Foreword- The Preservation of Innocence: The 2019 Supreme Court Term

Cheryl Harris Rosalinde and Arthur Gilbert Professor in Civil Rights and Civil Liberties, UCLA

Every term of the Supreme Court includes decisions of great import. By design, the cases that the Court selects for consideration are deemed to be legally and socially significant.[i] This term, the Court decided on such high-stakes issues—abortion, immigration, health care, and executive power—all of which have preoccupied it before. As in the past, the Court’s rulings were implicated and issued in the context of pivotal social, political, and economic events. In this regard, one could say that the 2019 Term was not all that unusual. But that characterization would ignore what has been a remarkable season for the Court, both with regard to the societal context in which the term unfolded and, with few exceptions, the Court’s apparent disregard of the salience of that context. Instead, the general tack was to adhere tightly to text, to original meaning, even as the stakes and principles implicated could not have been more consequential. Legal formalism is certainly not unique to this Court, nor to this term, but in key decisions, the distance between the Court’s projection of the world and actual conditions is truly striking.

It is worth reviewing just some of the cataclysmic events that unfolded during the 2019 Term: There was the impeachment of the president; a tumultuous and contentious presidential campaign; a once-in-a-century deadly pandemic caused by a novel and highly contagious virus; an ensuing economic crash and depression; and the recurring nightmare of Black people shot, beaten or choked to death by the police or their self-appointed fill-ins. The intersecting pandemics of COVID-19 and state-sanctioned, anti-Black violence underscored and exposed the entrenched and lethal character of racialized inequality, triggering the most sustained and far-reaching social mobilization in decades. Long ignored demands for a racial reckoning and fundamental transformation became ubiquitous and inescapable. There were multiple crises at the southern border, including the separation—in some instances, ongoing—of minor children from their parents,[ii] and the exclusion and detention of thousands of desperate people.

The virus, however, defied all boundaries. In response, President Trump and his administration distorted, derided, and politicized public health measures as hospitals, health care workers, and mortuaries were overwhelmed. The election infrastructure was subject to a disinformation campaign, fueled by the president and abetted by a supporting cast of politicians and officials fearful of incurring his anger. A toxic social media ecosystem amplified and legitimated ever more unhinged claims and conspiracy theories that in turn spawned vigilante plots such as that concocted by an anti-lockdown group in Michigan to kidnap Michigan’s Governor Whitmer. Trump administration officials authorized the deployment of tear gas on peaceful demonstrators near the White House so that President Trump could pose for a photo before a historic church. The Court itself became the center of controversy with the death of Justice Ruth Bader Ginsburg. Days after Justice Ginsburg’s death and a little more than a month from the election, the president took the unprecedented step of naming her replacement. The White House Rose Garden celebration of the announcement became a COVID-19 superspreader event. To paraphrase the peerless James Baldwin, the 2019‒2020 Term came during the fire this time.[iii]

Yet, notwithstanding the raging fires in the real world, in the main, the Court’s decisions seemed to issue from an imagined universe where there is not even a wisp of smoke. What explains the profound disjuncture between the Court’s stance and the extraordinary facts on the ground?

In one of Baldwin’s most acclaimed essays, Letter to my Nephew on the One Hundredth Anniversary of the Emancipation, he endeavors to expose and thereby pry open, if only marginally, the cage of racialized oppression into which this beloved child was born.[iv] Baldwin implores his namesake not to accept the premise upon which his life was structured—that to be black is to be less than human. Baldwin points out belief in white superiority is buttressed by systems of racial dispossession: The country “set you down in a ghetto in which, in fact, it intended that you should perish” and “spelled out with brutal clarity and in as many ways as possible that you were a worthless human being.”[v] The terrible consequences Baldwin describes are visited on his nephew, his brother, his family, and on the many millions who comprise the “inferior” castes; but while the investment in whiteness produces value,[vi] it simultaneously induces malignancies, blind spots, and impasses. As Baldwin explains, many whites are “trapp[ed]in a history they do not understand.”[vii] Some who are aware cannot act, because to reject racial hierarchy places one in danger of being unmoored from the foundations of white identity, “attack[ing] one’s sense of one’s own reality.”[viii] The reaction is to retreat into denial and pursue an impossible quest for innocence:

[M]y country and my countrymen . . . have destroyed and are destroying hundreds of thousands of lives and do not know it and do not want to know it. . . . [B]ut it is not permissible that the authors of devastation should also be innocent. It is the innocence which constitutes the crime.”[ix]

The crime of innocence is a thread that runs through many of this term’s decisions. The critical analysis offered in the essays on the cases provides compelling evidence that the investment in innocence is deep—deep enough to avoid or distort precedent, to disaggregate patterns into discrete, unconnected episodes, to overlook discrimination, and to cloak racial power and economic dominance with the presumption of fairness and neutrality. Ultimately, this investment does not yield absolution as the belief in innocence is, at its root a folly, a denial, and a trap.

