Getting Front and Center to Confront Prejudice

Headshot of Doug Chin
Doug Chin, Former Hawaii Attorney General

Travel Ban Rally in front of the Supreme Court as Trump v Hawaii is argued inside on 4/25/18

This is the third piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

At the height of President Trump’s Muslim ban controversy, when lower courts deciding Hawaii v. Trump were consistently ruling that the ban was either blatantly unconstitutional or illegal or both, this comment showed up on the Hawaii Attorney General’s Facebook page:

“Get back in your corner, Hawaii.”

I was the Hawaii Attorney General at the time. My staff proposed the following reply:

“Nobody puts Hawaii in a corner.”

It was tempting. I said no, partly because I wasn’t sure millennials would know the Dirty Dancing reference, but also because this was our official government account and I wanted to maintain a certain decorum. Our otherwise snappy and perfect comeback to an anonymous troll remained an inside joke until today.

I knew very well what staying in the corner meant. Even though I was born in Seattle with all the rights and privileges of a U.S. citizen, I was still the son of Chinese immigrants who had learned English as a second language, left their homes and families, and came to America in hopes that their future kids (my sister and I) could have a better life. The knowledge of all that parental sacrifice ingrained in me early the responsibility to be a “model minority” – work hard, excel, and don’t call attention to yourself. “The nail that sticks up gets struck down” was a constant and even comforting mantra. I dumbed down my verbal answers in class to not look too smart. I was careful not to offend others with political statements and, due to how I was raised, I even looked down on those who did. In college, I never once marched in or participated at a political event. Same goes for law school.

Historically, Americans of Asian descent have faced serious forms of prejudice. In the late 19th century, the Chinese Exclusion Act banned Chinese immigrants from entering the country. During World War II, on February 19, 1942, Executive Order 9066 went into effect from the U.S. government. Its stated purpose was to provide “every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national defense utilities.” The result of Executive Order 9066 was the imprisonment of more than 100,000 Japanese-Americans, many of whom were citizens. Yet, no case of espionage or sabotage by a Japanese-American was ever recorded during World War II. Though some brave individuals spoke up in outrage to these unjust laws – including Fred Korematsu, whose case against the United States, Korematsu v. United States, 323 U.S. 214 (1944), led to the U.S. Supreme Court upholding the constitutionality of Executive Order 9066 – most did not.

State Attorneys General Can Check the Federal Government

On January 27, 2017, I watched from my geographically remote corner of the country while President Trump’s initial Muslim ban took effect. Trump made good on his campaign statements that “Islam hates us,” that people who practiced the Muslim religion were terrorists, and that he would order a “total and complete shutdown” of Muslims entering the country when he took office. As a result, air passengers in flight were told they would not be allowed to enter the U.S. when they arrived. Green card holders from the banned Muslim-majority nations heard the same. Refugees who had waited years to escape horrific circumstances in their own countries were immediately barred from entering the country, a ban that has remained largely unchanged to this day. The weekend the ban took effect, protesters marched in airports around the country, including 5,000 miles away from Washington, D.C. in Honolulu’s typically non-controversial, tourist-friendly airport, where hundreds of people, many of Asian American and Pacific Islander (AAPI) descent, gathered to speak out.

My immediate reaction was that this was a dangerous step down a fast, slippery slope towards internment camps based upon blatant, unconstitutional discrimination or worse. Several of my state attorney general colleagues at the time held similar concerns or had other serious misgivings towards the President’s action. Within days, lawsuits brought by states including Hawaii against the Muslim ban were filed in federal courts.

