New Brain Science Shows Future Dangerousness Cannot Be Predicted in Defendants Under 21

By Dr. Adriana Galván, Dr. Terrie Moffitt, and Dr. Russell Poldrack

Almost three decades have passed since 1993, when Billy Joe Wardlow, who was 18 years old with no prior history of violence conviction, killed Carl Cole in a burglary gone wrong. On July 8, Texas plans to execute him unless the United States Supreme Court intervenes. When Billy went to trial in 1995, Texas law directed that the jury could only sentence a person to death if they did something that we now know to be scientifically impossible: determine that Billy would forever pose a danger to others, even if he never stepped foot outside prison walls.

But in light of what science has now shown about the developing brain, there is a broad consensus in the scientific community that, at the present time, it is impossible to predict whether an 18-year-old‹even one that has committed an act of deadly violence‹is likely to commit acts of violence as a mature adult, or in the words of the Texas statute, pose a ³continuing threat to society.². Therefore, the Texas statute under which Mr. Wardlow was sentenced to death turned on a determination that cannot be made in any objectively reliable or scientific manner.

New technology, and especially brain imaging technology, allows us to study changes in the developing brain, which in turn permits better understanding of the physiological underpinnings for the emotional reactivity and risky decision-making that are characteristic of young people. In particular, our understanding of ³emerging adulthood²‹loosely defined as the teenage years through the early 20s‹has undergone a complete evolution, and there is widespread agreement in the scientific community: the brains of emerging adults are undergoing ongoing maturation in fundamental ways related to emotional regulation, decision-making, and risk-evaluation, even though people in this age range may look (and sometimes act) like adults.

Most importantly for Billy Wardlow is the simple fact that how a person behaves in their teens and early twenties has very limited predictive value for how they will behave once their brain is mature. Almost all adolescents and emerging adults who engage in antisocial or violent conduct desist as a byproduct of the maturation process. Between 25 and 50% of young people who engage in criminal conduct are ³instantaneous desisters,² meaning their first offense is also their last, and the percentage of juvenile offenders who desist from crime by their mid-20s ranges from 85 to 90%, regardless of offense type. Ultimately, of the many young people who engage in crime, no more than 6% are ³lifecourse-persistent offenders² according to co-author of this piece, psychologist Terrie Moffit. And although we can be sure that some young people will remain dangerous, the problem for the criminal-legal system is that there is no way for courts to predict which particular young individuals will fall into that category.

Recent, important neuroimaging studies help explain why. The prefrontal cortex‹an area of the brain associated with reasoning and executive function‹remains developmentally immature until the mid-20s, while at the same time, the brain¹s reward centers are relatively more responsive. Specifically, between early adolescence and emerging adulthood, the ventral striatum within the basal ganglia matures in a way that promotes reward- and sensation-seeking behavior, while developments in the amygdala elevate the brain¹s sensitivity to emotional triggers. At the same time, transformations in the prefrontal cortex and its communication circuitry radically alter the ability of a young person¹s brain to regulate emotions and decision-making. Imaging studies confirm that the development of the function and wiring of the prefrontal cortex develops throughout emerging adulthood, as the brain fine-tunes connections within and between the prefrontal cortex and the basal ganglia.

The results for behavior will be familiar to any parent of a college student: adolescents and emerging adults tend to be more susceptible to emotional reactions and more prone to make impulsive choices‹even when they know better. Some may also be less likely than adults to envision the future and apprehend the consequences of their actions. And importantly, emerging adults are uniquely susceptible to peer influence, and especially when it concerns risky behavior. For these reasons, many types of risky behavior‹for example, binge drinking, criminal conduct, and drug use‹peak in the early- to mid-20s. It is exactly these tendencies that have likely led to noncompliance with pandemic directives and the recent increase in COVID-19 cases among young adults.

What Billy¹s jury in Texas was asked to do in 1995‹predict whether an 18-year-old would be dangerous in the future‹was not possible with any known technology or methodology in existence at the time or available today. It may in fact never be possible, because the human brain is simply not finished growing after 18 years of development. There is no scientific basis from which anyone, the leading scientists in the world included, can predict whether any given adolescent or emerging adult will pose danger years down the road. We hope that the Supreme Court soon recognizes this fact too.

Dr. Adrianna Galván is a Professor of Psychology at the University of California, Los Angeles and the Jeffrey Wenzel Term Chair in Behavioral Neuroscience, and author of ³The Neuroscience of Adolescence² (Cambridge University Press). Dr. Terrie E. Moffitt is Nannerl O. Keohane University Professor of Psychology and Neuroscience at Duke University, and author of ³The Origins of You: How Childhood Shapes Later Life² (Harvard University Press). Dr. Russell Poldrack is the Albert Ray Lang Professor in the Department of Psychology and Professor (by courtesy) of Computer Science at Stanford University and author of ³The New Mind Readers: What Neuroimaging Can and Cannot Reveal about Our Thoughts² (Princeton University Press). Drs. Galván, Moffitt, and Poldrack are signatories to an amicus brief filed in Wardlow¹s case currently pending in the Supreme Court of the United States.