This is not to overlook that this term included hard-fought cases in which some of the most egregious abuses of power were rejected. But as Cecillia Wang points out in her compelling essay on DHS v. Regents of the University of California[1]—the case involving Trump’s rescission of DACA—the victories are narrow exceptions that do not challenge the conceptual and institutional structures that ratify subjugation and produce vulnerability. Thus, in DHS v. Regents, the Court zeroed in on the administration’s failure to consider the reliance interest of DACA recipients, or to provide clear reasons for the decision to revoke the program. Wang notes that while the procedural violations were manifest, the ruling gave the president another bite at the apple.[2] Most crucially, Wang contends, the case was argued and the decision was issued within a framework that legitimated line-drawing between the (marginally) deserving dreamers and the undeserving remainder.[3] On this account, immigrants and asylum seekers are “aliens,” a category that presumptively is prone to deceit, fraud and violence.[4] “Innocence” is an exception, defined in the most restrictive terms, available only to those who enter “through no fault of their own.” In contrast, those who fled their homes to save the lives of their children and escape death, starvation, and government-sanctioned criminal violence are not innocent.[5] As Wang notes, the “binary trope” of the innocent, deserving immigrant in contrast to the culpable, undeserving interloper is further reinscribed in other immigration decisions from the term, where unlike DHS v. Regents, the scope of rights accorded persons at the border, or who have crossed it are further restricted, if not completely abrogated.[6]

It is worth noting that in contrast to the narrow and exacting standard of innocence applied to sort immigrants, the plurality’s opinion extended a broad mantle of innocence to President Trump that inoculated the rescission of DACA from an equal protection challenge based on racialized intent. Despite President Trump’s repeated racist denigration of Mexican immigrants both before and after his election,[7]incredibly, the plurality treated the president’s explicit statements of racial animus as irrelevant, because it found the recission decision was taken by the agency’s chief administrator, not President Trump. [8] While President Trump’s anti-Mexican racist vitriol was factually sufficient to meet the initial threshold of establishing discriminatory intent, the plurality ruled that the evidence was inadequate to establish an equal protection claim. In effect, the Court rendered President Trump legally innocent by allocating decisional responsibility to agency officials. At the same time, since none of President Trump’s statements could be attributed to or were explicitly endorsed by the relevant actor(s)—the agency administrator(s)—they were innocent of bias as well.

Jennifer Chacón’s powerful essay on DHS v. Thuraissigiam[9] further illuminates the Court’s commitment to circumvention in the face of a major assault on the rights of refugees and asylum seekers. As she notes, while much of the attention this term focused on the fate of DACA, Thuraissigiam potentially has greater significance as it concerned the operation, possible expansion, and further insulation of summary removal proceedings from review. By a five to four majority the Court held that notwithstanding Thuraissigiam’s assertion of a credible fear of persecution as a Tamil refugee from Sri Lanka, federal law precluded further review of his expedited removal, even pursuant to a writ of habeas corpus.[10] In fact, as Chacón illustrates, while the Court concluded that the petitioner’s claim went beyond the historical parameters of habeas relief, it was the Court that upended historical practice and precedent. It further ignored principles of constitutional avoidance: The majority reached beyond the jurisdictional issue—whether habeas corpus relief was available—to declare that “alien[s] . . . [have] no entitlement to procedural rights other than those afforded by statute.” [11] Expedited removal, greatly expanded under the Trump administration, potentially could be applied to any immigrant determined not to have been “admitted” pursuant to Congress’s definition and the executive’s interpretation of “admission.” Put another way, for asylum seekers like Thuragaissiam, the Court found there is no constitutional floor. As Chacón points out, as a consequence, any abuse was left unchecked.

In reaching its decision, the Court relied on not seeing abuse: It averted its attention. Justice Samuel Alito’s account embraced the premise that asylum seekers were abusing the system, [12] while numerous media reports and investigations and a raft of litigation exposed policies that were riddled with rights violations as well as serial violations of federal law setting forth protections for asylum seekers.[13] These practices were in concert with President Trump’s unrelenting vilification of immigrants, particularly those from so-called “shit hole” countries.[14] The Court’s detachment from this reality allowed it to conclude that the exclusion of non-citizens from the protections of constitutional due process was deserved: These asylum seekers could not be considered “innocent.” At the same time, the majority effectively declared the administration innocent of a host of civil and human rights abuses. By abdicating judicial responsibility and leaving the matter in the hands of Congress, the Court too maintained its innocence.