In our federal system, states have a unique capability and responsibility to serve as a check on the federal government. States, through their attorneys general, can successfully claim standing and assert themselves into controversies in ways individuals or private organizations cannot. Under the parens patriae doctrine, a state attorney general may assert claims on behalf of the state’s residents and to act as the legal protector of those who are unable to protect themselves. A state may also sue the federal government when the state’s own wide-ranging sovereign interests, including the interests of its public agencies and institutions, come under threat. In Hawaii v. Trump, courts at all levels expressly accepted or did not reject Hawaii’s assertion that the travel ban, enforced upon public university students and faculty from Muslim-majority countries, would diminish the university experience and injure the State. The successful assertion of standing on behalf of a state unlocks the door to the federal courthouse and the potential for a federal judge to issue an order which carries a nationwide effect. In this way, individual state attorneys general possess an extraordinary superpower which they can use to challenge and halt federal government actions. Recent history has shown that state attorneys general can wield this power for good and just causes or for not-so-good purposes. That is why the various races for state attorney general are so important in states that elect their attorney general, and the races for governor are important in states in which the governor appoints the attorney general.

The Fight Against the Muslim Travel Ban

From his courtroom in Honolulu, Hawaii federal judge Derrick K. Watson, an individual of Pacific Islander descent, granted Hawaii’s motion to block the Muslim ban and ordered that it take effect nationwide. This caused then-U.S. Attorney General Jeff Sessions to publicly complain that there was an “activist AG” (apparently referring to me) in Hawaii and that it was too bad a judge on an “island in the middle of the Pacific” could unilaterally halt the President’s executive action. (In response to Sessions, my office tweeted a picture of the Hawaii state constitution, a social media post I did allow). In his ruling that the Muslim ban violated the Establishment Clause of the First Amendment to the U.S. Constitution, Judge Watson wrote this statement that struck me as especially poignant: “The Court will not crawl into a corner, pull the shutters down, and pretend it has not seen what it has.”

In a 5-4 decision, 585 U.S. __ (2018) – after the U.S. Government issued what Trump described as a “watered-down version” of his original Muslim ban, and then issued a third iteration which diluted, at least on paper, the focus on Muslim-majority nations – the Supreme Court in 2018 overturned the lower courts’ decisions and upheld the ban. The majority opinion expressly referred to the 1944 Korematsu decision as “gravely wrong” and overruled it, though in her dissent, Justice Sotomayer wrote that the Trump decision “redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

I have been asked on occasion whether it was difficult to go from being a self-proclaimed member of the “model minority,” who throughout my life had watched most controversies from the “corner,” to becoming the Hawaii Attorney General who sued the President of the United States and took it all the way to the U.S. Supreme Court. Frankly, the decision to sue the President took less time than deciding what to say in response to the social media posts which followed. To me, the Muslim ban represented dark, fearful, irrational hatred. It was brazenly unconstitutional and illegal. It was a step backwards from progressive ideals. It was not a path or direction I wanted my country to take. It stood against values of diversity, acceptance and inclusion which make Hawaii, and the rest of America, so special. As a state attorney general, bringing a lawsuit to uphold and respect the U.S. Constitution and its laws was required by the oath I made when I took office. As an Asian American, it was an opportunity to be front and center in the ongoing fight to confront prejudice in America.

Doug Chin is a Director at Starn, O’Toole, Marcus & Fisher. He served as Hawaii’s Attorney General from 2015-2018 and was the first Hawaii Attorney General to chair the Conference of Western Attorneys General, and the first to serve on the Executive Committee of the National Association of Attorneys General. He serves on the Board of Directors of the Leadership Center for Attorney General Studies.

ACS Condemns Attacks Against Trans Youth

Trans rights are human rights. Yet, conservative lawmakers in more than half the states in this country are engaged in an orchestrated, intentional assault on them, specifically the rights and identities of trans youth. Those who are targeting trans youth for partisan gain must be indifferent to the immense pain and harm they are inflicting. These legislative and executive attacks are repugnant and move states in the wrong direction. ACS condemns these efforts to marginalize and silence trans individuals.

The Human Rights Campaign, which tracks anti-trans legislation, defined 2021 as the worst year for anti-trans legislation, with over 280 anti-LGBTQ bills introduced in 33 state legislatures. Over 130 of these were explicitly anti-trans. This continues a dangerous trend, whereby every year since 2015 becomes the “worst year” for anti-trans legislation, surpassing the year before it. This year-over-year increase compounds the egregious nature of these bills and their collective impact.