Bostock: A Statutory Super-Precedent for Sex and Gender Minorities

The late Aimee Stephens, Plaintiff in Bostock

The Supreme Court’s 6-3 decision in Bostock v. Clayton County, Georgia found that Title VII’s bar to employment discrimination against an individual “because of such individual’s sex” protects gay men, lesbians, and transgender persons. The Court held that Title VII’s text applies whenever an employer considers the individual’s sex as a motivating factor in deciding to fire or refuse to hire that person. If an employer fires a transgender woman such as the late Aimee Stephens because her sex does not match that assigned at birth, the adverse action is, legally, “because of” her “sex.” Likewise, if an employer fires a gay man such as Gerald Bostock because he dates other men, but would not fire a woman for dating the same men, the adverse action is, legally, because of his male “sex.”

Because the Court’s reasoning was sweeping and normatively powerful, Bostock will be a foundational decision with broad ramifications for a wide array of Americans. Indeed, we expect it to be a super precedent, a judicial landmark debated, celebrated, taught to law students, and interpreted for years to come. There are, however, some likely applications that we can identify right now.

To begin with, employees protected by this ruling are not just lesbians, gay men, and transgender persons, but also other sex and gender minorities. Intersex persons, with both male and female biological markers, ought to enjoy job protections now, as firing them for their biological sex ambiguity would fall under the Court’s rationale that an employer who considers an employee’s sex in firing her/him/them has discriminated against that individual “because of such individual’s sex,” contrary to Title VII.

Participants at the Fourth International Intersex Forum, April 2017

Gender-nonconforming persons—the “effeminate” man, the “macho” woman—are also clearly protected, as the Court had said when it addressed the sex-stereotyping claims of Ann Hopkins 31 years ago. Four plurality Justices and one concurring Justice were in agreement that (as the concurring Justice put it) “failure to conform to [sex] stereotypes” is discrimination because of sex under Title VII. Because Justice Gorsuch’s Bostock opinion cited Price Waterhouse v. Hopkins, and because neither dissenting opinion questioned its authority, we believe that Hopkins’ gender-stereotyping rule is entrenched in Title VII law.

None of the dueling Bostock opinions revealed an awareness of the many nonbinary and genderqueer Americans in schools and workplaces—but in our view, they are likewise protected under Title VII. The Court’s rule that an employer violates Title VII when it “intentionally fires an individual employee based in part on sex” applies to nonbinary persons whose sex identity is neither male nor female, is ambiguous, or is evolving, for the same reason that it applied to Aimee Stephens: the employer is making a sex-based characterization and imposing its norm and a rigid and unwelcome sex identity on the employee.

The Identity Project, photos of our diversity by Sarah Deragon

Ironically, the sex or gender minority that demographers tell us contains the most Americans was completely unmentioned in the dozens of pages of analysis by the three opinions: bisexuals. Bostock is yet another example of what Kenji Yoshino calls bisexual erasure. They get left out of the discussion, and a lot of people don’t even know how to talk about bisexuality. This is an important issue, as bisexual workers deserve fair treatment—yet a 2016 study found they make, on average, more than ten percent less money for comparable work than straight or gay employees.

How will judges apply Bostock to bisexual employees? Employers have argued that the employee’s sex does not matter when she/he/they are attracted to both men and women. But bisexuals are similar to nonbinary persons in having a “sex” identity that defies gender pigeonholing and are like transgender persons when they are penalized for flipping the “sex” of their romantic objects. For many bisexual employees, it is their same-sex attraction that triggers workplace harassment or other penalties.

The legal consequences of Bostock are broad as well as deep, because there are many federal statutes—more than 100 listed in Appendix B to Justice Alito’s dissent—that prohibit discrimination “because of” or “on the basis of” sex without explicitly referencing sexual orientation or gender identity. The majority opinion did not dispute that its reasoning gives a boost to claims by sex and gender minorities—lesbians, gay men, transgender and nonbinary persons, intersex individuals, and perhaps bisexuals—that those laws (and state laws with similar language) protect them against discrimination.

Important laws barring discrimination because of sex include the Fair Housing Act of 1968, as amended in 1974, 42 U.S.C. §§ 3604-3606, 12 U.S.C. § 4545(1); the Public Works and Economic Development Act Amendments of 1971, 42 U.S.C. § 3123; Title IX of the Equal Education Amendments of 1972, 20 U.S.C. § 1681; the Equal Credit Opportunity Act of 1974, 15 U.S.C. § 1691(a)(1), (d); the Local Public Works (etc.) Act of 1976, 42 U.S.C. § 6709; and the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601(a)(6), (b)(1), as well as dozens of other federal laws.

Especially important is the likely interpretation of Title IX to protect LGBTQI+ teachers and students against harassment and other forms of discrimination by schools receiving federal funds. Some such students and teachers have already been successful in Title IX lawsuits, based upon a Hopkins-like claim of gender-stereotyping. Judges should immediately carry over the Bostock reasoning into Title IX.

Section 1557 of the Affordable Care Act of 2010 protects people against discrimination on the basis of sex in any health program or activity any part of which received federal funds, all health programs or activities administered by HHS, and health insurance marketplaces and all plans offered by issuers that participate in those marketplaces. Just a few days before Bostock, the Trump Administration’s HHS revoked an Obama Administration rule interpreting the ACA’s sex discrimination provision to bar discrimination based on sex-stereotyping, gender identity, and sexual orientation, but did not insert a definition of its own.