The third case implicating the border and immigration—Hernandez v. Mesa (Hernandez II)[15]—did not involve a person crossing into the United States, but one who was killed in his own country, Mexico, at the southern border. Fifteen year-old Sergio Hernandez Guereca was shot on the Mexican side of the border at El Paso, Texas by a U.S. Border Patrol agent who asserted that Sergio was among a group throwing rocks as they tried to illegally cross into the U.S. Sergio’s family sued alleging due process violations and claims under Bivens, a judicially implied cause of action for constitutional violations committed by federal law enforcement officials.[16] On this second round of the litigation,[17] the Court declined to find any basis for granting a remedy: Bivens was deemed not to apply nor could the family raise due process claims. Andrew Kent’s intricate analysis of the efforts by the Hernandez family to navigate the increasingly narrow and tortuous paths towards accountability reveals the degree to which the Court is committed to conferring innocence, even for acts involving lethal force. While the case does pose complex questions regarding extraterritoriality and the constitutional rights of non-citizens, these did not justify waiving off the family’s basic due process claim. This is particularly so since, as Kent points out, the end result of the Court’s decision is that no court could consider whether this killing violated the Constitution. In absolving the agent, and the Border Patrol’s lethal practices, the ruling betrays the fundamental promise of the Constitution, as affirmed since Marbury v. Madison—that “for every right, there must be a remedy.” [18] The majority’s decision obscures the high price of innocence. According to the Southern Border Communities Coalition, between 2010 when Sergio was killed and February 2020, six people have been killed by the Border Patrol in cross-border shootings.[19] There is little in the majority opinion to reflect this truth.

Kansas v. Glover,[20]like Hernandez, involved an analogous question of law enforcement accountability for constitutional violations. While the cases differed in important ways—the violence of the encounter, the victim and the shooter separated by an international border—the finding in Glover that law enforcement committed no cognizable violation cohered with the narrative of innocence in Hernandez. Glover affirmed the legality of a stop where the deputy ascertained through patrol car-based computer technology that the driver’s license of the registered owner had been revoked. In an 8‒1 decision the Court affirmed the officer’s presumption that the driver was the owner and upheld the validity of the stop under Terry v. Ohio.[21] The matter was not so clear cut, however. As Sarah Seo’s insightful essay points out, the decision missed completely the troubling privacy implications of this technology which, not unlike GPS, can be used to identify targets rather than investigate crime. [22] The Court also failed to consider the racially disproportionate patterns of stop-and-frisk law enforcement policies, as well as imposition of driver’s license sanctions such as revocation. Fundamentally, however, she argues the real issue is not whether the Court accurately assessed reasonable suspicion in this case: The problem is that the so-called “common sense” standard used to assess reasonable suspicion effectively insulates police encounters from meaningful review.[23]

Indeed, Glover represents another step in the doctrinal facilitation of repeated police encounters, many which have become the predicate to seemingly endless incidents of what Devon Carbado has called “blue on black violence.”[24] For Seo, it further illustrates that under this doctrinal regime, the Fourth Amendment has been converted from a shield against government abuse to a tool of discretionary power for law enforcement, telling the police what they can do and how far they can go.[25] She advances a bold argument for overruling Terry as inconsistent with originalist principles. This is not something that this Supreme Court will likely entertain. But Seo’s project is a challenge to the Court’s innocence and silence regarding the racially corrosive effects of Terry. By the summer of 2020, the whole world was watching. But was the Court?

Glover occluded racial reality, but, as Erwin Chemerinsky’s essay makes evident, the Court’s reasoning in Comcast v. NAAOM [26]especially depended on disavowal and the maintenance of this kind of innocence. In Comcast, the Court unanimously held that Section 1981 of the Civil Rights Act of 1866, prohibiting racial discrimination in contracting, required that a minority owned media company prove that race was the “but for” reason that it failed to secure a distribution contract with Comcast. There was evidence that Comcast repeatedly changed its requirements as the plaintiff met them, misrepresented that it had no capacity to carry the plaintiff’s products while entering into contracts with white-owned companies, as well as an explicit statement from a Comcast executive reflecting that the refusal was racially motivated. Yet, the Court found that the plaintiff could not make out a case under the statute as there was insufficient evidence that the denial was because of race. The imposition of a “but-for” standard as distinct from proof that race was a motivating factor raises a near impossible bar for plaintiffs in Section 1981 cases, and as Chemerinsky argues, threatens to infect the proof standards in other civil rights statutes.[27] As he notes, given the history of racial discrimination generally and racial exclusion in the media in particular, the disconnect between the law, its purpose, and the Court’s interpretive stance in Comcast is particularly profound. The Court is also underwriting a claim of societal innocence.

Chemerinsky’s restrained yet devastating take down of the Court’s reasoning—that as a matter of history and statutory interpretation the Court got it dead wrong—raises the question of why the decision was unanimous. Considering this issue requires comparing Comcast to Bostock v. Clayton County,[28] the blockbuster case involving LGBTQ rights.

