Author: JLEPP

Notes

Countering Public Pressure: Jury Anonymity As a Protection of Criminal Defendants [Note]

JLEPP

[PDF]

Silas J. Petersen 1*

Introduction

The phenomenon known as “trial by media” has long been regarded as dangerous to the fairness of high-profile trials.2  American history is replete with trials that captured public attention and galvanized anti-defendant fervor.3  One way that media coverage can threaten a defendant’s right to a fair trial is when the media prejudices the jury by publicizing information that would not be allowed into evidence at trial.4  An overlooked way in which media coverage can threaten the integrity of a jury is when jurors feel pressured by public opinion to convict the defendant, even if the jurors themselves are not unduly biased by pretrial publicity.  This Note explores this particular threat to the integrity of criminal trials and posits a solution: juror anonymity.5

Anonymous juries have been used with greater frequency in recent decades.6  Proponents of anonymity have argued that it is necessary to guard jurors’ privacy, shield them from media harassment, and, on occasion, protect them from dangerous defendants.7  But the practice is not without its critics.  Commentators have protested that juror anonymity has the potential to contribute to rather than remedy anti-defendant juror bias.8  Others contend that anonymous juries undermine the public’s right to a transparent and accessible justice system.9  Rejecting these concerns, this Note takes the perspective that anonymity can play a vital role in guaranteeing the defendant an impartial jury.  In high-profile cases, where the defendant is widely unpopular such that the jury is likely to feel intense public pressure to convict, an anonymous jury is necessary to secure the defendant’s Sixth Amendment rights.  

The argument proceeds in three parts.  Part I offers background information on the criminal jury, modern use of anonymous juries, and the constitutional rights at stake.  Part II describes situations where juries face public pressure to convict the defendant, illustrating the necessity of anonymity in certain cases.  After showing that other legal safeguards are insufficient to protect defendants from juries who are biased by public pressure, Part III argues that the benefits of anonymous juries to defendants outweigh any potential drawbacks and highlights their usefulness in guaranteeing the defendant a fair trial. 

I. Background

A. Constitutional Rights

1. Right to a Jury Trial

Article III of the Constitution provides that there be a jury trial for all crimes.10  The Sixth Amendment requires that criminal trials be speedy, public, and located in the state and district where the crime was committed and that the jury be impartial.11  The criminal jury has its origins in the common law and pre-existed the Constitution by several centuries.12  However, the Constitution’s jury requirement has not been interpreted to codify the common law jury.  When the Sixth Amendment was drafted, the Framers rejected a version that would have modified the word “[j]uries” with the phrase “with the accustomed requisites.”13  This fact led the Supreme Court in Williams v. Florida to conclude that “there is absolutely no indication in the ‘intent of the Framers’ of an explicit decision to equate the constitutional and common-law characteristics of the jury.”14  The Court went on:

The purpose of the jury trial … is to prevent oppression by the Government …. Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.15  

This is the guiding formulation of what is required of a criminal jury under the Sixth Amendment, and as long as they adhere to this, the features of a jury do not necessarily need to track those of the common-law jury.16 

2. Right to an Impartial Jury 

The Sixth Amendment right to an impartial jury requires juries in criminal cases to ground their verdicts exclusively in “evidence and argument in open court”17 and to be unbiased.18  A jury’s impartiality is compromised when it is subjected to influence or coercion that would keep it from reaching a fair verdict,19 as well as when it is exposed to prejudicial material,20 including when the jury is in a situation that allows private communication with parties or witnesses.21  A defendant may also not be subjected to trial amid the threat of mob domination.22  Three central mechanisms for ensuring an impartial jury are the voir dire process, change of venue, and the requirement that jurors be selected from a fair cross-section of the community.

The voir dire process is a way to directly test the bias of individual jurors.23  In both the federal and state criminal systems, voir dire is used to narrow a previously assembled list of potential jurors into a petit jury.24  Attorneys have the opportunity to ask potential jurors questions to uncover biases, and they are allowed to remove a certain number of potential jurors with preemptory challenges.25  Other jurors may be removed after being challenged for cause, which requires the challenging party to make a showing that the potential juror was biased.26  It is unconstitutional for a juror who is prejudiced and should have been challenged for cause to be seated.27  The trial judge has discretion to determine if a juror is impartial,28 and “the Constitution lays down no particular tests” of impartiality.29

The Sixth Amendment requires that the venue for a trial be changed when the area from which a jury would be selected is likely to be biased because of publicity about the trial.30  Factors relevant to a change of venue motion include the characteristics of the community, how prejudicial the publicity was, how recent the publicity was, and, for postconviction challenges, whether the jury’s verdict shows that it was prejudiced by the publicity.31

The Fourteenth Amendment’s Equal Protection Clause prohibits prosecutors from excluding potential jurors on account of their race,32 and the Sixth Amendment’s impartial jury requirement guarantees that juries be selected from a venire that forms “a representative cross-section of the community.”33  A defendant alleging that a jury was not selected from a fair cross-section of the community must show “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.”34

B. Anonymous Juries

Because the voir dire process was historically open to the public, juries were not anonymous.35  Jurors were selected from the immediate locality of the trial, which was often a small enough area that most people knew each other, so the identities of the jurors were likely common knowledge.36  Anonymous juries in America were “very rare before the 1970s.”37 The constitutional provisions that limit the use of anonymous juries include the defendant’s Sixth Amendment rights to an impartial jury and a public trial and the public’s First Amendment right to access criminal trials.38  

An anonymous jury was first used in a criminal trial in the United States in the 1977 case United States v. Barnes.39  Like many of the first trials to feature an anonymous jury, this was an organized crime case.40  After the United States Marshals received a phone call from someone threatening to kill a government witness, the prosecution asked the judge to sequester the jury.41  The judge went beyond this, ordering sua sponte that the names, addresses, and religious and ethnic backgrounds of potential jurors be kept secret.42  The defense’s numerous objections were unavailing,43 and the Second Circuit affirmed, holding that the jury’s anonymity did not implicate the Sixth Amendment right to an impartial jury.44  The court reasoned that the Sixth Amendment does not require disclosure of the jurors’ identifying information unless it is relevant to show prejudice with the potential to bias the verdict.

The Second Circuit later developed rules outlining when the use of anonymous juries is consistent with the Sixth Amendment.45  An anonymous jury is allowed despite the defendant’s opposition when there is a compelling “reason to believe that the jury needs protection” from external actors and when “reasonable precautions” are taken to protect the defendant’s fundamental rights and ensure that the jury remains impartial.46  The trial judge has discretion to make this determination.47  Examples of situations yielding compelling reasons for jury protection include when the defendant is involved in organized crime or some group able to harm jurors, the defendant has previously interfered with the judicial process, or there is a threat that the media will harass jurors.48  Federal circuits and state courts alike have used this test to determine the constitutionality of anonymous juries.49 

The Supreme Court has held that the First Amendment limits the concealment of criminal proceedings, giving the public and the media a right to access them.50  In Press-Enterprise II v. Superior Court, the Court laid out what has become known as the “experience and logic” test, which is used to determine when the First Amendment right to public access attaches.51  A court must find both that “the place and process [in question] have historically been open to the press and general public“52 (the experience prong) and that “public access plays a significant positive role in the functioning of the particular process in question” (the logic prong).53  Once it is determined that the First Amendment right has attached, criminal proceedings are presumptively open,54 and a defendant’s motion to exclude the public from court proceedings is subject to a modified strict scrutiny standard.55  Applying the experience and logic test in Press-Enterprise II, the Court held that keeping the transcript of a closed preliminary hearing for a murder trial sealed was a violation of the First Amendment, even when the defendant argued against its release on the grounds that it would create prejudicial publicity.56  There is no consensus among courts on whether the public has a First Amendment right to jurors’ identifying information.57  While a number of courts have found that the experience prong would be satisfied, there are doubts as to the logic prong.58 

Anonymous juries have been used with greater frequency in the last couple of decades.59  While initially used primarily to guarantee juror safety from dangerous defendants, anonymous juries are now sometimes empaneled to protect juror privacy.60  They have therefore been used in some trials that garnered great public interest.61 Courts continue to insist, however, that empaneling an anonymous jury is a “drastic measure” which should be used only “in limited and carefully delineated circumstances.”62

II. Public Pressure on Juries As a Threat to Unpopular Defendants

In high-profile trials, there is always a risk that the jurors will be biased by prejudicial media coverage, requiring a robust voir dire process and occasionally a change of venue.  A more subtle kind of juror bias can arise when jurors feel public pressure to convict the defendant.  The modern media and political environment have made this phenomenon especially dangerous,63 and its threat can be seen in two recent high-profile criminal cases, discussed below.  In both cases, media coverage and public perception tied the trial to a political or social movement such that a conviction had political or social meaning beyond the facts of the case.  A large segment of the public was so in favor of conviction in each case that jurors would have understandably been afraid to face the media and general public if they had acquitted the defendant.  This section shows that when jurors’ identities are publicly available, jurors may be biased by the verdict rendered in the court of public opinion, denying the defendant the right to an impartial jury.