Following the lead of HRC’s Charlotte Clymer, we objected to the administration’s harsh and premature action, which introduced more turmoil into health care in this country. In light of Bostock, the Obama Administration’s rule applying the ACA to a broad range of sex and gender minorities is probably required as a matter of law—whatever the HHS position might be.

Finally, Bostock’s statutory ruling will have constitutional echoes. The Supreme Court has long interpreted the Fifth and Fourteenth Amendments to subject government sex discriminations to heightened scrutiny. The Court has not said exactly what level of scrutiny should apply to government action discriminating against sex and gender minorities, but after Bostock the case for heightened scrutiny is compelling. Thus, the administration’s effort to exclude transgender persons from service in the armed forces ought to be subjected to constitutional heightened scrutiny. The government ought to explain and document why it is so important to exclude these loyal Americans.

There are many explicit discriminations against sex and gender minorities in state and local governments. Although negated by a judicially approved consent agreement, North Carolina’s notorious “bathroom law” requires transgender persons to use only those bathrooms allowed for their sex assigned at birth—a requirement that would inevitably subject them to violence and harassment. A 2016 law in Mississippi authorizes and encourages employers and schools to limit restrooms in this manner. After Bostock, the constitutional case against these regulatory sex-based restrictions is much stronger.

Many discriminatory rules and regulations involve public schools, including laws or policies barring any kind of discussion or tolerance of homosexuality in public schools. Utah and North Carolina recently repealed their “no promo homo” laws, but Alabama still requires public schools to teach that “homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state.” In other states, school boards adopt similar postures and discipline teachers and counselors who show the least amount of compassion for sex and gender minorities. Bostock provides a starting point for constitutional challenges, such as the recently settled litigation over anti-gay sex education in South Carolina.

Sex and gender minorities are valuable employees all over America. Lesbians, gay men, bisexuals, transgender and intersex persons, nonbinary and genderqueer people should not be able to get married on Sunday and face losing their jobs on Monday. Bostock protects these workers against sexual harassment, bullying and name-calling, refusals to hire, discharges, failures to promote, and lower salaries and wages. The Supreme Court’s landmark decision will have reverberations in the workplace, in schools, and elsewhere in society and government for years to come.

___________

Eskridge is a professor at Yale Law, Riano is the Executive Director of the Center for Civic Education and a lecturer at Columbia. Their forthcoming book is Marriage Equality: From Outlaws to In-Laws (Yale Press Aug. 2020).

Seila Law v. Consumer Financial Protection Bureau: Score One for The Unitary Executive Theory

In SEILA LAW v. CONSUMER FINANCIAL PROTECTION BUREAU, No. 19-7, the Supreme Court, in an opinion written by Chief Justice John Roberts, held that the restrictions on the power of the President to remove the director of the CFPB are unconstitutional. The outcome, including the 5-4 vote on the merits, was expected, and was a major victory for those who support the “unitary executive theory” of the Constitution under which Congress has very limited powers to check the President over federal agencies. As the same time, with only Justices Clarence Thomas and Neil Gorsuch dissenting, the Court held that the unconstitutional limits on removal were severable from the rest of the law, so that the CFPB will continue to operate, but with the director subject to removal at will by the President.

The battle on the merits can be briefly, if somewhat unfairly, described as a difference in understanding of how the Constitution allocates power over the various departments and agencies that Congress creates. Supporters of the Unitary Executive, which include The Chief Justice, Justices Samuel Alito, and Brett Kavanaugh, as well Justices Thomas and Gorsuch, contend that the Framers intended that the President have wide-ranging control over the officers in the executive branch that wield significant power, which includes the power to fire those officers at will, unlike the statute that created the CFPB, under which the director could only be removed for “inefficiency, neglect of duty, or malfeasance in office.” On the other hand, Justice Elena Kagan, writing for herself and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, concluded that the Constitution allows the political branches to enact laws creating various degrees of agency independence and presidential control and that the Constitution would invalidate restrictions on removal only when the law applied to officers like the Secretary of State and the Secretary of Defense, who directly advise and assist the President in carrying out his constitutional functions.

The 20 pages that the Chief Justice devoted to the merits and the 39 pages of the dissent both examined the same constitutional history, reviewed the so-called Decision of 1789, in which the First Congress grappled with the issue of removal and ultimately did not decide it, the history of federal agencies in which Congress imposed removal conditions on the President, and a series of cases dating back to 1926, in which the Court had ruled on a variety of manifestations of the removal issue. Despite the common data base, the two opinions fundamentally disagreed over whether the default position favors the President or the Congress, with the President prevailing here, where the agency is headed by a single director, instead of a multi-member body, like the Federal Trade Commission, whose identical removal restrictions were upheld in Humphrey’s Executor v. United States, 295 U. S. 602 (1935). The Court declined “to extend these precedents to a new configuration: an independent agency that wields significant executive power and is run by a single individual who cannot be removed by the President unless certain statutory criteria are met.” There is nether time nor space to reprise that debate, except to note that in my view the dissent has the better of the argument. Before discussing the certainty of future litigation over the restrictions on at will removal under the statutes governing many other agencies, as well as the impact of the severability ruling in this case, a few words are in order on the justiciability issues that the Chief Justice (but not the dissent) addressed.