The Court’s 6‒3 decision in Bostock was an undeniable milestone. In holding that Title VII’s prohibition on sex discrimination includes discrimination against gay or transgender persons, the Court appeared to depart from expectations that its strong conservative bent foreclosed any acceptance, let alone expansion of rights for marginalized sexual minorities. Perhaps Bostock should assuage concerns about the Supreme Court’s hostility to claims of and accountability for discrimination. But celebration must be tempered here: The expansion of Title VII’s protections occurred within a context where proof requirements for claims under other federal civil rights laws were made more onerous.[29] From this perspective, the juxtaposition of Bostock with Comcast is sobering. Despite different outcomes, the cases share a formalist analysis that underwrites the repudiation of history and the “fleeing from reality” decried in Baldwin’s letter.[30] Comcast ignored the societal and specific context of racial discrimination, and Justice Neil Gorsuch’s opinion in Bostock assiduously avoided any reference to the entrenched and ongoing discrimination and violence against LGBTQ persons. Instead, as Sachin Pandya and Maria McCormick contend, Bostock was based on a textualist analysis to ascertain the “ordinary public meaning” of Title VII: The Court found that Title VII’s proscription of sex-based decisions includes those based on a person’s “homosexual or transgender status,” notwithstanding the imagined scope of the original legislation.[31] Pandya and McCormick point out, however, the avoidance of social and historical context does not mean that future controversies over the reach of Bostock are not on the horizon: The text is not entirely unambiguous, nor is it clear how Bostock’s logic applies beyond Title VII.[32] The main questions concern the applicability and strength of Bostock’s protection against claims of religious based defenses, that will be decided by a federal bench now populated with Trump appointees, some of whom have shown hostility to LGBTQ rights claims. Importantly, the logic underlying Bostock’s reasoning does not require the Court to grapple with the question of whether religious exercise will become the safe haven for continued discrimination.

June Medical Services LLC v. Russo,[33] the subject of Michelle Goodwin’s essay, repeats the pattern of extending rights to a group, while simultaneously constricting the force of those rights. Here, Chief Justice John Roberts joined the four liberal-centrist judges in rejecting a Louisiana law that restricted the facilities in which abortions could be performed and imposed an admitting privileges requirement on physicians performing the procedure. Relying on principles of stare decisis, the majority found that the law was identical to legislation invalidated by the Court in 2016 in Whole Women’s Health v. Hellerstedt[34]on the grounds that the restrictions imposed did not protect maternal health. Goodwin’s compelling treatment of June Medical situates the struggle over reproductive rights and women’s health care in the context of the fight against women’s subordination. She asserts history is the necessary context for understanding how and why the state of Louisiana persisted in adopting a law that was fundamentally identical to a statute recently declared unconstitutional. Like the Texas law, Louisiana asserted that these barriers were measures to protect mothers, but as in Whole Women’s Health, the evidence there proved the contrary—that the laws were a danger to women’s health. Facts mattered.

But as Goodwin warns, Chief Justice Roberts’s reasoning in June Medical provides cold comfort as he appeared to reject Casey’s mandate that courts consider whether the burden that the law imposes on an abortion confers the benefits the law is designed to achieve.[35] She poignantly notes this was Justice Ginsburg’s last case involving reproductive rights. [36] Now Justice Ginsburg has been replaced by a committed anti-abortion ideologue.[37] What does all this portend for abortion rights, Goodwin asks, given the well-funded and highly organized campaign to undermine women’s reproductive choice in service of “traditional” (read evangelical Christian) values? This “anti-abortion playbook” as she describes it, bombards state legislatures with hundreds of bills, far outside the bounds of constitutional plausibility or moral decency, steadily generating more severe and equally unjustified restrictions. It is, she contends, a sociolegal context in which Casey has not served to protect women’s reproductive rights but has become a weapon against them,[38] as restrictions are justified as protection and burdens are increased, on the grounds that they are not “undue.” This point resonates with Seo’s analysis that current Fourth Amendment law is not a protection against governmental power, it is a handbook on how law enforcement can avoid constitutional constraint.

The Court is not a legislature, but it isn’t, or at least ought not be, impervious to reality nor to actual effects of law’s subordinating power. Preventing and in effect punishing women seeking to exercise their reproductive rights in the name of protection when the provisions actually have the opposite effect is ultimately a cynical exercise that seeks to conceal invidious intent in virtuous clothing. Innocence is not so easily manufactured.

If the denial of history and accountability entrenches the country in a fake reality, then Abbe Gluck’s sophisticated reading of Maine Community Health Options v. United States [39]may suggest that all is not entirely lost, as the Court’s consideration and ultimate rejection of the latest challenge to the Affordable Care Act (the “ACA”) was grounded in hard, cold facts. The ACA required everyone without insurance to get it (the much-maligned individual mandate previously invalidated), and required insurance companies to extend coverage, while compensating them for the risk for the first three years. As part of the crusade to wipe out the ACA, the Republican-led Congress, with the eventual support of President Trump, refused to make these cost-sharing reduction payments. Some insurers went out of business, others increased premiums, with the predictable result that people lost their coverage—over a million just from the collapse of non-profit coops. The Court held 8‒1 that the insurers were entitled to compensation, as they relied on the government’s commitments structured into the legislation. Gluck notes that in contrast to the favored myopic focus on text, the Court’s opinion in Maine Community immersed itself in facts and materials that explained how the law was made, and how the ACA functions. She contends that Maine Community is an exercise in “reconciling textualism with realism,”[40] and may reflect a welcome step towards grounding interpretation in objective facts. In fact, in important respects, even though the ACA has faced an unrelenting onslaught of litigation and repeal efforts, it has become entrenched, creating proverbial facts on the ground that the Court is increasingly compelled to confront.