The bills and executive actions aim to do a variety of things, none of them good or valid or informed by fact. They run the gamut from Florida’s “Don’t Say Gay Bill,” which is now state law and forbids conversation about gender identity or sexual orientation in K-3 elementary school, to the Texas governor’s efforts to unilaterally criminalize gender-affirming care for minors and investigate the people involved in providing it, to bills in several states striving to ban trans youth from participating on sports teams that align with their gender identity. The different lines of attack against trans youth are all interconnected, and any state that starts down one line of attack, whether it’s banning trans youth from sports or denying gender affirming care, is likely to pursue more laws that threaten, marginalize, and harm trans youth.

These efforts are premised on falsehoods and egregious mischaracterizations of gender affirming care, gender identity, and what it means to be trans. They perpetuate the Right’s war on science and flagrantly disregard the advice of medical experts and major medical organizations in the country, including the American Academy of Pediatrics and the American Medical Association, which consistently advocate against these dangerous state bills and in support of ensuring access to gender affirming care for trans and non-binary youth.

Many of these state laws and directives have been or will be litigated. Texas Governor Greg Abbott’s directive to investigate those involved in gender affirming care has already been stopped by a court. But, the legal fate of these efforts is secondary to their real purpose, which is to marginalize and harm trans people, censor any conversation about them, and spread fear using the law or the threat of legal action as a weapon of oppression.

Even if every bill is stopped, either in state houses or in courts, they have already had an immense and harmful impact. The Trevor Project recently conducted a poll of LGBTQ youth and found that 66 percent of respondents said the debates on trans rights have had a negative impact on their mental health. Eighty-five percent of trans and non-binary youth said the same. This is devastating and long-lasting, particularly when research repeatedly demonstrates the benefits of gender-affirming care for reducing depression and suicide in transgender and nonbinary youth.

As Christopher Wright Durocher, ACS Vice President for Policy and Program, said on our Broken Law Podcast, this is not the first time that we have seen politicians seek to score partisan points by targeting members of the LGBTQ community. The pursuit of marriage equality in this country was a multi-decade battle against these same types of attacks, meant to marginalize and shame LGBTQ members. Now that marriage equality is the law of this land, members of the Right have shifted their focus to trans individuals, specifically trans youth. These attacks are not new, although the decision to target children is particularly and truly reprehensible.

We need to strengthen trans rights in this country. We need to be focused on ensuring legal protections against discrimination in housing, employment, and public accommodations, on ensuring that insurance plans cover gender affirming care, on banning conversion therapy, on ensuring access to accurate state identification documents, and other necessary reforms to ensure that trans people are included, respected, and safe.

Determining appropriate mental, behavioral, and medical healthcare should be exclusively the decision of transgender and gender nonconforming youth and their families, in consultation with their doctors. Such personal decisions should not be politicized to provoke fear and hate. LGBTQ youth deserve to see themselves respectfully reflected in the curricula they receive at school. LGBTQ youth deserve safety. And the attempted erasure of LGBTQ youth should be resoundingly condemned.

ACS stands in solidarity with trans people and their families and affirms the human dignity and rights of all LGBTQ people.

Partners in the Fight for Environmental Justice: Ways That State Attorneys General Can Support Community Efforts

US House Committee Natural Resources Environmental Justice Forum Rep. Raul Griijalva L.A. River Center 2015" by The City Project

This is the second piece in an eight-month long blog series aimed at highlighting state attorneys general and their work. Upcoming blogs will feature writings from former and current state attorneys general and their staffs.

Environmental justice (EJ) communities (which we define in our Web Resource on Environmental Justice as communities of color and low-income communities that face disproportionate environmental burdens), have been fighting for decades to preserve their right to a healthy environment. Many barriers to that work exist, however. State attorneys general (AGs), as government lawyers, can play an important role in addressing those barriers. Below, we lay out several areas where attorneys general can and, in some cases, have been able to use their unique powers to do just that.

I.      THE PARTICIPATION PROBLEM

Where other, wealthier or more politically-connected communities may have access to lawyers to file suit or can apply pressure to policymakers to address pollution and other environmental issues, EJ communities have in some cases historically lacked these resources and thus can face entrenched and structural barriers to remedying environmental hazards.

