Things to read this week (3/10)
A few things that I read or put in my to-read pile last week, perhaps the beginning of a recurring feature:
I uploaded my forthcoming article in the Supreme Court Review, Fear of Balancing. Here’s the abstract:
As a new Supreme Court majority settles into a new era of constitutional adjudication, the Justices will confront important methodological questions. How are they to go about interpreting the Constitution? In the Second Amendment case of United States v. Rahimi, many of the Justices wrote separately to debate broader methodological questions about constitutional interpretation. They expressed a shared desire to turn away from judicial “balancing” of interests in adjudicating constitutional rights in favor of founding-era understandings. That is a healthy instinct, but founding-era understandings may in truth lead to balancing, so maintaining an originalist approach and an opposition to balancing is trickier than it seems. In future cases the Justices may need to resolve this tension by emphasizing the presumption of constitutionality, by making greater use of the principles of general law, or by crafting more rule-like doctrines for adjudication.
I almost wanted to write another Supreme Court Review article on the shadow-docket opinions in Labrador v. Poe, but for now I have contented myself with footnote 80:
I cannot resist observing that making use of the presumption of the constitutionality more frequently would also help the Court address another recurring problem it discussed in a slate of concurrences last year: “the best processes for analyzing likelihood of success on the merits” when considering “emergency applications in cases . . . where a party has sought to enjoin enforcement of a new state or federal law.” Labrador v. Poe, 144 S. Ct. 921, 928 (2024) (Kavanaugh, J., concurring). Justice Kavanaugh has expressed doubt about the usefulness of the maxim that courts “should simply try to ‘preserve the status quo,’” arguing that “[t]here is no good blanket answer to the question of what the status quo is. Each conception of the status quo is defensible, but there is no sound or principled reason to pick one over another.” Id. at 930. The presumption of constitutionality provides a sound and principled reason to treat newly enacted legislation as the status quo. This presumption would of course be subject to rebuttal for “plainly unconstitutional . . . laws.” Id. at 931. Whether that same presumption would apply to administrative actions is another matter.
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Also forthcoming in the Supreme Court Review is Jack Goldsmith’s The Presidency After Trump v. United States, nicely featured by Adam Liptak today in the New York Times.
Can AI Hold Office Hours?, by Ouellette, Motomura, Reinecke, and Masur. (From the abstract: “AI is not ready to start holding office hours”).
Enforcing the First Amendment in an Era of Jawboning, by Genevieve Lakier. Alarmingly timely.
The Plain Meaning Fallacy, by Bill Watson, which argues that “There are compelling reasons to enforce the Constitution’s plain—as in indisputable—original meaning. But there is little to no reason to enforce the Constitution’s less than plain original meaning.”
Like Mike Ramsey I am not convinced by this one, but I see the paper as still identifying a real fallacy that all originalist work should be double-checked against. Watson is right that the arguments for enforcing indisputable plain meaning do not necessarily translate into arguments for enforcing disputed plain meaning, so originalists shouldn’t just help themselves to the easier arguments for the former without making the harder arguments for the latter. But I still believe there are good arguments for the latter.
(It would also be interesting to run similar arguments on other methodologies. Do the arguments for acting pragmatically in cases where there is an indisputably pragmatically correct thing to do apply to cases where it is disputed what the correct thing is to do?)