At the same time, the reasoning in Maine Community may reflect a shift toward facts and realism, but a continuing orientation away from human consequences apart from corporate interests. As Gluck notes, the case was largely framed as a breach of Congress’ promise to pay insurers for taking on more risk. The disastrous effects on those who lost their insurance. because either their insurer failed or they could no longer afford the increased premiums, was not central to the Court’s reasoning. The protection of the ACA through protecting the interests of insurers may reflect the recognition that while some members of the Court are sympathetic to the principle of universal access to health care that Gluck argues undergirds the ACA, the Court’s conservative majority is not and has not given serious attention to the concerns of those without access to affordable health care. Thus, the Court, while upholding the law as enforcement of a contractual promise, has yet to grapple with the pernicious effects of a confluence of factors, including the unrelenting efforts to whittle away any expansion of the health care safety net, while other policies are designed to surveille and control the most private health care decisions of women. [41] Both Maine Community and June Medical count as “wins” for civil rights. Yet both proceed from a frame of exceptionalism, leaving very fragile ground for sustaining, let alone expanding their reach.

Still, an interesting question to consider is why Maine Community was able to garner a rare, near unanimous opinion. Nelson Tebbe and Micah Schwartzmans’s thought provoking reading on the scope of religious based exemptions and free exercise guarantees in three religion-based cases from this term—Our Lady of Guadalupe School v. Morrisey Berru,[42] Little Sisters of the Poor v. Pennsylvania,[43] and Espinoza v. Montana Department of Revenue[44]—offers one plausible theory. Tebbe and Schwartzman analyze seemingly puzzling departures of centrist and liberal justices from prior principles to join the majority’s readings of the Establishment and Free Exercise Clauses that provide organized religion greater rein in the public sphere. The authors contend that rather than mitigate the conservative position, the unilateral concessions given by the Court’s liberal and centrist wings in these cases is a project of appeasement that has garnered little in return other than “the self-defeating effect of emboldening the other party to take more assertive action.”[45]Moreover, they argue that appeasement is a strategic failure as the conservative position claims legitimacy because it commands the support of more than a 5‒4 majority.

Tebbe and Schwartzman acknowledge that the cases from this term do not offer clear-cut support for their thesis: In two cases, Morrisey-Berru and Little Sisters of the Poor, the liberal-centrist justices joined the majority to find in favor of expanded religious exemptions, from civil rights laws in the former decision, and in the latter, from provisions of the Affordable Care Act. But in a third case, Espinoza v. Montana Department of Revenue, the liberal justices declined to join the majority’s opinion that required that state-funded school-choice programs include religious schools, despite a state constitutional ban. The dissenting liberal justices here arguably undercut the appeasement thesis. But Tebbe and Schwartzman read this case in the context of prior efforts at appeasement in a related case that had already failed. Nor did the authors find convincing the claim that the liberal votes in the religion cases won Chief Justice Robert’s votes in cases like Bostock or June Medical. As they note, there are other reasons that might motivate Chief Justice Roberts. Moreover, the scope of the rights affirmed in both “victories” is delimited precisely by the logic in the cases on religious exemption. What is given with one hand may be taken by another. Whether one concurs with the authors’ appeasement thesis, or is convinced by their evidentiary assessment, their analysis illuminates that power, which currently resides with the conservative majority, is not placated by acceding to its exercise in some cases.[46]

What do limits on power mean in this context where the Court’s claim of neutrality appears to consistently align with a conservative political agenda?[47] This question was particularly pressing this term as the debates over executive authority intensified as a consequence of the Trump administration’s maximalist assertion that effectively there were no limits. The struggle over the scope of executive power this term yielded mixed results. Steven Schwinn’s lucid essay on Trump v. Mazars[48] and Trump v. Vance[49] contends that even as both decisions rejected the president’s claim that no investigation could obtain his financial records and tax returns, President Trump’s assertions that no other branch of government—either congressional committee or state criminal investigation—had authority to command their release created their own reality. In other words, Schwinn argues that while Mazars and Vance affirmed the power of other branches relative to the Executive, and checked President Trump’s brazen and unsupported claims, effectively Trump secured the result he desired by simply running out the clock until he can leave office. In principle now, pursuant to Mazars, no executive can ignore congressional investigations, nor based on Vance, is he categorically immune from state criminal prosecution. But the Court’s decision to remand the cases effectively gave the president the room to continue his belligerent non-compliance. As Schwinn points out, by repeatedly going far beyond the parameters of plausible constitutional interpretation, President Trump resets the balance of power inherent in separation of powers and inflicts damage to the structural framework of the Constitution. The formalist constraint imposed by the Court in both cases is undermined by the decision to remand and leaves President Trump free to delay, deny, and deflect. Beyond this case, the accretion of executive power is inversely related to accountability.