In 2017, the residents of South Vallejo, California, a community with disproportionately high environmental burdens, learned about a proposed cement factory which would negatively impact the already poor air quality in their neighborhood. In a video about the fight against the plant, advocates describe the resource-intensive movement to resist its approval. Community members spoke with their neighbors to increase awareness, the community needed resources to install air monitoring to characterize the pollution already present, and the attorney general’s office contributed legal expertise by submitting a comment letter describing the compounding negative health effects the plant would have, and critiquing the environmental impact analysis completed for the plant. The fight was a contentious one, but ultimately the community, with the support of the AG, was able to prevent approval of the plant.

This case study highlights both the enormous odds an environmental justice community might face as well as the work that a government attorney, like the state attorney general, can do to support a cause. The principles of environmental justice adopted by the First National People of Color Environmental Leadership Summit emphasize that environmental justice work is community led. This commitment to partnership and community-led decision-making is a key part of movement (or community) lawyering, a concept that was discussed recently in a webinar hosted by the Environmental Law Institute. EJ communities have solutions to the environmental problems they face, and many have goals and desires for the solution process. The role of a lawyer—and specifically of a government lawyer—is to partner in bringing about those solutions.

II.     A ROLE FOR STATE ATTORNEYS GENERAL

Attorneys general are the top lawyers in their states, which gives them unique powers and opportunities to make a difference. AGs can and have used their positions to contribute to the work needed to address EJ issues. By supporting citizen science work, promoting strategies to facilitate community engagement, working to ensure that settlement funds from environmental violations return resources to affected communities, and prioritizing communication and empowerment, AGs can help to address the problems raised by participation barriers alongside and in support of EJ communities fighting for environmental justice.

A.  Citizen Science

Environmental issues often involve technical scientific questions, and it can be difficult to address those questions as a community member. “Citizen science” aims to bring the community into the discussion by empowering residents to collect data and learn about the science behind the environmental issues they face. In Massachusetts, Attorney General Maura Healey has facilitated community participation through a program focused on air quality. Launched last year, the project monitors air quality in Springfield, MA, which was once called the asthma capital of the United States. Community members provide input on the location of air quality monitors through the Air Monitoring Project Advisory Committee – helping to spread the message regarding air quality in the community, and collaborating with other organizations working for environmental justice in the Springfield region. This participation model empowers community members to take control of the science and documentation of the health hazards they face, provides them with critical data about pollution loads, and empowers them to make stronger arguments for air quality protection (through permit and policy decisions) in and around their community.

B.  Stakeholder stipends

Participating in a stakeholder group is a critical way for EJ community members to bring their concerns and proposed solutions before policymakers. However, participation is resource-intensive. Participants may have to commute to the meeting location, may require childcare if the meeting is in the evening, and may need internet access if the meeting is held online. In Washington, Attorney General Bob Ferguson advocated for stipends that community members participating in stakeholder groups can use to address resource barriers. AG Ferguson proposed a bill, which has been adopted as law, which provides stipends for people who participate in stakeholder groups. In addition to reimbursing community members for their expenses, it helps demonstrate that community members’ time and input is valued.

C.  Settlements with community benefits

When there is an environmental violation in a community that is already overburdened by pollution, one of the principles of environmental justice is that the community should benefit from any remediation—both through cleanup and direct payments (which might otherwise go into government budgets). Often environmental cases are settled by mutual agreement between the parties before they go to trial, and AGs can work to ensure that those settlements direct funds towards the affected community. For example, in 2011 when the New York AG’s office reached a settlement with the responsible parties over a massive oil spill in Greenpoint, Brooklyn, the settlement included an allocation for a large community fund. The Greenpoint Community Environmental Fund webpage explains that the community collaborates with the AG to distribute the money within the fund and to ensure that projects that receive funds align with local priorities. Community participation allows residents to set priorities regarding what projects are funded and implemented.