Before reaching the merits, the Chief Justice responded to several arguments made by the Court-appointed amicus (Paul Clement), the House of Representatives (which defended the law, while the Senate sat on the sidelines), and me in my amicus brief. I will discuss only two: standing and lack of a case or controversy. The petitioner is a private law firm that refused to comply with the CFPB’s demand for information relating to its debt collection practices. When it was sued, among its defenses was that the law under which the demand was made was unconstitutional because the President could not fire the director of the CFPB at will – even though neither the President when the demand was made, nor the current President, had ever attempted to fire either the prior or current director. In response to the defense of a lack of standing, the law firm alleged no more than it had the right to have an agency whose head was accountable to the President, but made no showing of any further injury, nor did it explain what the connection might be between the injury to the President and a right to refuse to respond to the CFPB’s information demand.

In rejecting the standing objection, the majority cited several cases including Free Enterprise Fund v. Public Company Accounting Oversight Board and Morrison v. Olson in which a private party had objected to similar restrictions on removal and the Court had decided those cases on the merits. However, in none of those cases was the standing issue raised, let alone directly decided. In addition, in all of those cases, there was also a challenge to the method by which the officers in question were appointed, which explains why the standing issue may not have been raised. I continue to believe that the Seila firm had no standing to raise a claim of injury to the interests of the President and that the decision to the contrary is inconsistent with the Court’s generally very stringent standing decisions, mostly recently in Thole v. U.S. Bank, N.A. No,17-1712 June 1, 2020. See also Alan B. Morrison, Standing Is Jurisdictional Requirement – Unless the Government Wants the Merits Decided. Indeed, the same day that this case was decided, Justices Thomas and Gorsuch, in separate dissenting opinions in June Medical Services LLC. v. Russo, No, 18-1323, concluded that abortion facilities lacked standing to sue to protect the ability of their patients to obtain an abortion without undue restrictions.

Going forward, the standing ruling is going to be quite significant. Although the holding in Seila Law applies only to the CFPB, there is much in the Chief Justice’s opinion that would support its application to the FTC and the many other agencies – ranging from the National Labor Relations Board, to the Federal Communications Commission, to the Federal Election Commission, and the Federal Reserve Board, all of whom have more than one member and all of whom have restrictions on removal. Indeed, the opinion of Justice Thomas, in which Justice Gorsuch concurred, took the next step:

But with today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent. Concurring opinion at 1.

To be sure, there are plenty of quotes from the Chief Justice’s opinion that would support limiting it to agencies with a single head, and the four dissenters would surely join in that result. I do not seek to predict how such a challenge would come out, but I can confidently predict that there will be multiple challenges to adverse decisions of every one of these agencies with removal limitations and they can – as Seila Law did – raise them in every case because the standing requirement has been effectively eliminated. Indeed, a lawyer who failed to raise the issue might well be guilty of malpractice.

There is a possible way out of these agencies having to defend their removal restrictions on the merits. In the final section of his opinion, the Chief Justice held that the unconstitutional removal restrictions did not bring down the whole CFPB statute with it. Opinion 30-36. If it had, petitioner would have been entitled to have the proceeding dismissed, which is what Justices Thomas and Gorsuch would have done. Concurring Opinion at 24: ‘I would resolve this case by simply denying the CFPB’s petition to enforce the civil investigative demand.” Suppose in the next case in which this issue is raised, the agency argues, pointing to the final section of the Chief Justice’s opinion, and also to the many years that Congress has supported this agency. It would then argue that, even if the removal restrictions are unconstitutional, they are severable and therefore the plaintiff will gain nothing from the ruling on the removal issue, and there is no need for the court to rule on the constitutional question.[1]

The other justiciability argument was that there was no case or controversy because the petitioner and the CFPB agreed that the removal restrictions are unconstitutional. The Court attempted to cure this by the appointment of an amicus to defend the statute. The issue was whether this eliminated the problem, and the majority agreed that the Court had succeeded. Opinion at 10-11. For that conclusion it found support in United States v. Windsor, 570 U. S. 744 (2013), in which the House of Representatives as amicus supported the Defense of Marriage Act which the Obama Administration declined to defend, just as the Trump Administration refused to defend the CFPB law here. The Chief Justice failed to note that he joined the dissent of Justice Antonin Scalia (with Justice Thomas) that would have dismissed that case for want of jurisdiction, id. at 778, or that only Justice Alito found the presence of an amicus to be decisive there. Id. at 803-807.

In addition, if the petition in Windsor had been dismissed, it would have been almost impossible for another case to make it to the Court as long as the United States agreed that DOMA was unconstitutional. Coupled with the fact that DOMA impacted over 1100 statutes in all three branches of the federal government, the prudential considerations were very much in favor of deciding the issue then, as the Court observed. Id. at 759-763. But in this case, there would be no impediment to having the constitutionality of the removal restrictions adjudicated. All this President (or any future President) would have to do is fire the director, and if a lawsuit followed, the Court could decide the case in a true adversary context. In fact, this President had ten months to fire Richard Cordray, the former director, but he did not do so. This is not an argument that a presidential firing is necessarily the only way for this issue to be decided, but only that there was no reason to reach out to decide a constitutional issue when the parties did not disagree and when principles of constitutional avoidance pushed in the opposite direction.