Peter Shane’s essay on Seila Law LLC v Consumer Financial Protection Bureau [50]illustrates what he calls the “high water mark” of a theory of presidential power—the unitary executive—that has been part and parcel of the conservative political agenda since the 1980s and the election of Ronald Reagan. In this case, ostensibly, the president’s removal power was violated by the creation of a consumer protection agency, headed by a single director, appointed by the president for a fixed term, subject only to dismissal for neglect or malfeasance. The illogic and ahistorical arguments advanced to support the claim that concentrated power in the Executive protects democratic liberty are more than fully dissected by Shane.[51] The genealogy of the current justices on the Court appointed by Republican presidents runs through the Reagan and Bush administrations, such that a majority of them have been fully inculcated into this unitary executive theory.

As Shane points out, the ascendancy of this framework has greater significance than the actual effect of this decision, which did not strike down the entire statute. The danger of the view that the executive is imbued with virtually unlimited authority is twofold: doctrinal osmosis eroding other aspects of the regulatory state as well as intensified polarization as a result of increasing the stakes of presidential elections.[52]

It is telling that the Court’s majority chose to endorse such a theory against the backdrop of the Trump presidency—when the occupant of the office demonstrated not only lack of awareness but complete disdain for any notion of institutional or structural constraints on his personal preferences. As the Trump presidency lurches to its final days, it is also ironic, tragic and dangerous that this “myth” has garnered the support of thousands who march against the Court for its supposed failure to intervene and “Stop the Steal.” It is also abundantly clear that the cancer of Trumpism ensures that the incoming administration of President Elect Biden and Vice-President Harris will not enjoy the presumption of concentrated and virtually unlimited executive power. Indeed, what would have been uncontroversial previously may become the basis for increasingly strident claims and incendiary threats by Trump supporters against all those who do not concur. The Court has been an enabler in this morass. It cannot now claim innocence of its results.


The Court’s task is to focus on facts and law in the cases before it, but the notion that ignoring social context is essential to fairness is both unrealistic and fundamentally untrue. Social context shapes and influences judicial interpretation; law shapes and influences social reality. Courts ought to strive for objectivity and not prejudge cases, but those commitments do not require judges to embrace the fiction that background social, economic, and political conditions are equal—that the baselines are neutral--when, in fact, they are not. Indeed, the presumption of neutrality is predicated on a particular perspective that disavows the relevance of certain social realities and of history itself. The central question then is not whether to take account of the social world, but how.

Eddie Glaude’s essay on The History that James Baldwin Wanted America to See[53]reminds us of other moments when Baldwin called for a reckoning with history: In another essay written in the wake of the Watts Rebellion, Baldwin said, “History, as nearly no one seems to know is not merely something to be read. And it does not refer merely, or even principally to the past. On the contrary, the great force of history comes from the fact that we carry it within us.”[54] The intimate relationship between history and the present requires shedding the myth of innocence.[55] Otherwise, as Baldwin’s prescient voice reminds us, there is no way to rectify and disrupt the ongoing patterns of destruction.


[i] The Court accepts cases, “if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.” Supreme Court Procedures, U.S. Courts (Dec. 15, 2020, 12:14 PM).

[ii] See Daniel Gonzalez, 628 parents of separated children are still missing. Here's why immigrant advocates can't find them, USA Today (Dec. 11, 2020). According to a report by the House Judiciary Committee, the family separation policy expanded the so-called zero-tolerance program after its initial implementation in the fall of 2017, knowing that it did not have the ability to track the children and the families and reunite them. Id.

[iii] James Baldwin, The Fire Next Time (1963).

[iv] James Baldwin, Letter to My Nephew, Progressive, Dec. 1,1962. The essay was re-published as Letter to my Nephew on the One Hundredth Anniversary of the Emancipation in the acclaimed collection, The Fire Next Time.

[v] Id.

[vi] George Lipsitz’s classic, The Possessive Investment in Whiteness: How White People Profit from Identity Politics, describes the interlocking public and private systems that together work to create an investment in whiteness that creates valuable advantages for those at the top of the racial hierarchy. George Lipsitz, The Possessive Investment in Whiteness: How White People Profit from Identity Politics (2018).

[vii] Baldwin, supra note 3 at 8.

[viii] Id. at 9

[ix] Id. at 6 (emphasis added).

[1] Dept. Homeland Security v. Regents of the State of California, 140 S. Ct. 1891 (2020).

[2] Cecillia D. Wang, Department of Homeland Security v . Regents of the University of California: A Dream Deferred, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[3] Id.