D.  Listening sessions

Another participation issue is that community members may feel that their concerns are not heard, or may struggle to use online or phone-based resources to report their concerns to the government. Listening sessions can help to address this issue. In many states, AGs have held listening sessions or town halls, like the session held by the former New Jersey AG on environmental justice programs in the state and the Illinois AG’s recent town hall. The town halls are specifically designed to create a time and place for all interested people, including residents of EJ communities, to speak directly with the AG’s staff members. This helps to remove many barriers that community members might otherwise face when presenting their concerns, priorities, and proposed solutions for environmental problems. For example, residents are not required to go through websites or fill out what might be complex forms reporting violations, residents are not required to have internet access or even phone service when town halls are held (safely) in person, and residents are able to speak face-to-face with government staffers, which helps to build connections and trust.

III.     CONCLUSION

AGs can play a critical role in boosting the work of EJ community advocates as they partner with them to achieve the goals of the community. Removing barriers to participation is a critical component of EJ work. These examples show some of the tools AGs have and should use to address those barriers. To learn more about environmental justice and the ways AGs are confronting environmental injustices, please see Expanding AG EJ Practice, produced in partnership between WE ACT for Environmental Justice and the State Energy & Environmental Impact Center.

Bethany Davis Noll is the Executive Director of the State Energy & Environmental Impact Center at the NYU School of Law. She is a member of the ACS State Attorneys General Project’s Council of Advisors. You can find her on Twitter at @bdavisnoll.

Colin Parts is a Staff Attorney at the State Energy & Environmental Impact Center at the NYU School of Law.

A Week of Death Begs for Death Penalty Abolition

Over the next seven days, South Carolina, Tennessee, and Texas plan to execute four people. Even for those who do not categorically oppose the death penalty, there are unique and disturbing reasons to object to each of these planned executions.

One execution involves reliance on junk science, misinformed and biased jurors, and potentially exculpatory DNA evidence that the state is refusing to pursue. Another will end the life of a seventy-eight-year-old man with multiple chronic health conditions who requires a wheelchair and has spent three decades on death row. A third execution involves a grieving mother coerced into offering a vague and dubious confession mere hours after her two-year-old daughter’s death. The final execution in this gruesome group would see the return of the firing squad.

A Week of Death

Let’s take a closer look at what this deadly week tells us about how the death penalty operates in the United States in the year 2022.

Thursday, April 21, 2022: Tennessee

After three decades on death row, Tennessee is preparing to execute Oscar Smith, who is seventy-two. The state plans to execute him regardless of the fact that an expert in fingerprint analysis has discredited the forensic techniques used to connect Smith to the murder scene as “outdated and unreliable,” and recently discovered DNA evidence from the only murder weapon recovered does not match Smith or any of the victims. This suggests that an unidentified perpetrator may have used the weapon. Despite all of this evidence, the Tennessee Court of Criminal Appeals has refused to reopen Smith’s case.

Last year, the same court refused to consider statements from three jurors in Smith’s case who raised serious questions about the trial, including an admission by a juror who hid from the trial judge his belief “that anytime someone killed a person on purpose they should get the death penalty.” Another juror admitted to erroneously believing “that life in prison was just 13 years [and] did not think 13 years was enough time for this crime,” and so voted for the death penalty and convinced another juror to do the same.

In addition, there is no public safety or penological justification for killing a septuagenarian, as research repeatedly demonstrates the minimalist public safety threat posed by someone of his age. Tennessee’s insistence on disregarding all of this evidence and moving forward with the execution of a potentially innocent man suggests that this is more about vengeance than justice.

Thursday, April 21, 2022: Texas

On the same day that Smith faces execution in Tennessee, Texas plans to execute another septuagenarian, seventy-eight-year-old Carl Buntion, the oldest person on death row in the world. Buntion, who has spent thirty years on death row, suffers from hepatitis, vertigo, sciatic nerve pain, and arthritis. He requires the use of a wheelchair. During his time in prison, he has been cited for only one violent act, punching another prisoner in 1999.