There is, of course, another way beyond a lawsuit like this that could bring to the fore the issue of how far this ruling extends. The President could simply start firing officials on multi-member bodies whose rulings or policies he dislikes, perhaps beginning with the chair of the Federal Reserve, whom the President believes is implementing policies that are not sufficiently favorable to his re-election. To date, he has been told that such a firing is unauthorized, but after today, even a cautious lawyer would have to agree that the issue is unsettled. And if such a firing took place, and the chairman sued to keep his job and/or for back pay, it would be just one more lawsuit that might not be resolved until this President is no longer in office.

In a prior case, this Administration took the position that administrative law judges at the SEC could also be removed at will, but the Court declined to reach that issue. Lucia v. SEC, 138 S. Ct. 2044, 2050 n. 1 (2018). That issue is certain to surface again, either by an attempt to remove an ALJ, without cause, or by a challenge similar to that in this case. In addition, the majority noted that the Social Security Administration now has a single administrator with for-cause removal protections, although it suggested that the agency may perform functions that may distinguish it from the CFPB. Opinion at 20. Given all the disgruntled applicants for disability benefits, this looks like another fertile ground for litigation.

Finally, there is a small irony in this victory for this President. If he loses his re-election bid, his successor will be able to remove the CFPB director immediately, instead of having to wait until 2023 when the incumbent’s five-year term will be over. But for those who believe that the Constitution does not preclude Congress from having the right to decide that some agencies should have some measure of independence from the President in order to carry out their statutory mandates, Seila Law is a potentially huge setback, depending on whether the Court limits it to agencies with a single director, like the CFPB, or extends it broadly by overruling Humphrey’s Executor.

Mr. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School, where he teaches civil procedure and constitutional law. He filed an amicus brief in the Seila law case, arguing that the Court should not reach the merits of the constitutional issue presented.

[1] It is arguable that the ability of an agency to succeed on this approach depends on a subsequent ratification by an officer who is subject to at will removal, which had been made in Seila Law, but which is not likely to be available in future cases.

DACA: The Supreme Court’s Glance Over a Glaring Equal Protection Problem

David is a third-year law student at the Indiana University Maurer School of Law and previously served in the Obama Administration at the White House and U.S. Department of Homeland Security.

Many people will remember where they were on Thursday, June 18, 2020, when they received the news about the fate of DACA—the program that grants lawful presence and work authorization for two-year increments to undocumented individuals who arrived in the United States as minors. That day, the Supreme Court ruled 5-4 that the Trump administration’s method of rescinding the program was unlawful under the Administrative Procedure Act[1]. But while DACA recipients across the nation rejoiced because they were temporarily safe, there was still an abysmal feeling that lingered; the Court flat out rejected the merits of the DACA recipients’ equal protection claim.

I worked at United States Citizenship and Immigration Services (USCIS), the agency that administers DACA, during the Obama Administration—and I saw how much joy the program brought DACA recipients. But at the same time, the politicization of the program made these individuals carry on through life with a measured optimism because they knew the program’s destiny rested in the hands of whoever occupied the White House. Near the end of President Obama’s last term, there were about 700,000 people enrolled in the program—and all 700,0000 had reason to fear for the program’s fortune under the incoming Trump administration. Their fears were valid. On September 5, 2017, then-Attorney General Jeff Sessions announced the end of DACA as they knew it.

While last week’s victory saved the program, for now, I am unsatisfied with the Court’s view that the termination of the program did not violate the Equal Protection Clause. The majority allocated three pages out the 74-page opinion to the DACA recipients’ equal protection argument—which, I believe, spoke volumes of the majority’s obliviousness to the hard reality that President Trump’s immigration policy is discriminatory, or as Justice Sotomayor stated in her dissent, “contaminated by impermissible discriminatory animus.”[2] The underlying strategy of this administration’s immigration policy has been to create an immigration system that discriminates based on national origin instead of one that welcomes those who wish to contribute to the fabric of the United States—and the decision to end DACA was a key part of this plan.

The Court laid out a simple rule to successfully plead animus: “a plaintiff must raise a plausible inference that an ‘invidious discriminatory purpose was a motivating factor’ in the relevant decision.”[3] The plurality refused to conclude that discrimination played a role in the administration’s decision to end DACA[4]. The DACA recipients alleged, and to no avail, that animus towards them was “evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.”[5]

First, the majority argued that the rescission did not have disparate impact on Latinos from Mexico because “Latinos make up a large share of the unauthorized alien population, [and] one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.”[6] I disagree. As Justice Sotomayor stated in her dissent the “executive decision disproportionately harm[ed] the same racial group that the President branded as less desirable mere months earlier.” Further, it is true Latinos from Mexico make up a large portion of the undocumented community in the United States, about 10.5 million people[7] , but this does not make them impervious to discrimination. This population of people has felt the brunt of President Trump’s hostile immigration agenda—family separation at the U.S.-Mexico border, remain in Mexico policy, increased Immigration and Customs Enforcement (ICE) presence in majority Latino neighborhoods, and explicit verbal attacks from the President, to name a few. So, placing a spotlight on the sheer number of Latinos distracts from the point that they still experience unfavorable, disparate treatment irrespective of how many of them are in the United States.