A. The Chauvin Case 

On the night of May 25, 2020, a video of Minneapolis police officer Derek Chauvin kneeling on the neck of George Floyd, an unarmed black man who died shortly after, began circulating on social media platforms, inducing public outrage.64  The original post of the nine-minute video, which showed Floyd groaning and complaining that he was unable to breathe as Chauvin, unphased by protesting onlookers, continued his restraint, quickly went viral on social media.65  In the months that followed, protestors in Minneapolis and other cities in the United States and around the world called for the conviction of Chauvin as well as changes to American policing, which they saw as rife with racism, brutality, and unaccountability.66  Some of the protests turned to riots as stores were looted and buildings burned in multiple cities.67  Chauvin was charged with murder.  When his three-week trial came to a close in April 2021, Minneapolis braced for further violence in case of an acquittal, with over 4,000 members of the Minnesota National Guard and law enforcement dispatched to the city, public schools closed, and businesses boarded up.68  The community breathed a collective sigh of relief when the jury found Chauvin guilty of second and third-degree murder and manslaughter.69  He was sentenced to 22.5 years in prison.70

In general, media coverage of Floyd’s death reinforced the theory of protestors and activists that it was the result of racism and police brutality.71  One study that analyzed all the news reports of Floyd’s death in the following two weeks found that about 55 percent of all news items linked his death to racism or police brutality.  In particular, the study found that online coverage from the New York Times and the Washington Post mentioned racism in 57 percent and 43 percent of articles about Floyd’s death, respectively, with even online articles from Fox News referencing racism in connection with the event in 38 percent of articles and police brutality in 25 percent.72  The media also made a point of highlighting the infrequency with which police officers were convicted of murder and the importance of the case for racial justice, politicizing the case by tying it to the movement to hold police more accountable for racist acts.73 

Though public opinion was not unified on Chauvin’s guilt, and was even more divided on calls for police reform,74 the unified message of the country’s major institutions before and after the trial was that Chauvin committed a murder motivated by racism.75  Nearly every major American institution felt it necessary to give its view on the case, and there was little variance in opinion.  Corporate America flooded the internet with statements expressing outrage at Chauvin’s actions, denouncing them as racist.76  Colleges and universities across the country released statements demanding accountability for Floyd’s death and affirming support for racial justice activism.77  Religious leaders spoke out characterizing Floyd’s death as a racist killing.78  Professional sports leagues and teams likewise expressed their pro-conviction perspective.79  Even many police organizations publicly condemned Chauvin.80  These reactions strongly reinforced the perception that the case was about more than one man’s guilt, but about an anti-racism movement.  Any reasonable observer could see that the country’s major institutions would likely view anything less than a conviction as racist.

B. The Weinstein Case 

In October 2017, the New York Times published an article detailing accusations of sexual harassment against prominent film producer Harvey Weinstein.81  The report alleged that for decades Weinstein used his powerful position to exploit women who were aspiring to land acting roles in Hollywood.82  Five days later, the New Yorker published accusations from thirteen women against Weinstein, which included rape.83  As further sexual assault allegations from dozens more women came to light in the following weeks and months,84 police in Los Angeles, New York, and London began criminal investigations into Weinstein’s conduct,85 culminating with charges of rape filed against him in New York in May 2018.86 

The accusations against Weinstein precipitated the #MeToo movement, a social media campaign that attempted to shine more light on sexual abuse by men in powerful positions.87  Emboldened by the movement, more victims were sharing their stories of sexual assault, and “it became impossible for a single week, or even day, to go by without another story breaking in which another powerful man was accused of sexual misconduct. It was as though someone had jostled a line of dominoes, and now we were watching them all topple in real time.”88  Some accusers received considerable media attention.  New York magazine ran a photo portfolio of some of Weinstein’s accusers,89 and Time magazine named #MeToo’s “Silence Breakers” as its 2017 “Person of the Year.”90  Some saw the atmosphere as essential for giving women the courage to speak up and overcome society’s tendency to dismiss sexual assault allegations, which allowed powerful men to escape justice.91  Others argued that the movement was making it too easy to ruin men with unproven accusations and a lack of due process.92  They noted that the movement’s mindset of “believe all women” created a presumption of guilt when a man was accused.93 

One result of the movement was that those associated with alleged offenders or who did not criticize them harshly or quickly enough were in danger of being vilified themselves, and this was particularly true in Weinstein’s case.  In the months after the accusations against Weinstein were first leveled, actor Meryl Streep, who had a close professional relationship with Weinstein, took harsh criticism for not speaking out against him sooner.94  Movie director Woody Allen was roundly condemned for commenting in the days after the scandal broke that he was “sad for Harvey” and “everybody involved.”95  He later clarified that all he meant to say was that Weinstein was “a sad, sick man.”96  Most remarkably, law professor Ronald Sullivan Jr. and his wife lost their appointments as faculty deans at Harvard after Sullivan was denounced on campus for joining Weinstein’s legal defense team.97 Two undergraduates wrote an op-ed in the Harvard Crimson arguing that his presence was “triggering” for sexual assault survivors,98 and protestors graffitied his office door.99  After months of attacks, Sullivan announced he would no longer represent Weinstein.100 

It is an understatement to say that Weinstein was an unpopular defendant when his case came to trial in early 2020.  One prominent New York defense attorney told the New York Times, “I can’t think of another case where the defendant comes into trial at a larger disadvantage in terms of perception.”101  During the trial, protestors outside the New York courthouse chanted “rapist.”102  The public eagerness to see Weinstein convicted could be attributed to his strong association with the #MeToo movement.  As the first case from the #MeToo era to go to trial, Weinstein’s case was called “historic”103 and “a crucial test in the effort to hold powerful men accountable for sexual harassment in the workplace.”104  The New York Times journalists who first broke the story of allegations against Weinstein proclaimed just before the trial started that “the outcome already is anticipated as a verdict on much more than one man’s alleged wrongdoing.”105  In February 2020, Weinstein was convicted of rape and sexual abuse and sentenced to twenty-three years in prison.106

C. Public Pressure on Juries to Convict

There are many perils faced by jurors in high-profile cases like these, including invasions of privacy and threats.  For example, after the 2011 acquittal of Casey Anthony, a Florida woman who was accused of murdering her young daughter, jurors faced public outrage and death threats.107  The danger was so great that the jurors were reported to have gone into hiding when the judge released their names three months after the verdict.108  The jurors in the 1992 trial of  four police officers accused of beating Rodney King in Los Angeles, whose not guilty verdict sparked race riots, described similar mistreatment by the public.109  One juror who received death threats told the Chicago Tribune in the weeks that followed, “[m]y life is beyond hell. I cannot take anymore.”110  Other jurors were reported to have left their homes and moved out of the area for their safety.111

Pressure on jurors to convict can take more subtle and less violent forms as well.  Jurors may fear social ostracization and backlash from friends and family if they reach an unpopular verdict.  They may want to avoid being seen publicly as on the wrong side of history.112  Jurors may also be justified in fearing that an unpopular or politically incorrect acquittal could damage their professional lives and reputations, leading to discrimination and career difficulties.  After all, the careers of some, even private individuals, have been ruined for being seen as violating the social norms at the heart of the Black Lives Matter and #MeToo movements (which were front and center in the Chauvin and Weinstein cases).113  Ronald Sullivan, the attorney who lost his position at Harvard for joining Weinstein’s defense team, told the New Yorker that people who supported his decision to represent Weinstein “feel as though they cannot say anything publicly because they will be tarred and feathered as ‘rape sympathizers.’”114  In such a climate, it would be no overreaction for jurors to worry that employers or universities would take adverse action against them because their decision to acquit was not in line with the company or institution’s values.

Indeed, there is reason to think that jurors in the Chauvin and Weinstein cases faced such pressures.  The jurors in the Weinstein case, who were kept anonymous and identified only by numbers, were still hounded by the media as soon as their jury service ended.115  Though the identities of the jurors in the Chauvin case were kept private for the duration of the trial, with only some limited demographic information released initially, Judge Peter Cahill told them during juror selection that their names would eventually be made public.116  In November 2021, about seven months after the trial, Judge Cahill made good on his promise, releasing the names of the twelve jurors and two alternate jurors in Chauvin’s trial.117  It is worth considering whether Chauvin’s jury, knowing that they would eventually have to publicly stand by their verdict, could have been impartial considering that an acquittal would put them at odds with the position of nearly every corporation and university in the country.118  Even if the jurors were unbiased by pre-trial publicity, they must have worried that a not guilty verdict would eventually risk them being viewed as racists by nearly any company they would like to work for, university they might study at, and even many religious bodies and nonprofits they would like to join.  And this is not to mention the strong possibility that a not guilty verdict would have triggered rioting and unrest in Minneapolis and across the country and brought death threats and harassment to the jurors not unlike what occurred after the Rodney King and Casey Anthony verdicts.119

III. Anonymous Juries as a Protection of Defendants

As we have seen, in trials where a defendant’s guilt has been politicized or tied to a political or social movement, there is a serious risk that the jury will not be able to be impartial.  The present mechanisms of achieving juror impartiality are unable to solve this problem so long as the identities of jurors are made public.  A potential solution is the use of anonymous juries.  As will be argued below, anonymous juries may assist the court in guaranteeing the defendant a fair trial and can be justified under the Sixth Amendment.

A. Existing Safeguards Are Insufficient 

The principal mechanisms for ensuring an impartial jury are ineffective at preventing jury bias when the defendant is widely unpopular and the case is highly politicized, like in the cases discussed above.120  First, while voir dire may be helpful in identifying obvious or glaring biases among the jurors, the usefulness of questioning jurors about their ability to be fair is limited.  Besides the fact that jurors are not always honest during voir dire,121 studies show that they often struggle to identify their own prejudices.122  Prejudice often operates on an unconscious level, meaning that jurors with biases against the defendant may ignorantly have confidence in their ability to be impartial.123  It can be particularly difficult to weed out the kind of bias that arises when jurors are aware of the unpopularity of a defendant or the possibility of public backlash following an acquittal but are not themselves consciously biased against the defendant.124  Jurors may be able to honestly answer that media coverage has not prejudiced their view of the defendant, and yet unknowingly be biased by their knowledge that the general public would be outraged by an acquittal.125  

Change of venue can likewise do little to mitigate the pressure on juries to convict in high-profile trials.  In extremely popular cases with national attention where jurors feel intimidated by public opinion to convict the defendant, moving the trial to a different county or even state is unlikely to increase the chance of seating an impartial jury.126  Indeed, in the modern age where television and the internet allow national media to dominate over local media, public pressure on jurors to convict is unlikely to be much stronger in the region where the crime was committed than in other areas of the country.127  While change of venue can be an effective means of guaranteeing the defendant a fair trial in some instances, in the types of cases described in this Note it is all but useless.

B. Anonymity as a Solution to Public Pressure

In the first years of its use, juror anonymity was generally requested by the prosecution not the defendant as a means to protect jurors from dangerous defendants.128  Critics of the practice thus have viewed it as a threat to defendants’ Sixth Amendment rights, namely the right to a public trial and an impartial jury.129  Jurors, the argument goes, are more likely to assume that the defendant is dangerous when the court conceals their identities from them.130  This creates a bias that undermines the presumption of innocence at the heart of the Sixth Amendment.131  However, when it is clear to the jurors that the reason for anonymity is to shield them from public pressure, and not the defendant’s violence, this concern vanishes.  In high-profile cases with a great amount of media attention, and especially when the defendant is not alleged to be involved in organized crime, jurors can tell that their anonymity is not a reason to fear the defendant or her associates.  