There is no doubt that Buntion committed the crime for which Texas intends to kill him. But his poor health combined with his behavioral history while incarcerated demonstrate that he poses no danger to others either now or in the future, defying one of the core justifications that proponents of the death penalty offer. He is a frail old man who has spent the final decades of his life in prison – and if he were not executed, would spend the remainder of his life in prison. As Justice Stephen Breyer observed in response to a petition the U.S. Supreme Court rejected, Buntion’s "lengthy confinement, and the confinement of others like him, calls into question the constitutionality of the death penalty." Buntion’s execution may satisfy the bloodlust of some, but it will not satisfy justice.

Wednesday, April 27, 2022: Texas

If it’s possible to rank the tragedy of these cases, the death of 2-year-old Mariah Alvarez and the subsequent conviction and death sentence of her mother, Melissa Lucio, may be the most tragic. After hours of relentless interrogation on the same night her daughter died from injuries sustained in a fall down the stairs two days prior, Lucio told police “I guess I did it.” A since-disgraced Cameron County prosecutor used those words, which were spoken under duress that few of us could imagine—along with dubious forensic evidence and a medical examiner’s report possibly influenced by the alleged confession—to obtain a death sentence.

The Innocence Project has found that Lucio has a credible claim of innocence. And yet, last October, the U.S. Supreme Court denied the petition to review her case. Lucio is currently seeking clemency from Texas Governor Greg Abbott. As the result of public pressure, current Cameron County District Attorney Luis Saenz has made some indication that he would intervene to prevent Lucio’s execution if clemency is not offered, but has provided no specifics.

Lucio’s death sentence is obscene, and a condemnation of the death penalty as an institution. A week before she is scheduled to die, Lucio must wait and hope that one of the handful of people with the power to stop her execution will intervene, not to release her from prison, but at least to prevent her unnecessary death.

Friday, April 29, 2022: South Carolina

South Carolina does not have access to the drugs required to conduct lethal injections, the prevailing method of execution in the United States (which itself is arguably cruel and unusual punishment). But rather than abandoning the death penalty after a decade without any executions, South Carolina passed a law last year to revive two archaic methods of execution: the electric chair and the firing squad. In a cruel twist, the new law gives people facing execution the option to choose which barbaric method they will die by.

Richard Moore is the first person to face execution under this new law. On Friday, April 15, Moore made the Hobbesian choice to die by firing squad. He will be the first person executed by firing squad outside of Utah in more than six decades. In his statement choosing to be shot to death, Moore said, “I believe this election is forcing me to choose between two unconstitutional methods of execution.”

We believe so, too.

A Bigger Picture

The questionable justifications for each of these executions are disturbing enough. It’s compounded by the fact that throughout much of the rest of the nation (and the world), the death penalty has disappeared.

Over the past two decades, the number of state executions in the United States annually has steadily declined. In 1999, at the height of executions, states killed ninety-eight people. That number has consistently and dramatically declined over the past twenty years, with just eight people being executed by states last year. In that same period, eleven states abolished the death penalty and three more imposed moratoria, leaving the total number of states with a potentially active death penalty at less than half. Of the remaining death penalty states, seven have not executed a person in at least a decade.

The trends are clear—the death penalty is falling out of favor in this country. And the reasons are equally clear—nearly 200 people sentenced to death have been exonerated, as many as seven percent of lethal injection executions have been botched, and in recent years the racial inequities and arbitrariness inherent in the imposition of the death penalty have received the attention they deserve.

Absent intervention by a court or governor, this upcoming week of death will more than double the number of state-sanctioned killings in the United States in 2022 and will place the total state executions so far this year at only one fewer than in the entirety of 2021. It’s a grotesque way to mark the end of April, a month typically defined by renewal and new life, and a tragic declaration of the need for death penalty abolition in this country.

In Pursuit of Progressive Jurisprudence

Judge Jackson’s hearings proved, once again, that the political discourse of judging is dominated by pop-notions of “textualism” and “originalism.” Dahlia Lithwick was right to express concern at Senate Democrats’ “almost staggering inability to lay out any kind of theory for progressive jurisprudence, or even a coherent theory for the role of an unelected judiciary in a constitutional democracy.” That silence was not strategic--it simply reflects the reality that the public narrative of acceptable judicial “philosophy” remains a largely uncontested stronghold of the conservative judicial establishment.