Second, there was an unusual history behind the rescission of DACA—and it does not take an expert political observer to notice. The Court’s majority concluded that the termination of DACA “was a natural response”[8] based on the administration’s interpretation of a similar program’s, Deferred Action for Parents of Americans (DAPA), legal defects. And Justice Sotomayor retorted that “[t]he abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision.”[9] I agree. If one puts the DACA rescission within context of the of President Trump’s immigration actions, there is an overt trend: a clear intent on limiting immigration from destitute countries with majority black and brown immigrants. For example, for pure political reasons, the administration unsuccessfully attempted to end[10] Temporary Protected Status (TPS) for Haiti, El Salvador, and Honduras. If successful, this action would have facilitated the deportation of 400,000 TPS recipients who sought refuge in the United States from dire country conditions like earthquakes and hurricanes. Additionally, the implementation of the new public charge rule was devised to disqualify low-income immigrants who use public benefits—like SNAP and Medicaid—from obtaining permanent status in the United States. And the planned termination of DACA was meant to aid a campaign promise[11] to remove a large portion of Mexican nationals from the United States. Thus, taken the administration’s immigration agenda altogether, the ending of DACA fit squarely within the plan to curtail immigration from specified individuals instead of a “natural response to a newly identified problem.”

Last, if the Court needed a smoking gun for “contemporary statements”[12] that displayed the President’s animus towards immigrants, there were plenty to choose from. And if any of his immigration acts were legitimate, they were clouded by his past remarks. As Justice Sotomayor said, the majority should not have “disregard[ed] any of the campaign statements as remote in time from later-enacted policies.”[13] Throughout his presidential campaign announcement speech, then-candidate Donald Trump proclaimed that he would “make America great again”[14] by ushering in reforms that would curb immigration from Mexico. In regard to legal Mexican migration, President Trump stated: “They're sending people that have lots of problems . . . they're bringing drugs . . . they're bringing crime . . . they're rapists.”[15] And his widely-known public remark, “Why do we have these people from all these sh*thole countries here? We should have more people from places like Norway,”[16] should have put the majority on notice that he favored an immigration system that discriminates based on national origin. But that is not all. During the President’s past remarks on U.S. Mexico border policy, he exclaimed, “You wouldn’t believe how bad these people are. These aren’t people, these are animals, and we’re taking them out of the country at a level and at a rate that’s never happened before.”[17] These statements show his clear pattern of thinking that some immigrants are not worthy to come to the United States, and the administration should use its capabilities to remove them. The majority had a laundry list of statements from President Trump that showed a clear inference of discriminatory motive.

Even with a great result last week, the Court’s blind eye to motivations behind President Trump’s immigration agenda is cause for concern. The Supreme Court’s failure to realize that the Trump administration’s attempt to phase out DACA was motivated by animus rather than a valid national interest will cast a permanent blemish on the Court’s legacy. Chief Justice Roberts famously stated: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[18] But this can never be true if the Court continues to sanction blatant discriminatory acts that embolden government officials to diminish opportunities for people because of their national origin.

[1] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[2] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[3] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020). (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977).

[4] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[5] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[6] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[7] https://www.brookings.edu/policy2020/votervital/how-many-undocumented-immigrants-are-in-th.e-united-states-and-who-are-they/

[8] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[9] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[10] https://www.nbcnews.com/news/latino/trump-s-timing-ending-tps-immigrant-protections-was-tied-2020-n1078751

[11] https://time.com/3923128/donald-trump-announcement-speech/

[12] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[13] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

[14] https://time.com/3923128/donald-trump-announcement-speech/

[15] https://time.com/3923128/donald-trump-announcement-speech/

[16] https://www.vox.com/2018/1/11/16880750/trump-immigrants-shithole-countries-norway

[17] https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrants-animals.html

[18] Dep't of Homeland Sec. v. Regents of the Univ. of California, No. 18–587 (S. Ct. June 18, 2020).

June Medical Is the New Casey

The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo. At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.

To understand what this means, let me provide a brief background on abortion and the Supreme Court. As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. Wade. Roe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.

What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate. According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine. An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden. Outlawing a safer procedure? No undue burden. Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.

Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion. But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder. (These laws even have a nickname--TRAP laws: Targeted Regulation of Abortion Providers.)

Take the law at issue in Whole Women’s Health, which required that abortion providers have admitting privileges at hospitals within thirty miles of their clinic. By forcing over half the abortion clinics to shut their doors, this law (which also required clinics to meet the standard for ambulatory surgical centers) created a serious obstacle for women seeking abortions. At the same time, Texas offered zero evidence that mandating admitting privileges at nearby hospitals had made any woman safer. To start, abortion was such a safe procedure, hospitals were almost never required. On the rare occasion the need did arise, it was usually when women were already back home, which meant they would go to the hospital near them, not a hospital near the clinic. Moreover, doctors who performed abortions were already required to have a patient “transfer” arrangement with a physician with admitting privileges if they did not have admitting privileges themselves.