Another argument against anonymous juries is that their unaccountability to the public allows them to be derelict in their duty to apply the law impartially.132  There is some social science evidence that jurors who do not need to explain and justify their opinion on the defendant’s guilt think less carefully about their verdict and are more likely to convict.133  However, this does little to undermine the case for anonymous juries, since even jurors who do not have to explain their reasoning to the world on cable television must engage with and convince their fellow jurors in the jury room.134  This is especially true when verdicts are required to be unanimous, meaning that jurors cannot quietly cast their votes relying solely on their prejudiced first impressions.135  To reach a verdict, jurors are required to engage in reasoned discussion of the case, the anticipation of which encourages jurors to pay close attention to the evidence and think carefully about their opinions.  This is just the process that social science tells us leads juries to a fairer treatment of defendants.136 

In addition, the revelation that anonymity reduces jurors’ feelings of accountability to the public,137 far from being a drawback, is an important benefit of anonymous juries.  One of the purposes of our jury system is to ensure that criminal trials are uninfluenced by public pressure, especially political pressure.138  Jurors should be insulated from public opinion so they can focus only on applying reason and common sense to the evidence presented at trial.139  Public opinion in high-profile cases is often tethered to political and social causes separate from the facts of the case at hand,140 and reliance on such external considerations can only serve to prevent the application of equal justice.  Jurors that feel accountable to the media, political activists, or violent mobs jeopardize our criminal justice system and the rights of defendants. 

Another argument against anonymous juries is that publicizing the names of jurors is necessary to maintain the public’s trust in our judicial system.  The Supreme Court pointed out in Press Enterprise I that the openness of criminal proceedings “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.”141  The Fourth Circuit has also opined:

We recognize the difficulties which may exist in highly publicized trials . . . and the pressures upon jurors.  But we think the risk of loss of confidence in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity.  If . . . the attendant dangers of a highly publicized trial are too great, [the court] may always sequester the jury and change of venue is always possible . . . .142

This argument is unpersuasive, however, because it is possible to keep voir dire and all court proceedings open to the public without disclosing jurors’ identifying information.  Multiple commentators have suggested the use of a juror numbering system whereby jurors and potential jurors would be identified by numbers during court proceedings, while their names and addresses would be revealed only to the court and the parties.143  Such a system would allow the parties to conduct a full voir dire, allow the public to learn the characteristics of the jurors so it can be confident in the trial’s fairness, and still keep the media from having access to jurors’ names.144  The jury would remain anonymous, but because all court proceedings would be open, there would be no harm to the integrity of the judicial system.145  There is also nothing lost from the public not having the opportunity to try to root out biased jurors itself:

[F]or there is no reason to believe that the public (including the media) has the ability or motivation to go beyond anything the parties might uncover.  It is the goal of media entities to sell newspapers or advertising, not to ensure that a trial is fair.  While the media may have more resources at its disposal than the general public, there is no indication that these resources would exceed those of the prosecution or defense in a high-profile case.146

The purported negative consequences of jury anonymity are insufficient to outweigh the benefit of shielding jurors from public pressure in high-profile trials.  In cases with broad popularity, and especially those where a social or political movement casts the defendant as a villain, courts should not hesitate to keep jurors’ names secret to make sure the trial has as little outside influence as possible.147  If a jury is influenced by public pressure, the defendant’s Sixth Amendment right to an impartial jury is violated,148 and if a case is close, it may only take one juror who fears public backlash to sway the decision away from justice.149  Preventing a situation like this must be the priority of courts, especially considering how much easier it is to take measures like juror anonymity that proactively decrease the likelihood of juror bias than to weed out actual bias among jurors.150

Conclusion

High-profile trials with broad public appeal and widespread outrage against the defendant can be difficult cases for courts to navigate.  The possibility of the jury being influenced by information other than “evidence and argument in open court”15 puts the defendant’s constitutional rights in grave danger.  This threat is particularly relevant when a criminal trial is tied to a political or social movement, a phenomenon that has occurred in some recent cases.  Anonymous juries, rather than harming the integrity of our criminal justice system, can be a solution to this problem by removing public pressure on juries to convict the defendant.

 