ACS can, and must, help to change that. And we should start with a serious and sustained discussion about how to publicly create a well-rounded, wholistic approach to judging as a counterweight to conservative pop-judicial “philosophies."

We should not be surprised that conservative senators asked questions about Judge Jackson’s judicial “philosophy.” Conservatives have spent decades baking “textualism” and “originalism” into the public narrative of what it means to be a “good” judge. (Even Justice Kagan has quipped: “We are all textualists now.”) Without an alternative frame, Judge Jackson was vulnerable to attack no matter how she answered.

Her answer–that she employs a “methodology,” rather than a philosophy–was honest, accurate, and preferable. We do not want a Supreme Court of philosopher kings. And anyone who has seriously engaged in statutory interpretation–whether as a lawyer, judge, or legal scholar–will tell you that methodology is far more important than “philosophy.”

Multiple tools of statutory (or constitutional) construction may need to be employed–and if they cut in different directions, will need to be reconciled through public reasoning. This should not be a controversial proposition. At one point it certainly wasn’t. Justice White once wrote (joined by Justice O’Connor, then-Chief Justice Burger, and soon-to-be-Chief Justice Rehnquist): “[T]he circumstances under which courts should turn to legislative history and the weight to be accorded particular sources of history cannot be prescribed by inflexible canons of construction. Statutory interpretation requires a certain amount of freedom to choose the materials best suited to illuminating the meaning of the particular provisions at hand.” And certainly, as tools, text and original public meaning are often indispensable in statutory interpretation–which Judge Jackson acknowledged.

In contrast, as pop-judicial “philosophies,” textualism and originalism can be wooden, incoherent and inconsistent doctrines (just ask an “originalist” to square the modern First Amendment with the Alien and Sedition Acts of 1798). Puritanical adherence to textualism and originalism is pursuit of a fools’ gold: they glitter on first impression but lose their luster under any serious scrutiny. Justice White (and two chief justices of the Supreme Court) might have agreed: “I do not mean to endorse the simplistic view that the words printed in the United States Code can answer all questions regarding the meaning of statutes.”

More is needed to say what the law is: context, history, intent, meaning, and other tools employed by the common-law methodology that sits at the heart of our judicial system. Generations of common-law jurists, at every level of the judiciary, have employed judicial methodologies to choose the materials best suited to getting to the right answer for any particular issue at hand. That is good judging. That Judge Jackson recognizes this nuance will enhance the Court.

But nuance isn't an effective counterweight in the high-stakes drama of confirmation hearings and constitutional cases. “Methodology” lacks an “ism.” It’s not sexy. No one is writing about whether “methodology” is dead or undergoing a revival. The progressive legal community bears some responsibility for this: We haven’t created the space and public narrative of respect for the complexity of common-law judging. Into that vacuum, conservative media outlets and pundits decried Judge Jackson’s response because Americans supposedly “want” originalism, or textualism, or constitutionalism in their judges.

I don’t believe that's true; the public is just starved for choice. Progressive lawyers, academics, and activists need to help identify and strengthen a public counterweight to conservative pop-judicial “philosophies.” Judge Jackson’s confirmation hearings show just how far behind we are in the battle for the popular narrative. Let’s figure out how to catch up.

Conor Tucker (he/him) is an appellate litigator and a board member of the American Constitution Society’s Los Angeles Lawyers’ Chapter. Views expressed here are his alone and do not necessarily reflect those of his firm, his clients, or any organization to which he is a part.

Defending Democracy Starts at Home

Yesterday, when the House Select Committee on January 6th recommended criminal contempt charges for two more Trump advisors and castigated the Department of Justice for not pursuing criminal charges against former Trump Chief of Staff Mark Meadows, the Committee used its collective voice to urge leaders to marshal the same courage they are illustrating standing up for Ukrainian democracy to protect American democracy here at home. But will they listen?