[4] While the term “alien” is often justified as a legal description, it is not simply a neutral synonym for non-citizens. Journalist, essayist and playwright Jose Antonio Vargas, then an undocumented immigrant, explained the term “’alien’ is nothing but alienating. And when coupled with ‘illegal,’ it’s especially toxic. The words seep into the psyche, sometimes to the point of paralysis. They’re dehumanizing.” Jose Antonio Vargas, I Am Not an Alien, LA Times (Aug. 13, 2015). This is not simply a matter of subjective reaction to the label. The term “alien” even absent the modifier “illegal” connotes criminality and authorizes use of coercion and force. As previously noted:

[T]he line between citizen and noncitizen is mediated by and bears the racial imprint of a particular historical feature of U.S. immigration law—the government’s explicit employment of race as a proxy for citizenship. In the context of contemporary immigration boundary between citizen and noncitizen and further conflates noncitizenship and undocumented status. To make the point concrete, the simple “fact” of apparent Latino ancestry renders a person presumptively an undocumented noncitizen—or, to invoke the unfortunate quasi–term of art, an “illegal alien.” This does not mean that immigration officials and law enforcement personnel actually believe that most or all Latinos are undocumented. The point is that because Latino identity is deemed relevant to the question of whether a person is undocumented, all Latinos live under a condition of presumed illegality. They pose a danger not because their conduct is illegal but because of their purported status—they are illegal.

Devon W. Carbado & Cheryl I. Harris, Undocumented Criminal Procedure, 58 UCLA L. Rev.1543, 1546-47 (2011).

[5] For example, the very presence of Latinx immigrants in the country is presented as a result of individual choice, rather than as a consequence of policies promulgated and supported by the United States. See Laura Gomez, Inventing Latinos: A New Story of American Racism 16 (2020) arguing that “due to U.S. imperialism, Latinos should be treated as ‘involuntarily present’. . . .”)

[6] See Jennifer M. Chacón, Stranger Still: Thuraissigiam and the Shrinking Constitution, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020); Andrew Kent, Hernandez v. Mesa: Questions Answered and Questions Avoided, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[7] As Justice Sotomayor’s dissent noted, the comments were legion and were at the core of the policy decisions. They included declarations that Mexican immigrants are “people that have lots of problems,” “the bad ones,” and “criminals, drug dealers, [and] rapists”  and comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13.” Dep’t. Homeland Security v. Regents of the State of California, 140 S. Ct. 1891, 1917 (2020) (Sotomayor, J., dissenting) (internal quotation marks omitted).

[8] Specifically, the plurality found: “Respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements probative of the decision at issue.” Regents, 140 S. Ct. at 1916. Apparently, the plurality presumed that an agency secretary—a political appointee—would undertake such a monumental decision without direction from the White House. There was evidence that contradicted the plurality’s conclusion that the White House did not order this decision. See Wang, supra note 11.

[9] Dep’t of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020).

[10] Id. at 1983.

[11] Id. at 1964.

[12] Alito’s opinion began with a description of a system that is overwhelmed with asylum claims most of which ultimately fail or are fraudulent. The system then is designed to “weed out” the meritless and fraudulent claims, which according to the Court, are the majority (noting that “the credible-fear process and abuses of it can increase the bur­dens currently “overwhelming our immigration system.” … [with] [t]he past decade [seeing] a 1,883% increase in credible-fear claims….[t]he majority [of which] have proved to be meritless.”. Id. at 1967.

[13] See, e.g., Molly O’Toole, Asylum Officers Rebel Against Trump Policies They Say Are Immoral and Illegal, LA Times (Nov. 19, 2019); Ruthie Epstein & Shaw Drake, Ban on Attorney Access for Asylum Proceedings in Inhumane CBP Jails Key to Trump's Attack on Asylum, ACLU (Feb. 26, 2020); Ruthie Epstein, One Year of Forced Return to Mexico; Three Years of Trump Dismantling the Asylum System, ACLU (Jan. 29, 2020).

[14] Ryan Teague Beckwith, President Trump Called El Salvador, Haiti 'Shithole Countries, Time (Jan. 11, 2018).

[15] Hernandez v. Mesa, 140 S. Ct. 735 (2020)

[16] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

[17] On the first round, the Court remanded the case for further consideration. Hernandez v. Mesa, (Hernandez I), 137 S. Ct. 2003 (2017).

[18] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803).

[19] See Cross-Border Shootings by Border Patrol Since 2010, S. Border Comm. Coalition (last updated Feb. 26, 2020) Each of the accounts in the report bears an eerie and disturbing resemblance to facts in this case: The victims were on the Mexican side of the border, allegedly throwing rocks.

[20] Kansas v. Glover, 140 S. Ct. 1183 (2020).

[21] Sarah Seo, The Originalist Road Not Taken in Kansas v. Glover, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[22] Id.

[23] As Seo astutely observes, Justice Kagan’s concurrence justified the search on the fact that Glover’s driver’s license had been revoked, ostensibly signaling more serious and dangerous driving infractions; however, Kagan overlooked the fact that revocations are often the result not of bad driving but of poverty. Id.

[24] See Devon W. Carbado, Blue on Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479 (2016).