  1. *    J.D. Candidate 2023, Notre Dame Law School. I would like to thank Professor Gerard Bradley for his advice and insight during the writing process. ↩︎
  2. See Gavin Phillipson, Trial by Media: The Betrayal of the First Amendment’s Purpose, 71 L. & Contemp. Probs. 15, 15 (2008); David A. Sellers, The Circus Comes to Town: The Media and High-Profile Trials, 71 L. & Contemp. Probs. 181, 182–83 (2008). ↩︎
  3. See Sellers, supra note 1, at 182–83. ↩︎
  4. See generally Phillipson, supra note 1. ↩︎
  5. For the purposes of this Note, a jury is anonymous when the court does not release identifying information about jurors to the public, even if the parties are given the jurors’ names. ↩︎
  6. See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1034 (11th Cir. 2005) (“[S]ignificant numbers of federal and state courts throughout the country have utilized the procedure to protect jurors, prevent jury tampering and limit media influence.”). ↩︎
  7. See generally Scott Ritter, Beyond the Verdict: Why Courts Must Protect Jurors from the Public Before, During, and After High-Profile Cases, 89 Ind. LJ 911 (2014).  ↩︎
  8. See generally Gerald F. Uelmen & Ephraim Margolin, The Anonymous Jury: Jury Tampering by Another Name?, 9 Crim. Just. 14–18, 60–61 (1994). ↩︎
  9. See generally Christopher Keleher, The Repercussions of Anonymous Juries, 44 U.S.F. L. Rev. 531 (2010).  ↩︎
  10. U.S. Const. art. III, § 2. ↩︎
  11. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law ….”). The Sixth Amendment was incorporated to the states under the Fourteenth Amendment in Duncan v. Louisiana, 391 U.S. 145 (1968). ↩︎
  12. See Duncan v. Louisiana, 391 U.S. 145, 151 (1968). ↩︎
  13. Williams v. Florida, 399 U.S. 78, 95–96 (1970). ↩︎
  14. Id. at 99. ↩︎
  15. Id. at 100. ↩︎
  16. See Brian Clifford, Constitutional Law – “Had Anything Been Wrong, We Should Certainly Have Heard”: The Anonymous Jury in America, 32 W. New Eng. L. Rev. 215, 224 (2010). ↩︎
  17. Mu’Min v. Virginia, 500 U.S. 415, 439 (1991) (Marshall, J., dissenting) (quoting Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 462 (1907)). ↩︎
  18. See Dennis v. United States, 339 U.S. 162, 168 (1950); Irvin v. Dowd, 366 U.S. 717, 722 (1961). ↩︎
  19. See Remmer v. United States, 350 U.S. 377, 381–82 (1956); Smith v. Phillips, 455 U.S. 209, 217 (1982). ↩︎
  20. See Sheppard v. Maxwell, 384 U.S. 333, 351 (1966). ↩︎
  21. See Remmer v. United States, 347 U.S. 227, 451 (1954). ↩︎
  22. See Frank v. Mangum, 237 U.S. 309, 335 (1915); Sheppard, 384 U.S. at 355 (1966). ↩︎
  23. See Andre A. Moenssens et al., Criminal Law 7 (8th ed. 2008). ↩︎
  24. See 6 Wayne R. LaFave et al., Criminal Procedure § 22.3(a), at 71 (3d ed. 2007). ↩︎
  25. See id. at 72. ↩︎
  26. See id. ↩︎
  27. See Ross v. Oklahoma, 487 U.S. 81, 85 (1988). ↩︎
  28. See Ristaino v. Ross, 424 U.S. 589, 594–595 (1976). ↩︎
  29. United States v. Wood, 299 U.S. 123, 145–146, (1936). ↩︎
  30. See Skilling v. United States, 561 U.S. 358, 378 (2010). ↩︎
  31. See id. at 382–83. ↩︎
  32. Batson v. Kentucky, 476 U.S. 79, 86 (1986). ↩︎
  33. Taylor v. Louisiana, 419 U.S. 522, 528 (1975). ↩︎
  34. Duren v. Missouri, 439 U.S. 357, 364 (1979). ↩︎
  35. See Robert Lloyd Raskopf, A First Amendment Right of Access to a Juror’s Identity: Toward a Fuller Understanding of the Jury’s Deliberative Process, 17 Pepp. L. Rev. 357, 370 (1990); see also Margolin & Uelmen, supra note 7, at 14 (“Juror anonymity is an innovation that was unknown to the common law and to American jurisprudence in its first two centuries.”). ↩︎
  36. See United States v. Wecht, 537 F.3d 222, 235 (3d Cir. 2008); see also In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988) (“When the jury system grew up with juries of the vicinage, everybody knew everybody on the jury . . . .”). ↩︎
  37. Wecht, 537 F.3d at 236. “[I]t appears that public knowledge of jurors’ names is a well-established part of American judicial tradition.” Id. See Abraham Abramovsky & Jonathan I. Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal Comment. 457, 457 (1999) (“[I]n United States v. Barnes, a federal trial judge in the Southern District of New York empaneled the first fully anonymous jury in American history.”). ↩︎
  38. See U.S. Constitution, amend. VI (“[T]he accused shall enjoy the right to a . . . public trial, by an impartial jury . . . .”); id. amend I (“Congress shall make no law . . . abridging the freedom of speech . . . .”); see also Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 603–04 (1982) (extending the First Amendment to give the public the right to access criminal trials). ↩︎
  39. 604 F.2d 121 (2d Cir. 1979); Abramovsky & Edelstein, supra note 36, at 457. ↩︎
  40. Barnes, 604 F.2d at 130. ↩︎
  41. Abramovsky and Edelstein, supra note 36, at 461. ↩︎
  42. Id. ↩︎
  43. Barnes, 604 F.2d at 169. ↩︎
  44. Id. at 143. ↩︎
  45. United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991). ↩︎
  46. Id. ↩︎
  47. Id. ↩︎
  48. Id. ↩︎
  49. See, e.g., United States v. Darden, 70 F.3d 1507 (8th Cir. 1995); United States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995); United States v. Ross, 33 F.3d 1507 (11th Cir. 1994); United States v. Crockett, 979 F.2d 1204 (7th Cir. 1992); Major v. State, 873 N.E.2d 1120, 1127 (Ind. Ct. App. 2007); State v. Bowles, 530 N.W.2d 521 (Minn. 1995); State v. Ivy, 188 S.W.3d 132, 144 (Tenn. 2006). ↩︎
  50. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 556 (1980). ↩︎
  51. 478 U.S. 1, 8–9 (1986). ↩︎
  52. Id. at 8. ↩︎
  53. Id. ↩︎
  54. See id. ↩︎
  55. See id. at 15. “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest.” Press-Enter. Co. v. Superior Ct. (Press-Enterprise I), 464 U.S. 501, 510 (1984). See also Raleigh Hannah Levine, Toward a New Public Access Doctrine, 27 Cardozo L. Rev. 1739, 1759 (2006) (“[C]ourts often disagree as to which closures satisfy strict scrutiny. For some, the test is ‘“strict” in theory but fatal in fact;’ for others, searching for a way to justify closure, the test is strict in theory but quite flexible in fact.”). ↩︎
  56. Press-Enter. II, 478 U.S. at 5, 7. ↩︎
  57. Compare, e.g., United States v. Wecht, 537 F.3d 222, 235–239 (3d Cir. 2008) (holding that the public has a First Amendment right to access juror names), with Morgan v. Dickerson, 496 P.3d 793, 799 (Ariz. Ct. App. 2021) (holding that the First Amendment does not give the public a right to access juror biographical information).  ↩︎
  58. See Ritter, supra note 6, at 930–37 (arguing that not only are the benefits of making jurors’ identifying information public minimal, but that there are serious drawbacks to the practice, including its potential to compromise the defendant’s right to an impartial jury). This Note’s arguments incidentally support the view that the logic prong is not satisfied, so if correct, this implies that the First Amendment would not be an obstacle to a defendant’s request for an anonymous jury. ↩︎
  59. See United States v. Ochoa-Vasquez, 428 F.3d 1015, 1034 (11th Cir. 2005) (“[S]ignificant numbers of federal and state courts throughout the country have utilized the procedure to protect jurors, prevent jury tampering, and limit media influence.”). ↩︎
  60. Bridget M. Hathaway, Socially Networked Jurors Raise Concern: Empanelling Anonymous Juries to Protect the Defendant’s Right to a Fair Trial, 57 Wayne L. Rev. 557, 563 (2011). ↩︎
  61. See Keleher, supra note 8, at 549. ↩︎
  62. United States v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994). ↩︎
  63. See Ritter, supra note 6, at 936. ↩︎
  64. ‘I Can’t Breathe!’: Video of Fatal Arrest Shows Minneapolis Officer Kneeling on George Floyd’s Neck for Several Minutes, CBS Minnesota (May 26, 2020, 11:30 PM), https://minnesota.cbslocal.com/2020/05/26/george-floyd-man-dies-after-being-arrested-by-minneapolis-police-fbi-called-to-investigate/. ↩︎
  65. Id.; Darnella Frazier, Facebook (May 26, 2020, 1:46 AM), https://www.facebook.com/darnellareallprettymarie/posts/1425401580994277. ↩︎
  66. See Protests Across the Globe After George Floyd’s Death, CNN, https://www.cnn.com/2020/06/06/world/gallery/intl-george-floyd-protests/index.html (last updated June 13, 2020); see also #DefundThePolice, Black Lives Matter (May 30, 2020), https://blacklivesmatter.com/defundthepolice/. ↩︎
  67. See Tim Elfrink et al., Protests, Fires Rage Through the Night in Minneapolis, Washington Post (May 29, 2020, 8:01 AM), https://www.washingtonpost.com/nation/2020/05/28/minneapolis-protests-george-floyd-death/; Alan Taylor, Fires and Protests in the Twin Cities, The Atlantic (May 29, 2020), https://www.theatlantic.com/photo/2020/05/photos-fire-and-protests-twin-cities/612325/ (“Peaceful protest marches earlier in the day gave way to chaotic scenes as several buildings were broken into and set on fire, including the Minneapolis Police Third Precinct building, which was abandoned during the protest.”); See generally George Floyd Death: Violence Erupts on Sixth Day of Protests, BBC News (June 1, 2020), https://www.bbc.com/news/world-us-canada-52872401; Stephanie Pagones, Protests, Riots that Gripped America in 2020, Fox News (Dec. 29, 2020, 6:39 AM), https://www.foxnews.com/us/protests-riots-nationwide-america-2020. Cities that suffered from rioting included Minneapolis; New York City; Rochester, N.Y.; Portland, O.R.; Chicago, Kenosha, W.I.; and Philadelphia. See id. ↩︎
  68. Maia Niguel Hoskin, What the Derek Chauvin Trial Verdict Might Mean for the Black Community and How Workplaces Can Begin Preparing for Either Outcome, Forbes (Apr. 19, 2021), https://www.forbes.com/sites/maiahoskin/2021/04/19/what-the-derek-chauvin-trial-verdict-might-mean-for-the-black-community-and-how-workplaces-can-begin-preparing-for-either-outcome/?sh=cff527e423d3.  ↩︎
  69. See Mike Hayes et al., Derek Chauvin Guilty in Death of George Floyd, CNN, https://www.cnn.com/us/live-news/derek-chauvin-trial-04-20-21/index.html (last updated Apr. 21, 2021, 12:06 AM). ↩︎
  70. Amy Forliti and Steve Karnowski, Chauvin Gets 22 ½ Years in Prison for George Floyd’s Death, AP News (June 25, 2021), https://apnews.com/article/derek-chauvin-sentencing-23c52021812168c579b3886f8139c73d. ↩︎
  71. Ben Moore, Media Bias in the Coverage of George Floyd, Signal AI: The Signal AI Blog, https://www.signal-ai.com/blog/media-bias-in-the-coverage-of-george-floyd (last visited Mar. 24, 2023).  ↩︎
  72. Id. ↩︎
  73. See, e.g., Fabiola Cineas and Sean Collins, Why Chauvin’s Conviction Matters, Vox (Apr. 20, 2021, 5:12 PM), https://www.vox.com/2021/4/20/22387556/derek-chauvin-verdict-guilty-murder-manslaughter; Marc Ramirez, ‘This Is Our Selma Moment’: Racial Justice Activists Hope Derek Chauvin Verdict Spurs Larger Systemic Change, USA Today (Apr.  21, 2021, 4:51 PM), https://eu.usatoday.com/story/news/2021/04/21/chauvin-verdict-could-turning-point-racial-justice-us/7268060002/.  ↩︎
  74. See Jennifer Agiesta, CNN Poll: Most Satisfied with Chauvin Verdict, but Partisans Divide, CNN (Apr. 27, 2021, 5:15 PM), https://www.cnn.com/2021/04/27/politics/cnn-poll-chauvin-trial/index.html; see also Jemima McEvoy, Nearly Half of Republicans Think Derek Chauvin Verdict Was Wrong, Poll Shows, Forbes (Apr. 25, 2021, 12:50 PM), https://www.forbes.com/sites/jemimamcevoy/2021/04/25/nearly-half-of-republicans-think-derek-chauvin-verdict-was-wrong-poll-shows/?sh=f44d22766e86; see generally Domenico Montanaro, Where Views on Race and Police Stand a Year After George Floyd’s Murder, NPR (May 17, 2021, 5:00 AM), https://www.npr.org/2021/05/17/996857103/poll-details-the-very-different-views-of-black-and-white-americans-on-race-and-p. ↩︎