Louisiana passed the same requirement, and it was Louisiana’s admitting privileges law that was at issue in June Medical—and struck down in June Medical. In doing so, June Medical reaffirmed that women’s right to abortion was protected by the U.S. Constitution, just as in Casey. There is no doubt a great relief to women and reproductive rights advocate everywhere.

However, also similar to Casey, June Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not. Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like Casey, June Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.

The Chief Justice’s invocation of stare decisis leads to both good news and bad news. Applying it to Louisiana’s admitting privileges law required the Court to strike it down. Applying it to Whole Woman’s Health, however, led Chief Justice to reject its heightened protection for abortion rights. “Under principles of stare decision, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial burden requires the same determinations about Louisiana’s law. Under those same principles, I would adhere to the holding in Casey, requiring a substantial obstacle before striking down an abortion regulation.”

Black Lives Matter to Obergefell

The authors are the co-authors of the forthcoming Marriage Equality: From Outlaws to In-Laws (Yale Press July/Aug. 2020).

On June 26, 2015, five years ago today, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment requires states to recognize marriage equality for LGBTQ+ persons. The vast literature celebrating Obergefell omits an important element of the narrative: Black Lives were critical to achieving marriage equality in America. In persuasively exposing and protesting police brutality against Black and Indigenous people of color, the Black Lives Matter movement has awakened the nation to structural racism in America. That includes the erasure and minimization of Black influence in other social and legal movements.

African Americans were plaintiffs in Obergefell—indeed, the first federal challenge to a same-sex marriage exclusion was brought 44 years earlier by two Black women, Donna Burkett and Manonia Evans. In subsequent marriage equality litigation, Black Judges Mattered. Among those key judicial voices were Massachusetts Supreme Court Justice Roderick Ireland and federal Judges Jerome Holmes (Tenth Circuit), Roger Gregory (Fourth Circuit), and Arenda Wright Allen (Eastern District of Virginia).

L-R: Hon. Arenda Wright Allen (Eastern District of Virginia), Alphonso David (Counsel to Governor)

Black Leaders Mattered. Alphonso David, then a senior advisor to the governor, was the critical figure in the 2011 victory of marriage equality in New York. Gary Daffin was co-chair of the Gay and Lesbian Political Caucus that saved marriage equality from political override in Massachusetts. President Barack Obama, working closely with Advisor Valerie Jarrett and Attorney General Eric Holder, sunk the Defense of Marriage Act, which had been the butt of vigorous attack from Representative John Lewis in 1996.

President Obama with Senior Advisor, Valerie Jarrett

NAACP leaders such as Julian Bond, Roslyn Brock, and Benjamin Jealous supported freedom for LGBTQ+ persons to marry. Indeed, marriage equality activists were inspired by the NAACP’s triumph in Loving v. Virginia, invalidating state bars to different-race marriages. Civil rights leaders and Inc. Fund attorneys pioneered the law reform model that LGBTQ+ activists followed.

Black Ideas Mattered. Constitutional lawsuits challenged the interconnected series of race-segregating laws known as apartheid—but the legal arm of the civil rights movement depended on the political arms to persuade Americans that skin color ought not be the basis for any legal disadvantage or segregation and that racial variation is natural and benign. Inspired by this normative vision, early “homosexual rights” activists claimed that sexual and gender variation was no less natural and benign and that the Constitution tolerates no exclusion or disadvantage based upon one’s sex-based identity. Just as the civil rights movement secured a constitutional transformation in the status and rights of African Americans between 1954 and 1967, the marriage equality movement secured a constitutional transformation in the status and rights of LGBTQ+ Americans between 1996 and 2015.

Outlaw Regime	Tolerance Regime	In-law Regime
Colored”/”Perverts” Are “Degenerate”	“Negroes”/”Homosexuals” Are “Different”	Black Is Beautiful Gay Is Good Trans Is Terrific
Sex/Race Variation Is Malignant	Sex/Race Variation Is Tolerable	Sexual/Gender/Racial Variation Is Productive
Apartheid (Segregation) Outlaws (Sodomy etc.)	Desegregation Decriminalization	Anti-Discrimination, Integration & In-Laws

Outlaw Regime	Colored”/”Perverts” Are “Degenerate”	Sex/Race Variation Is Malignant	Apartheid (Segregation) Outlaws (Sodomy etc.)
Tolerance Regime	“Negroes”/”Homosexuals” Are “Different”	Sex/Race Variation Is Tolerable	Desegregation Decriminalization
In-law Regime	Black Is Beautiful Gay Is Good Trans Is Terrific	Sexual/Gender/Racial Variation Is Productive	Anti-Discrimination, Integration & In-Laws

Additionally, Obergefell Matters to Americans of all races, sexes, ethnicities, and orientations—but less-advantaged Americans have not benefitted from the decision as much as they would benefit from other reforms. Drawing from the detailed treatment in our book, From Outlaws to In-Laws, we suggest some consequences for the decision.