The coordination amongst democracies to push back against Russia’s premediated and unprovoked invasion into Ukraine is astounding in its speed and effect, marshalling far-reaching economic sanctions designed to cripple the Russian economy and overhauling historic policies related to non-intervention.

Domestically, Russia’s military invasion is proving a unifying topic. President Biden found rare bipartisan approval in his State of the Union when he labeled Putin as a “dictator” and argued that “in the battle between democracy and autocracy, democracies are rising to the moment.”

Yet, when it comes to the democracy crisis here at home, there is no bipartisan consensus. This dichotomy is a tell-tale sign that Republican opposition to Russian aggression isn’t about protecting democracy, but about protecting geopolitical power. The House Select Committee on January 6th is case and point.

Since its establishment in July, the House Select Committee on January 6th has engaged in a deliberate investigation to understand what happened in the days, weeks, and hours before the January 6th attack on the U.S. Capitol.

The Committee has interviewed more than 300 witnesses, reviewed more than 30,000 documents, and followed-up on more than 250 substantive tips on their tip-line. It has also issued more than 52 subpoenas for records and testimony, including to high-ranking officials in former President Trump’s inner circle like Mark Meadows and Steve Bannon and has made recommendations to the Department of Justice to pursue criminal contempt charges against five former Trump administration officials for their defiance of those subpoenas.

Through their investigation, the Committee has made eye-dropping discoveries – including the existence of a conspiratorial PowerPoint offering suggestions for how Trump could overturn the 2020 election and declare a national emergency to stay in power and text messages that were exchanged between Supreme Court Justice Clarence Thomas’ wife, Ginni Thomas, and White House Chief of Staff Mark Meadows urging insurrection.

Although we haven’t seen all the evidence they’ve amassed, what we have seen is very troubling. So troubling, that earlier this month the Committee alleged in a court filing that President Donald Trump and his right-wing lawyer John Eastman were part of a “criminal conspiracy” to overturn the 2020 election.

These claims are chilling. Yet, there continues to be concerted efforts to downplay their severity and undermine the Committee’s work. Last month, the Republican Party censured the Committee’s two republican members, Representatives Liz Cheney and Adam Kinzinger, for their role investigating the January 6th attack, going on to characterize the January 6th riot as “legitimate political discourse.”

Efforts to stall the Committee’s work are also playing out in the courtroom. Earlier this month, the Republic National Committee filed a lawsuit, trying to stop the Committee from accessing donor data from the software company Salesforce, information the Committee argues is necessary to understand how the Trump campaign spread misinformation about the 2020 election and fueled violence that led to the U.S. Capitol attack.

This lawsuit is indicative of long-running attempts to use the courts to undermine the Committee’s work and whitewash the violence that we all saw on national television on January 6th. Unfortunately, these lawsuits have even found receptive ears in the judiciary. Take Justice Clarence Thomas. Earlier this year he was the lone vote in the Supreme Court trying to block the Committee from accessing pertinent records concerning the January 6th attack on the Capitol – records that we now know implicated his wife’s culpability.

What these leaders slamming the January 6th Committee’s work don’t seem to understand however is that the fate of American democracy and the fate of Ukrainian democracy are intricately interwoven.

Authoritarian countries, like Russia, have worked for years to sow chaos and undermine confidence in democratic elections across the globe because they knew it would advance their geopolitical aims.

In 2016, Russia meddled in our presidential elections. In 2020, Iran sent intimidating emails to Florida democrats purporting to be from the white-nationalist group the Proud Boys, the same group that played a leading role in the attack on the U.S. Capitol. And, it was Russian actors who claimed that ANTIFA members disguised as Trump supporters were the ones to storm the Capitol.

These do not equate to the gruesome military intervention Ukraine is suffering at Vladmir Putin’s hands. But the goals are not dissimilar, focused on overthrowing democracy, whether by external invasion or internal discord. If our leaders don’t take steps to support the January 6th Committee’s work and isolate those who refuse to cooperate with their investigations then not only are they playing right into Putin’s hands, but they are showing that regardless of their professed support for Ukraine, they really don’t care about democracy after all.