable parallels to the widespread resistance to implementing Brown in the late 1950s and 1960s.

So this season’s anniversary of Brown is markedly different than years past, since basic precedent and principles are at risk in a way that they have not been in 65 years. The best way to memorialize the legacy of Brown is to mobilize around judicial nominees who accept its foundational importance, not just as a matter of constitutional law, but as an expression of basic human equality. Standing up for Brown is an important way to maintain the promise of equal justice for all Americans – and it could make all the difference for the next 65 years of constitutional rights.