  75. See generally Lindsay McKenzie, Calls for Change, Inside Higher Ed (June 2, 2020), https://www.insidehighered.com/news/2020/06/02/higher-ed-leaders-address-protests-racial-tensions-and-killing-george-floyd (providing a sample of statements from universities regarding Floyd’s death); Natalie Sherman, George Floyd: Why Are Companies Speaking up This Time?, BBC News (June 7, 2020), https://www.bbc.com/news/business-52896265; Charisse Jones, ‘A Small Measure of Justice’: GM, Facebook Respond to the Derek Chauvin Guilty Verdicts, USA Today (April 21, 2021, 10:19 AM), https://www.usatoday.com/story/money/2021/04/20/corporate-america-responds-murder-conviction-derek-chauvin/7308456002/ (“Corporate America, which almost universally declared in statements that ‘Black lives matter’ in the wake of the death of George Floyd, called the conviction Tuesday of the officer who killed him a step forward— but said much more was needed to achieve widespread justice.”); Paul Clolery, Nonprofits React to Conviction of Derek Chauvin, The NonProfit Times (April 21, 2021), https://www.thenonprofittimes.com/npt_articles/nonprofits-react-to-conviction-of-derek-chauvin/ (providing a sample of nonprofit organizations’ post-verdict statements and commenting, “[Nonprofit] leaders not only backed the verdict, many also voiced support for the George Floyd Justice in Policing Act of 2021 pending in Congress . . . .”). ↩︎
  76. See Sherman, supra note 74. ↩︎
  77. McKenzie, supra note 74; see, e.g., Update from the President on the Death of Minneapolis Resident George Floyd, Univ. of Minn. (May 27, 2020), https://president.umn.edu/sites/president.umn.edu/files/2020-06/May%2027%20Update%20from%20the%20President.pdf (letter from the president of the University of Minnesota demanding accountability and justice for the death of George Floyd and announcing that the University would cease to contract with the Minneapolis Police Department). ↩︎
  78. See, e.g., Statement of U.S. Bishop Chairmen in Wake of Death of George Floyd and National Protests, U.S. Conf. of Cath. Bishops (May 29, 2020), https://www.usccb.org/news/2020/statement-us-bishop-chairmen-wake-death-george-floyd-and-national-protests (“We are broken-hearted, sickened, and outraged to watch another video of an African American man being killed before our very eyes.”); Southern Baptist Leaders Issue Joint Statement on the Death of George Floyd, Baptist Press (May 30, 2020), https://www.baptistpress.com/resource-library/news/southern-baptist-leaders-issue-joint-statement-on-the-death-of-george-floyd/ (“The images and information we have available to us in this case are horrific and remind us that there is much more work to be done to ensure that there is not even a hint of racial inequity in the distribution of justice in our country. We grieve to see examples of the misuse of force, and call for these issues to be addressed with speed and justice.”); Genelle Pugmire, LDS Church President Issues Personal Statement on Recent Events Over the Death of George Floyd, Daily Herald (June 1, 2020), https://www.heraldextra.com/news/2020/jun/01/lds-church-president-issues-personal-statement-on-recent-events-over-the-death-of-george-floyd/ (“We join with many throughout this nation and around the world who are deeply saddened at recent evidences of racism and a blatant disregard for human life.”); Lonny Goldsmith, Minnesota Jewish Leaders Speak Out on Death of George Floyd, The Forward (May 29, 2020), https://forward.com/news/447677/minnesota-jewish-leaders-speak-out-on-death-of-george-floyd/ (“The Jewish Community Relations Council of Minnesota and the Dakotas, in its statement released Tuesday afternoon, said: ‘The Jewish community is outraged by the killing of George Floyd . . . . We demand justice for his killing.’”). ↩︎
  79. See generally Derek Chauvin Verdict: Have Leagues Upheld Social Justice Promises Since George Floyd’s Murder?, ESPN (Apr. 20, 2021), https://www.espn.com/espn/story/_/id/31297638/derek-chauvin-verdict-leagues-upheld-social-justice-promises-george-floyd-murder. ↩︎
  80. See Becky Sullivan, After Chauvin Conviction, Police Consensus on Reform Remains Elusive, NPR (Apr. 22, 2021, 12:16 PM), https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/04/22/989854354/after-chauvin-conviction-police-consensus-on-reform-remains-elusive. ↩︎
  81. See Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, The N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.  ↩︎
  82. See id. ↩︎
  83. See Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories, The New Yorker (Oct. 10, 2017, 10:47 AM), https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their-stories.  ↩︎
  84. See Harvey Weinstein Timeline: How the Scandal Unfolded, BBC News (Oct. 24, 2022), https://www.bbc.co.uk/news/entertainment-arts-41594672 [hereinafter Harvey Weinstein Timeline]. ↩︎
  85. Richard Winton, Weinstein Criminal Probes Growing in New York and London, but so Far No Cases in L.A., L.A. Times (Oct. 16, 2017, 5:50 PM), https://www.latimes.com/business/hollywood/la-fi-ct-weinstein-investigation-20171016-story.html; Richard Winton & Victoria Kim, Investigation Launched After Actress Tells LAPD She Was Raped by Harvey Weinstein, L.A. Times (Oct. 20, 2017), https://www.latimes.com/local/lanow/la-fi-ct-weinstein-lapd-victim-20171019-story.html.  ↩︎
  86. Harvey Weinstein Timeline, supra note 83. ↩︎
  87. Elizabeth Chuck, #MeToo: Hashtag Becomes Anti-Sexual Harassment and Assault Rallying Cry, NBC News (Oct. 16, 2017, 11:32 AM), https://www.nbcnews.com/storyline/sexual-misconduct/metoo-hashtag-becomes-anti-sexual-harassment-assault-rallying-cry-n810986. The phrase “me too” was first used in activism against sexual assault by Tarana Burke in 2006, though it was not until 2017 that the modern movement employing the phrase kicked off. See History and Inception, Me Too, https://metoomvmt.org/get-to-know-us/history-inception/ (last visited Mar. 24, 2023).  ↩︎
  88. Constance Grady, Some Say the Me Too Movement Has Gone Too Far. The Harvey Weinstein Verdict Proves That’s False., Vox (Feb. 24, 2020, 5:07 PM), https://www.vox.com/culture/2020/2/24/21150966/harvey-weinstein-rape-conviction-sexual-predatory-assault-me-too-too-far.  ↩︎
  89. See Irin Carmon & Amanda Demme, 100 Women vs. Harvey Weinstein, N.Y. Mag. (Jan. 6, 2020), https://www.thecut.com/2020/01/harvey-weinstein-case-finally-comes-to-court.html. ↩︎
  90. See Stephanie Zacharek, Eliana Dockterman, & Haley Sweetland Edwards, The Silence Breakers, Time, https://time.com/time-person-of-the-year-2017-silence-breakers/ (last visited Mar. 24, 2023).  ↩︎
  91. See Anna North, 7 Positive Changes That Have Come from the #MeToo Movement, Vox (Oct. 4, 2019, 7:00 AM), https://www.vox.com/identities/2019/10/4/20852639/me-too-movement-sexual-harassment-law-2019; Grady, supra note 87.  ↩︎
  92. See Daphne Merkin, Publicly, We Say #MeToo. Privately, We Have Misgivings., N.Y. Times (Jan. 5, 2018), https://www.nytimes.com/2018/01/05/opinion/golden-globes-metoo.html; Karlyn Borysenko, The Dark Side Of #MeToo: What Happens When Men Are Falsely Accused, Forbes (Feb. 12, 2020, 3:00 PM), https://www.forbes.com/sites/karlynborysenko/2020/02/12/the-dark-side-of-metoo-what-happens-when-men-are-falsely-accused. ↩︎
  93. Borysenko, supra note 91. See generally Alan Dershowitz, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo (2019).  ↩︎
  94. See Lesley Messer, Meryl Streep Tells Rose McGowan: ‘I Did Not Know About Weinstein’s Crimes’, ABC News (Dec. 18, 2017, 6:26 PM), https://abcnews.go.com/Entertainment/meryl-streep-tells-rose-mcgowan-weinsteins-crimes/story?id=51870034.  ↩︎
  95. Gwilym Mumford, Woody Allen Forced to Clarify Comments About ‘Sad’ Harvey Weinstein, Guardian (Oct. 16, 2017), https://www.theguardian.com/film/2017/oct/16/harvey-weinstein-woody-allen-sad-comment-sexual-abuse-allegations. ↩︎
  96. Id. ↩︎
  97. Lara Bazelon, Harvard Shouldn’t Punish Harvey Weinstein’s Attorney, Slate (May 13, 2019, 7:25 PM), https://slate.com/news-and-politics/2019/05/harvey-weinstein-lawyer-harvard-law-school-wrong-decision.html.  ↩︎
  98. Danu A. Mudannayake & Remedy Ryan, Harvard, Remove Dean Sullivan, Harvard Crimson (Feb. 13, 2019), https://www.thecrimson.com/article/2019/2/13/mudannayake-ryan-remove-sullivan/.  ↩︎
  99. Bazelon, supra note 96. ↩︎
  100. Id. ↩︎
  101. Megan Twohey, et al., All Bets Are Off as Harvey Weinstein’s Sexual Assault Trial Opens Today, N.Y. Times (last updated Feb. 5, 2020), https://www.nytimes.com/2020/01/05/us/harvey-weinstein-trial.html. ↩︎
  102. Michael R. Sisak, Harvey Weinstein Appeals Conviction, Blames ‘Cavalier’ Judge, AP News (Apr. 5, 2021), https://apnews.com/article/new-york-trials-harvey-weinstein-manhattan-courts-4535e9bf0c8affed775236f58e6be4d5. ↩︎
  103. Maria Puente, Harvey Weinstein’s Sex Crimes Trial Begins Monday in New York: What You Need to Know, USA Today (last updated Jan. 6, 2020, 5:21 AM), https://eu.usatoday.com/story/entertainment/celebrities/2020/01/03/harvey-weinsteins-trial-what-know-me-too-case-goes-court/2774183001/. ↩︎
  104. Full Coverage: Harvey Weinstein Is Found Guilty of Rape, N.Y. Times (last updated June 15, 2021), https://www.nytimes.com/2020/02/24/nyregion/harvey-weinstein-verdict.html. ↩︎
  105. Twohey, et al., supra note 100. ↩︎
  106. Colin Dwyer, Harvey Weinstein Sentenced to 23 Years in Prison for Rape and Sexual Abuse, NPR (Mar. 11, 2020, 11:06 AM), https://www.npr.org/2020/03/11/814051801/harvey-weinstein-sentenced-to-23-years-in-prison.  ↩︎
  107. Kyle Hightower & Tamara Lush, Anthony Jurors Lay Low After Names Released, NBC News (Oct. 25, 2011, 8:26 AM), https://www.nbcnews.com/id/wbna45029137; Paul Duggan, Casey Anthony and the Court of Public Opinion, Wash. Post (July 5, 2011), http://articles.washingtonpost.com/2011-07- 05/local/35236428_1_media-assassination-casey-anthony-caylee. ↩︎
  108. Casey Anthony Jurors Reportedly in Hiding After Judge Releases Their Names, CBS News (Oct. 25, 2011, 2:46 PM), https://www.cbsnews.com/news/casey-anthony-jurors-reportedly-in-hiding-after-judge-releases-their-names/. See also Scott Ritter, Note, Beyond the Verdict: Why Courts Must Protect Jurors from the Public Before, During, and After High-Profile Cases, 89 Ind. L.J. 911, 911-12 (2014) (describing some of the harassment suffered by the jurors in the Anthony trial, including businesses putting up signs saying that they were not welcome).  ↩︎
  109. See Death Threats, Fear Follow King Jury, Chi. Tribune (May 10, 1992, 12:00 AM), https://www.chicagotribune.com/news/ct-xpm-1992-05-10-9202110599-story.html. ↩︎
  110. Id. ↩︎
  111. Id. ↩︎
  112. See Darlene Ricker, Holding Out: Juries vs. Public Pressure, 78 A.B.A. J. 48, 51 (1992). ↩︎