[25] Carbado’s observations are in accord:

By prohibiting the government from engaging in unreasonable searches and seizures, the Fourth Amendment is supposed to impose constraints on the police. However, the Supreme Court has interpreted the Amendment in ways that empower, rather than constrain, the police. More precisely, the Court’s interpretation of the Fourth Amendment allows police officers to force engagement with African-Americans with little or no basis. To put the point more provocatively, the Supreme Court has interpreted the Fourth Amendment to protect police officers, not black people.

Id. at 24.

[26] Comcast v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009 (2020).

[27] Erwin Chemerinsky, A Major Step Backwards for Civil Rights: Comcast v. National Association of African American Owned Media, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[28] Bostock v. Clayton Cty. Bd. Of Comm’rs, 140 S. Ct. 1731(2020).

[29] Expanding LGBTQ rights while contracting rights and remedies for racial discrimination is not new. My colleagues and I argued previously that the endorsement of same sex marriage in Windsor and Perry in the 2012-13 term came in conjunction with the evisceration of the Voting Rights Act, and the further constriction of anti-discrimination law generally. Devon W. Carbado, Kimberlé Williams Crenshaw & Cheryl I. Harris, Why We Can’t Celebrate, Nation (July 8, 2013).

[30] Baldwin, supra note 4.

[31] Sachin S. Pandya & Marcia McCormick, ‘Sex’ and Religion after Bostock, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[32] Does Bostock’s protections apply only to individuals, or does it govern where the statutory standard appears to go beyond “but-for?” See id.

[33] June Medical Services, LLC v. Russo, 140 S. Ct. 2103 (2020).

[34] Whole Women’s Health v. Hellerstedt, 136 U.S. 2292 (2016).

[35] Planned Parenthood of Se. Pa., v. Casey, 505 U.S. 833 (1992) established the undue burden test that currently governs analysis of regulation of abortion. However, as Goodwin notes, Roberts’s opinion dismisses the assessment of the costs and benefits of the regulation as “not the Court’s job.” June Med. Servs. LLC v. Russo, 140 S. Ct. 2103 (2020) (Roberts, J. concurring). This, despite the fact that constitutional balancing tests often do precisely that, not as a first order inquiry, but in testing the legislative or executive rationale (ends) against its actual operation (means).

[36] Michele Goodwin, Beyond June Medical and Roe v. Wade, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[37] Justice Ginsberg was replaced by Amy Comey Barrett by a 52‒48 vote of the Senate on October 26, 2020. See Nicholas Fandos, Amy Coney Barrett is Confirmed by Senate, Reshaping the Supreme Court, N.Y. Time (Oct. 26, 2020). Justice Barrett is an avowed opponent of abortion. See Anna North, What Amy Coney Barrett on the Supreme Court Means for Abortion Rights, Vox (Oct. 26, 2020).

[38] Goodwin, supra note 45 (weaponizing Planned Parenthood v. Casey).

[39] Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020).

[40] Abbe Gluck, Holding Congress to its Word: Statutory Realism, Second-Generation Textualism and ACA Entrenchment in Maine Community Health Options, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[41] Of course, with another perennial challenge to the ACA argued before the Court in the 2020‒2021 term, it remains to be seen if the catastrophic consequences of striking down the ACA in the middle of a pandemic play any role in the decision. See Jonathan Cohn, Trump’ Last, Desperate Attack on Obamacare Goes to the Supreme Court This Week, HuffPost (Nov. 9, 2020) (reporting on the case California v. Texas).

[42] Our Lady of Guadalupe School v. Morrisey-Berru, 140 S. Ct. 2049 (2020).

[43] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).

[44] Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).

[45] Nelson Tebbe & Micah Schwartzman, Re-Upping Appeasement, Religious Freedom and Judicial Politics in the 2019 Term, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[46] In the words of the great Frederick Douglass, “Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both.” Frederick Douglass, If There Is No Struggle, There Is No Progress (Aug. 3, 1857) ( address commemorating West Indian emancipation).

[47] As Erwin Chermerinsky has noted previously, when conservative Justices like Scalia “profess[] that he follows the original meaning of the Constitution, but his are the views of the 2008 Republican platform, not of the Constitution’s framers,” Erwin Chermerinsky, The Conservative Assault on the Constitution (2010). While obviously Scalia is no longer deciding cases, the point Chemerinsky raises here obtains with some of the other conservative justices. Not all ascribe to the same form of originalism, but all seem to find readings of the constitution that align with a particular political orientation.

[48] Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

[49] Trump v. Vance, 140 S. Ct. 2412 (2020).

[50] Seila Law LLC v. Consumer Finance Protection Bureau, 140 S. Ct. 2183 (2020).

[51] Peter Shane, Seila Law LLC v. CFPB and the Persistent Myths of Presidentialism, 4 Am. Const. Soc’y Sup. Ct. Rev. ___ (2020).

[52] Id.

[53] Eddie Glaude, The History that James Baldwin Wanted America to See, New Yorker (June 19, 2020).

[54] Quoted in id.

[55] As Glaude says, “Baldwin wanted to free us from the shackles of a particular national story, so that we might create ourselves anew. For this to happen, white America needed to shatter the myths that secured its innocence.” Id.