1. The Importance of Same-Sex Marriage—Yet the Perseverance of Alternate Institutions.

Obergefell was a valentine to marriage as an institution of commitment and child-rearing, and as many as half a million LGBTQ+ persons have found the path to civil marriage opened by the marriage equality movement. Like Obergefell plaintiffs Brittani Henry and Brittni Rogers, many such couples are raising children. Critics’ predictions that expanding marriage would spell doom for marriage as an institution have not borne out. After a freefall in marriage rates between 1980 and 2004, civil marriage stabilized in Massachusetts after marriage equality, and in the country as a whole since 2011.

Obergefell plaintiffs Brittni Rogers and Brittani Henry

The importance of marital commitment to another person “in sickness and in health” is more important than ever during the COVID-19 pandemic. (The earlier AIDS epidemic helped jump-start the marriage equality movement.) When someone becomes ill, it is often her/his/their spouse that is able to provide care, as most COVID-19 patients rest and recover within their homes.

Yet many less-advantaged Americans do not marry. Critics rightly complain that marriage equality has left many people/families behind, but nonmarital institutions responding to gay people’s demands for relationship support, such as domestic partnerships, have survived Obergefell. Thus, Colorado in 2009 established “designated beneficiaries” for unmarried couples who wanted to take responsibility for one another’s well-being and health. Although most Colorado couples have preferred marriage, the availability of this institution is important in times of pandemic, and we urge more states to consider adopting such a law.

2. More Equal Treatment of Sex and Gender Minorities—Yet Obergefell Remains in Peril

Just as Loving helped entrench the norm that racial variation ought not be the basis for discrimination, so Obergefell advanced the norm that sexual and gender variation ought not be the basis for discrimination. Indeed, in Bostock v. Clayton County, Georgia, the Roberts Court ruled that Title VII’s bar to workplace sex discrimination protects sexual and gender minorities. The prevailing argument was one suggested by analogy with Loving and that the Justices first encountered in the marriage cases: if barring a white man from marrying a black woman is race discrimination, then barring a man from marrying a man is sex discrimination.

Yet even after Obergefell, LGBTQ+ persons have faced obstacles to equal treatment on matters of matrimony. Thus, the Supreme Court in Pavan v. Smith (2017) ruled that Arkansas’s refusal to record both lesbian spouses on a birth certificate violated Obergefell’s commitment to give same-sex couples the same “constellation of benefits that the States have linked to marriage.” Indeed, Obergefell explicitly held that Ohio had to include both male spouses on the birth certificate of the son they were adopting. That three Justices (Thomas, Alito, and Gorsuch) dissented in Pavan, a result required by stare decisis, suggests that there were in 2017 three votes to narrow, ignore, or overrule Obergefell.

In Pidgeon v. Turner, a trial judge rebuffed challenges to Houston Mayor Sylvester Turner’s order for spousal benefits to municipal employees in valid same-sex marriages. In the wake of GOP outrage, the Texas Supreme Court vacated the ruling and remanded for a reconsideration of how seriously to read Obergefell. Notwithstanding Pavan, the court said that Obergefell “did not hold that states must provide the same publicly funded benefits to all married persons.”

For a federal example, the immigration code provides that a child of a married couple is an American citizen if either spouse is a citizen and has resided for a period of time in the United States. Like Arkansas, the Trump Administration has rewritten the statute to deny citizenship to the child of a married same-sex couple where the citizen is not the biological parent. On the eve of Bostock, the Trump HHS revoked an Obama HHS rule assuring sex and gender minorities protection under the Affordable Care Act’s bar to sex discrimination in health care. Like the immigration discrimination, this issue should end up in federal court.

3. Evolution of Religion—Yet Liberty-Equality Clashes Loom

Episcopalians, Reform Jews, Quakers, Congregationalists, and many Presbyterians, Lutherans, Methodists, and Evangelicals have embraced marriage equality. Even traditionalist denominations such as the Catholic Church and the Church of Jesus Christ have rejected previous pronouncements that treated sexual and gender variation as malignant and have advocated tolerance for these minorities.

Same-sex marriage is affecting American religions, primarily as a result of pressure from its membership rather than from the government.

Ironically, both the Southern Baptist Convention, which was slow to condemn apartheid, and Black Baptist churches, which were on the front lines of the civil rights movement, have moved most cautiously. Yet an increasing number of Baptists, such as Reverend Delman Coates and Bishop Donté Hickman, have supported civil marriage equality based upon their study of Scripture.

Nonetheless, same-sex marriages have opened up new sources of conflict between religious liberty and LGBTQ+ equality. Sharonell Fulton, a foster mother in Philadelphia, is suing the city for terminating its foster care contracts with Catholic Services, which will not place with married same-sex couples. Fulton and Catholic Services argue that the government is bullying them to take actions inconsistent with their faith, hence violating the Free Exercise Clause. The Court will hear their case in the 2020 Term, and there will surely be sequels. Our view is that state and national legislators ought to work with both religious and gay rights advocates to codify Bostock and devise appropriate religious allowances that address liberty-equality clashes. Reflecting a similar impulse, the Civil Rights Act of 1964 (with religious allowances) was an essential complement to constitutional victories in court.

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