  113. See Helen Lewis, How Capitalism Drives Cancel Culture, Atlantic (July 14, 2020), https://www.theatlantic.com/international/archive/2020/07/cancel-culture-and-problem-woke-capitalism/614086/ (recounting the stories of Sue Schafer, a graphic designer fired from the Washington Post for wearing blackface to a party in an attempt to mock Megyn Kelly; Niel Golightly, who was forced to leave his job in communications at Boeing when his 33-year-old article arguing against women serving in the military was uncovered; and Emmanuel Cafferty, a truck driver who was tricked into making a white-power/”okay” hand signal, and a video of the incident went viral); John Daniel Davidson, If You Don’t Support Black Lives Matter, You’re Fired, Federalist (June 11, 2020), https://thefederalist.com/2020/06/11/if-you-dont-support-black-lives-matter-youre-fired/ (listing the people who received adverse treatment or were fired from their jobs in media, sports, education, and government for actions as insignificant as tweeting “all lives matter,” deciding not to cancel an exam in the days following George Floyd’s death, and stating on TV that Canada is not a racist country).  ↩︎
  114. Isaac Chotiner, A Harvard Law School Professor Defends His Decision to Represent Harvey Weinstein, New Yorker (Mar. 7, 2019), https://www.newyorker.com/news/q-and-a/a-harvard-law-school-professor-defends-his-decision-to-represent-harvey-weinstein. ↩︎
  115. See Ed Pilkington, Weinstein Jurors Face Next Challenge: Media Pressure to Tell Their Stories, Guardian (Feb. 27, 2020, 4:00 PM), https://www.theguardian.com/world/2020/feb/27/weinstein-guilty-verdict-jurors (“In high-profile cases such as the Weinstein trial, which was seen as the first big test in a court setting of the #MeToo movement, an entire media industry has developed around gaining exclusive access to key jurors. TV channels employ researchers to sit in court for the duration of the trial specifically to identify the jurors and approach them the instant the verdict is handed down.”). ↩︎
  116. Mark Berman & Holly Bailey, The Jurors Who Decided Derek Chauvin’s Fate, Wash. Post (Apr. 20, 2021), https://www.washingtonpost.com/nation/2021/03/28/jury-chauvin-trial-george-floyd/. ↩︎
  117. Judge Releases Names of Jurors in Derek Chauvin’s Trial, AP News (Nov. 2, 2021), https://apnews.com/article/death-of-george-floyd-minneapolis-c57dce196d1f4be95b88dc1c752f27c5. ↩︎
  118. See supra notes 74, 76, and accompanying text. See also Ritter, supra note 6, at 934 (“In a close case, a juror might factor this expected public response into his or her decision, even subconsciously, seeking to personally avoid such a backlash.”).  ↩︎
  119. See Tom Hals, Chauvin Jurors Facing ‘Through the Roof’ Stress as Deliberations Begin, Reuters (Apr. 19, 2021, 5:32 PM), https://www.reuters.com/world/us/chauvin-jurors-facing-through-roof-stress-deliberations-begin-2021-04-19/.  ↩︎
  120. See Mark J. Geragos, The Thirteenth Juror: Media Coverage of Supersized Trials, 39 Loy. L.A. L. Rev. 1167, 1169 (2006) (“[T]he existing techniques for minimizing the impact of juror bias do not effectively protect the rights of criminal defendants from the dangers posed by prejudicial publicity …. [T]hese methods have proven to be particularly ineffective when there is a high level of prejudice against the defendant.”). ↩︎
  121. See Newton N. Minow & Fred H. Cate, Who Is an Impartial Juror in an Age of Mass Media?, 40 Am. U. L. Rev. 631, 650–54 (1991) (“[I]t is unlikely that someone will admit publicly to being a bigot. Potential jurors are influenced by a desire to get the ‘right’ answer, find approval from the judge, and be in the majority. In addition, as one commentator noted, ‘prospective jurors observe what happens to those that are not sufficiently uninformed: the judge asks them to leave; they have failed the test as fair and impartial jurors.’”); Geragos, supra note 119, at 1187–89 (“Studies have shown that not only do jurors often hide their true prejudices and preconceptions during voir dire, but that jurors also sometimes lie outright during open court questioning.”).  ↩︎
  122. See Reshma M. Saujani, “The Implicit Association Test”: A Measure of Unconscious Racism in Legislative Decision-Making, 8 Mich. J. Race & L 395, 419 (2003) (“Social cognition theorists would argue that the search for the ‘ideal impartial juror’ is futile because jurors may not be aware of the biases that affect their judgments. Thus, the unconscious nature of juror bias prevents the voir dire from impaneling fair and impartial jurors, and methods, such as direct questioning, may be fruitless unless questions are designed to tap into one’s source of bias.”); see also Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1188 (Jul. 1995) (“Empirical evidence indicates that people’s access to their own cognitive processes is in fact poor. Accordingly, cognitive bias may well be both unintentional and unconscious.”). ↩︎
  123. See Krieger, supra note 121. ↩︎
  124. See James J. Gobert, Justice, Democracy and the Jury 73 (1997). ↩︎
  125. See Ritter, supra note 6, at 934 (“In a close case, a juror might factor this expected public response into his or her decision, even subconsciously, seeking to personally avoid such a backlash.”). ↩︎
  126. See Geragos, supra note 119, at 1190. ↩︎
  127. See Phillipson, supra note 1, at 27. ↩︎
  128. See Hathaway, supra note 59, at 563; Margolin & Uelmen, supra note 7, at 16 (“The primary justification for using an anonymous jury is to foreclose any opportunity for jury tampering by the defendant or the defendant’s associates.”). ↩︎
  129. See Keleher, supra note 8, at 553. ↩︎
  130. See Margolin & Uelmen, supra note 7, at 16 (“The prejudice that a defendant suffers when tried by an anonymous jury is not unlike the prejudice suffered by a defendant who is gagged and shackled in the courtroom.”). ↩︎
  131. See Keleher, supra note 8, at 553–54 (“Anonymity ‘implicates the defendant’s constitutional right to a presumption of innocence by “rais[ing] the specter that the defendant is a dangerous person from whom the jurors must be protected . . . .”‘“). ↩︎
  132. See id. at 563–65.  ↩︎
  133. See id.; see generally Philip E. Tetlock, Accountability and the Perseverance of First Impressions, 46 Soc. Psych. Q. 285–92 (1983); D. Lynn Hazelwood & John C. Brigham, The Effects of Juror Anonymity on Jury Verdicts, 22 L. & Hum. Behav. 695–713 (1998). ↩︎
  134. See Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 205 (2000) (“The whole point of having jurors deliberate face-to-face is to change people’s preconceptions about a case through conversation with others.”); Nancy J. King, Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trials, 49 Vand. L. Rev. 123, 143 (1996) (“The process of discussing and defending one’s views to fellow jurors, as well as the prospect of defending the verdict to one’s closest personal relations, may well generate the self-criticism that researchers suggest total anonymity sometimes removes.”). ↩︎
  135. See Emil J. Bove III, Preserving the Value of Unanimous Criminal Jury Verdicts in Anti-Deadlock Instructions, 97 Geo. L. J. 251, 266–67 (2008) (arguing that the requirement of unanimity improves the quality of jury deliberations by encouraging greater flow of information between jurors). ↩︎
  136. See Tetlock, supra note 132 (finding that those who were told before they studied evidence concerning a defendant that they would be required to justify their opinion of the defendant’s guilt or innocence were less likely to be affected by primacy bias: the tendency of evidence presented earlier in a sequence to have a greater influence on one’s final judgment than evidence presented later).  ↩︎
  137. See Hazelwood & Brigham, supra note 132, at 699 (arguing that anonymity makes jurors feel less accountable to the public because it reduces their fear of reprisal). ↩︎
  138. See King, supra note 133, at 140–41 (“Our jury system deliberately insulates the jury from political and social pressures that may influence the actions of prosecutors, the press, or politicians. We place our faith in the ability of the jury selection system to produce a group of conscientious community members who will do the right thing. Cut off from outside information, jurors must consider the evidence and instructions in each case using only the knowledge and experience they bring to the jury box.”); Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). ↩︎
  139. See King, supra note 133, at 143–44 (“[Accountable decision makers] are more likely than anonymous decision makers to shift their decision toward the views they believe are held by their prospective audience. If, indeed, public accountability encourages jurors to act as political partisans seeking to placate whatever group poses the greatest risk of retribution, rather than as individuals with independent consciences, it is exactly what we don’t need more of in our jury system today. ‘Anonymity,’ as Justice Stevens recently observed, ‘is a shield from the tyranny of the majority.’”).  ↩︎
  140. See supra notes 102–04 and accompanying text. ↩︎
  141. Press Enter. Co. v. Superior Court (Press Enterprise I), 464 U.S. 501, 508 (1984). ↩︎
  142. In re Baltimore Sun, 841 F.2d 74, 76–77 (4th Cir. 1988). ↩︎
  143. See, e.g., Laura N. Wegner, Juror Anonymity in Criminal Trials: The Media, the Defendant, and the Juror—Providing for the Rights of All Interested Parties, 3 Alb. Gov’t L. Rev. 429, 453–57 (2010); King, supra note 133, at 135. ↩︎
  144. See Wegner, supra note 142, at 456. ↩︎
  145. See Ritter, supra note 6, at 932–33 (“It is hard to imagine—and no court has identified—a situation where the public suspects something unfair happened in a trial solely because it does not know the names and addresses of the jurors. A public understanding of the adversarial system and the voir dire process should be enough to alleviate any of the public’s concerns.”); King, supra note 133, at 144 (“[T]he name of a juror is itself empty of meaningful content, at least on the question of how the juror might decide a case. Instead, the public looks to other information—the juror’s political views, occupation, race, age, etc. This information is readily available from questionnaires and voir dire proceedings, even when jurors are anonymous.”).  ↩︎
  146. Ritter, supra note 6, at 932. ↩︎
  147. See Patterson v. Colorado ex rel. Attorney General, 205 U.S. 454, 462 (1907) (“The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”). ↩︎
  148. See Ritter, supra note 6, at 935 (“Specifically, a juror concerned about the backlash he or she may face from the public in response to an acquittal may be more inclined to find a defendant guilty—a clear violation of the defendant’s Sixth Amendment rights.”); Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) (“Due process requires that the accused receive a trial by an impartial jury free from outside influences.”). ↩︎
  149. See Fullwood v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) (“[I]f even a single juror’s impartiality is overcome by an improper extraneous influence, the accused has been deprived of the right to an impartial jury.”); Parker v. Gladden, 385 U.S. 363, 366 (1966) (per curiam) (“[P]etitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.”). ↩︎
  150. See Ritter, supra note 6, at 935–36. ↩︎
  151. Patterson, 205 U.S. at 462. ↩︎
Notes

Smith to Smithereens? If So, What’s Next? [Note]

JLEPP

[PDF]

Joshua Lacoste 1*

Introduction

In Fulton v. City of Philadelphia,2 Justice Barrett, in her concurrence, referred to the possibility that the Court would overturn Employment Division v. Smith,3 which established that “a neutral and generally applicable law typically does not violate the Free Exercise Clause—no matter how severely that law burdens religious exercise.”4  Justice Barrett noted that “[t]here would be a number of issues to work through if Smith were overruled”5 and asked a series of questions that would become relevant if the Court did cast away Smith.  This paper will walk through how pre-Smith history culminated in Justice Barrett’s questions and examine alternatives to the current Smith regime of neutrality and general applicability.6

I. Pre-Smith World

Prior to engaging in an analysis of what could potentially replace Smith or the case’s current legal implications, understanding where Free Exercise jurisprudence prior to that case stood is useful.

A. Sherbert v. Verner

The landmark case that established the strict scrutiny standard for accommodation of religious belief was Sherbert v. Verner.7  In Sherbert, a member of the Seventh Day Adventist Church was fired for refusing to work on Saturday, or the day her faith ascribed “the Sabbath.”8  As a result, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act.9  Under this law, a claimant must both (1) be able to work and (2) be available for work to be eligible.10  Further, a claimant must not have failed to accept “suitable work” without good cause.11  Prior to the Court’s ruling in this case, Adell Sherbert was declared ineligible for benefits for failing to accept suitable work.

In conducting its analysis, the Court established that for the law to be upheld, 

it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of [her] religion may be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . . .12

The Court first determined that the disqualification for benefits did impose a burden on Sherbert’s free exercise of religion because “[Sherbert’s] declared ineligibility for benefits derive[d] solely from the practice of her religion, [and] the pressure upon her to forego that practice [was] unmistakable.”13  Furthermore, because the “ruling force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand[,]” the burden upon her free exercise was essentially the same as if she would have been fined for her Saturday worship.14

After concluding that the law imposed a burden on Sherbert’s free exercise, the Court turned to the question of “whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifie[d] the substantial infringement of [her] First Amendment right.”15  Without doing so by name, the Court effectively introduced a standard of “strict scrutiny” in the presence of a substantial burden on an individual’s free exercise of religion.  In fleshing out this standard, the Court reasoned that “no showing merely of a rational relationship to some colorable state interest would suffice; [rather] in this highly sensitive constitutional area, ‘only the gravest abuses, endangering paramount interests, give occasion for permissible limitation[.]’”16  Ultimately, the Court did not find the state’s interest compelling because it suggested “no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might . . . dilute the unemployment compensation fund . . . [and] hinder the scheduling by employers of necessary Saturday work.”17

The Court differentiated the state interests in Sherbert from those in Braunfeld v. Brown,18 which featured a “less direct burden upon religious practices.”19  There, although the Sunday closing law at issue made “the practice of [the Orthodox Jewish merchants’] . . . religious beliefs more expensive,” it was “saved by . . . a strong state interest in providing one uniform day of rest for all workers.”20  In that instance, the “secular objective could be achieved . . . only by declaring Sunday to be that day of rest”; and “[r]equiring exemptions for Sabbatarians . . . appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable.”21

In holding that the South Carolina Unemployment Compensation Act did not overcome the threshold of strict scrutiny, the Court emphasized it was not “fostering the ‘establishment’ of the Seventh-day Adventist religion in South Carolina.”22  Rather, it determined that “the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions” that the Establishment Clause precludes.23

B. Wisconsin v. Yoder

Another case integral to the early onset of Free Exercise jurisprudence in the context of the strict scrutiny standard was Wisconsin v. Yoder.24  Here, “[r]espondents . . . Yoder and . . . Miller [were] members of the Old Amish Religion, and respondent . . . Yutzy [was] a member of the Conservative Amish Mennonite Church.”25  All resided in Wisconsin, where a “compulsory school-attendance law required them to cause their children to attend public or private school until reaching age 16.”26  However, they “declined to send their children, ages 14 and 15, to public school after they completed the eighth grade” and “were not enrolled in any private school, or within any recognized exception to the compulsory-attendance law.”27  The three individuals believed enrolling their children in the required schooling was antithetical “to the Amish religion and way of life.”28  Doing so, they thought, “would . . . expose themselves to the danger of the censure of the church community [and] . . . also endanger their own salvation and that of their children.”29  Among the fundamental beliefs of the Amish faithful is that “salvation requires life in a church community separate and apart from the world and worldly influence.”30

Here, the Court acknowledged Wisconsin’s ability to “impose reasonable regulations for the control and duration of basic education.”31  However, in re-introducing the Sherbert strict scrutiny test, the Court declared that “a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment.”32  Before diving into its analysis, the Court makes the following clear statement of an application of strict scrutiny:

[F]or Wisconsin to compel school attendance beyond the eighth grade against a claim that [it] interferes with the practice of a legitimate religious belief, [the State must neither] deny the free exercise of [religion] by its requirement, or [it must have a sufficient interest] to override the interest claiming protection under the Free Exercise Clause.33

The Court reiterates the principle that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”34

In its analysis, the Court reasoned that “[t]he impact of the compulsory-attendance law on respondents’ practice of the Amish religion [was] . . . severe [and] inescapable [because it] affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”35  Moreover, it carried with it the “objective danger” of the “real threat of undermining the Amish community and religious practice as they exist today”—they must choose between abandoning their deeply held belief “or be forced to migrate to some other and more tolerant region.”36

II. Smith Land

The Court significantly departed from its strict scrutiny standard, as established in Sherbert and Yoder and elected a new standard regarding burdens on religion in the landmark Employment Div. v. Smith.37  The statute at issue in Smith was an Oregon law that “prohibit[ed] the knowing or intentional possession of a ‘controlled substance’ unless the substance ha[d] been prescribed by a medical practitioner.”38  Violators of this provision would be “guilty of a Class B felony” if they possessed a substance listed on Schedule I, which happened to include “peyote, a hallucinogen derived from the plant Lophophora williamsii Lemaire.”39

In this case, “[r]espondents . . . Smith and . . . Black . . . were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members.”40  When they applied for unemployment compensation at Employment Division, they were “ineligible for benefits because they had been discharged for work-related ‘misconduct.’”41

The Court, while not explicitly acknowledging its eschewing of strict scrutiny in favor of a new standard, reasoned that it has “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”42  It invoked its ruling in Reynolds v. United States,43 in which it “rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice.”44  Thus, the Court concluded in that case, “[t]o permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”45  Further, the Court looked to United States v. Lee,46 where it held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’ on the ground that the law proscribes . . . conduct that his religion . . . prescribes.”47  At issue in that case was an Amish employer who, “on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs.”48  Because the regulation there was a “neutral, generally applicable law to religiously motivated action[,]” the Court found no problem with the regulation.49  To bolster its reasoning, it observed “[t]here would be no way . . .to distinguish the Amish believer’s objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes.”50

In applying the standard of neutrality and general applicability, the Court acknowledges that the “only decisions in which [it] ha[s] held that the First Amendment bars [such laws]” occurred when dealing with not only Free Exercise Clause concerns, but Free Exercise Clause “in conjunction with other constitutional protections, such as freedom of speech and of the press.”51  Because Smith did “not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right,” the Court was comfortable in applying “the rule to which [it] ha[s] adhered ever since Reynolds.”52  For the Court to have more seriously considered the Sherbert approach, Mr. Smith would have at least needed a “contention that Oregon’s drug law represent[ed] an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs.”53  Writing for the majority, Justice Scalia asserts that “[t]he government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’”54  Further, he notes that “[t]o make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’—permitting him, by virtue of his beliefs, ‘to become a law unto himself,’—contradicts both constitutional tradition and common sense.”55

Moreover, Justice Scalia asserts that the Sherbert “compelling government interest” test is inapplicable because, unlike in the case at hand, what it produces in the fields of race and speech—”equality of treatment and an unrestricted flow of contending speech—are constitutional norms; what it would produce here—a private right to ignore generally applicable laws—is a constitutional anomaly.”56  In response to push back from Justice O’Connor suggesting that “[t]here is nothing talismanic about neutral laws of general applicability,” Justice Scalia contends that the Court has “held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling-interest analysis under the Equal Protection Clause;”57 similarly, in the realm of speech, the Court has “held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling-interest analysis under the First Amendment.”58

In further advancing his reasoning as to not applying Sherbert, Justice Scalia claims it is not “possible to limit the impact of respondents’ proposal by requiring a ‘compelling state interest’ only when the conduct prohibited is ‘central’ to the individual’s religion.”59  He opines that “[i]t is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.”60  Moreover, “[j]udging the centrality of different religious practices is akin to the unacceptable ‘business of evaluating the relative merits of differing religious claims.’”61  The judiciary is not equipped “to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”62

Yet another reason for Justice Scalia’s distaste for the application of Sherbert to Smith is that “[i]f the ‘compelling interest’ test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded.”63  However, the issue, in his view, is that “if ‘compelling interest’ really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test.”64  If we adopt this standard, he posits, it would be akin to “courting anarchy, [noting] that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.”65  The standard is impracticable because the country is “made up of people of almost every conceivable religious preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.”66  Justice Scalia foresees that applying Sherbert here would open the prospect of the following:

Constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.67

In Justice Scalia’s view, the “First Amendment’s protection of religious liberty does not require” such exemptions.68

Justice Scalia concluded his argument by noting the importance of the political process in crafting laws and distinguishing ones that are “permitted, or even . . . desirable” from ones that are “constitutionally required.”69  He concedes that although “those religious practices that are not widely engaged in” may be placed at “relative disadvantage,” that outcome is an “unavoidable consequence of democratic government” and is preferable “to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of religious beliefs.”70

Thus, in a case “most considered relatively insignificant,” the Court demolished the free-exercise standard “it had clearly and repeatedly upheld since 1963.”71

III. How Did Other Justices Address Smith in Fulton?

In Fulton v. City of Philadelphia,72 the government of the city of Philadelphia “stopped referring children to [Catholic Social Services] upon discovering that the agency would not certify same-sex couples to be foster parents due to its religious beliefs about marriage.”73  The city claimed it would renew its contract with the agency under one condition: that it agree to certify same-sex couples.74  Aside from the key question in this case of “whether the actions of Philadelphia violate[d] the First Amendment,” the Court was also called to reconsider the precedential value of Employment Division v. Smith.75

A. Chief Justice Roberts’ Approach 

In a case that many were anticipating would either directly overrule or affirm the Court’s controversial Smith decision, Chief Justice Roberts, issuing the Court’s majority opinion, subscribed to the view that Fulton “[fell] outside Smith.”76  The facts of this case, in the eyes of the majority, did not meet the threshold of Smith’s test of neutrality and general applicability.77  Justice Roberts’ argument hinged on the assertion that “[a] law is not generally applicable if it ‘invite[s] the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.’”78  Furthermore, a law “lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”79

Applying these principles to Fulton, Chief Justice Roberts noted that section 321 of Philadelphia’s standard foster care contract is not “generally applicable.”  Section 321 specifies that a “provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for services based upon . . . their sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”80  As stated in the policy section, a system of individual exemptions is available here at the “sole discretion” of the Commissioner, and the “City has made clear that the Commissioner ‘has no intention of granting an exception’ to CSS.”81  Per Smith, however, the city “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.”82  Standing alone, “[t]he creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it ‘invite[s]’ the government to decide which reasons for not complying with the policy are worthy of solicitude—here, at the Commissioner’s ‘sole discretion.’”83

Chief Justice Roberts’ opinion demonstrates that he placed more emphasis on reviewing “whether Philadelphia’s actions were permissible” than on deciding whether to overrule Smith.84  In defense of his position, he claims that “because the City [had] burdened the religious exercise of CSS through policies that [did] not meet the requirement of being neutral and generally applicable[,]” the agency demonstrated “that the City’s actions [were] subject to ‘the most rigorous of scrutiny’” and that, as a result, “regardless of Smith,” the Court had to examine the City’s actions under the strictest scrutiny.85

B. Justice Alito’s Approach

Joined by Justices Thomas and Gorsuch, Justice Alito criticized the Court’s decision in Smith, asserting that it abruptly pushed aside nearly thirty years of precedent and held that the First Amendment’s Free Exercise Clause tolerates any rule that categorically prohibits or commands specified conduct so long as it does not target religious practice.”86  Justice Alito countered Chief Justice Roberts’ majority opinion by asserting that Smith “[was] ripe for reexamination.”87

Justice Alito begins his argument by presenting multiple hypotheticals demonstrating the dangers posed by Smith.  Among possibilities that Smith would permit include prevention of the celebration of Catholic masses, the outlawing of kosher and halal slaughter, a categorical ban of the circumcision of infants, and a prohibition of any form of head covering in court.88  He proceeds to note that the issue in Fulton is almost equally as outlandish: “an ultimatum [by the city] to an arm of the Catholic Church: Either engage in conduct [contrary to Church teaching] or abandon a mission that dates back to the earliest days of the Church—providing for the care of orphaned and abandoned children.”89

Reintroducing the notion that “[o]ne of the questions [the Court] accepted for review [was] ‘[w]hether . . . Smith should be revisited[,]” Justice Alito posits that the Court should, contrary to Chief Justice Roberts’ view, “confront that question.”90  Further distinguishing his concurrence from the majority opinion, Justice Alito asserts that “Smith’s holding about categorical rules does not apply if a rule permits individualized exemptions.”91  Despite “the majority[‘s] seiz[ing] on the presence in the City’s standard contract of language giving a City official the power to grant exemptions[,] . . . [it] . . . has never granted such an exemption and has no intention of handing one to CSS[.]”92  Justice Alito criticizes the majority for “revers[ing] the decision . . . because the contract supposedly confers [the] never-used power” of granting exemptions.93  He points out that “if the City wants to get around [the Court’s] decision, it can simply eliminate the never-used exemption power” and “the parties will be back where they started.”94

Justice Alito continues by referencing the inability of Smith’s interpretation to “be squared with the ordinary meaning of the text of the Free Exercise Clause or with the prevalent understanding of the scope of the free-exercise right at the time of the First Amendment’s adoption.”95  He appeals to Smith’s unpopularity “[w]hen [it] reinterpreted the Free Exercise Clause, [and] four justices . . . registered strong disagreement . . . [and five sitting Justices] called for [it] to be reexamined.”96  Moreover, “[o]n two separate occasions, Congress, with virtual unanimity, expressed the view that Smith’s interpretation [was] contrary to our society’s deep-rooted commitment to religious liberty.”97  In fact, “[i]n enacting the Religious Freedom Restoration Act of 199398 . . . and the Religious Land Use and Institutionalized Persons Act of 2000,99 . . . Congress tried to restore the constitutional rule in place before Smith.”100  Unfortunately to Justice Alito, however, those laws “do not apply to most state action[] and . . . leave huge gaps.”101

After exposing the issues apparent with the Court’s ruling in Smith, Justice Alito examines the pre-Smith world of Sherbert and suggests we should return to that precedent.102  He observes that the “test distilled from Sherbert—that a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest—was the governing rule for 27 years.”103  For instance, in Wisconsin v. Yoder104 “in holding that the Amish were entitled to a special exemption, the Court expressly rejected the interpretation of the Free Exercise Clause that was later embraced in Smith.”105  Demonstrating this claim, Justice Alito demonstrates the Yoder court held the following:

“[T]here are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability”; “[a] regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion”; insisting that the Amish children abide by the compulsory attendance requirement was unconstitutional even though it “applie[d] uniformly to all citizens of the State and d[id] not, on its face, discriminate against religions of a particular religion, [and was] motivated by legitimate secular concerns.”106

The Court continued to apply this anti-neutrality principle in Thomas v. Review Bd. Of Ind. Employment Security Div., Hobbie v. Unemployment Appeals Comm’n of Fla., and Frazee v. Illinois Dept. of Employment Security.107 

Even the cases which “applied Sherbert but found no violation” did not question “the validity of Sherbert’s interpretation of the free-exercise right.”108

To further demonstrate why he believes Smith was incorrectly decided, Justice Alito then demonstrates the similarities between Smith and Sherbert in that “[j]ust as Adell Sherbert had been denied unemployment benefits due to conduct mandated by her religion (refraining from work on Saturday), Alfred Smith and Galen Black were denied unemployment benefits because of a religious practice (ingesting peyote as part of a worship service of the Native American Church).”109  Even the State “defended the denial of benefits under the Sherbert framework” and “never suggested . . . Sherbert should be overruled.”110  Rather, “the crux of its disagreement with Smith and Black and the [Oregon] Supreme Court was whether its interest in preventing drug use could be served by a more narrowly tailored rule that made an exception for religious use by members of the Native American Church.”111  Even more fascinating perhaps, “the Smith majority wanted no part of that question[;] [i]nstead, without briefing or argument on whether Sherbert should be cast aside, the Court adopted what it seems to have thought was a clear-cut test that would be easy to apply[.]“112  Further criticizing the majority’s approach in Smith, Justice Alito buttresses his argument by asserting that the Court “was satisfied that its interpretation represented a ‘permissible’ reading of the text . . . and [] did not . . . stop to explain why.”113

Justice Alito proceeds in his concurrence by demonstrating the bipartisan nature of the vociferous response to Smith, emphasizing that Senator Schumer’s Religious Freedom Restoration Act was “passed in the House without dissent, was approved in the Senate by a vote of 97 to 3, and was enthusiastically signed into law by President Clinton.”114  Despite the Court’s finding in City of Boerne115 “that Congress lacked the power under the 14th Amendment to impose [RFRA] on the States, Congress responded by enacting the Religious Land Use and Institutionalized Persons Act (RLUIPA)” to serve as at least some sort of counterweight to the unpopular Smith regime.116  RLUIPA served this end in the context of land use and prison regulations, passing both Houses of Congress “without a single negative vote and, like RFRA, was signed by President Clinton.”117  Although RFRA and RLUIPA “have restored part of the protection that Smith withdrew, . . . they are both limited in scope and can be weakened or repealed by Congress at any time.”118  Thus, in Justice Alito’s view, they are “no substitute for a proper interpretation of the Free Exercise Clause.”119

Justice Alito’s vision for Free Exercise jurisprudence prioritizes beginning “with the constitutional text.”120  Ultimately, his criticism of Smith turns on the Court’s “shockingly little attention [paid] to the text of the Free Exercise Clause.”121  He opts for interpreting “what readers would have understood [the words of the Free Exercise Clause to have meant] when adopted” over asking “whether it was ‘permissible’ to read the text” to have a particular meaning.122  Using Justice Scalia’s opinion in District of Columbia v. Heller123 as a guidepost, Justice Alito’s technical analysis of the definitions of the words comprising the Free Exercise clause at the time of its enactment leads him to conclude that “the ordinary meaning of ‘prohibiting the free exercise of religion’ was (and still is) forbidding or hindering unrestrained religious practices or worship.”124  In his view, this interpretation in no way comports with Smith’s “distinction between laws that are generally applicable and laws that are targeted.”125  The so-called “equal treatment interpretation” is neither rooted in the Free Exercise Clause’s ordinary meaning, nor does it purport to attempt to—in Justice Alito’s view.126  In fact, he believes that this interpretation misses the point of the Free Exercise Clause entirely.  “[T]hose who wish to engage in the ‘exercise of religion’ [are supposed to have] the right to do so without hindrance”; the clause does not address “persons not in this group.”127

Extending the logic of Smith to applications in other amendments, Justice Alito hypothesizes “[if] Congress or a state legislature adopted a law banning counsel in all litigation, civil and criminal[,] [w]ould anyone doubt that this law would violate the Sixth Amendment rights of criminal defendants [to assistance of counsel]?”128  Additionally, “[w]ould there be any question that a law abolishing juries in all civil cases would violate the rights of parties in cases that fall within the [scope of] the Seventh Amendment[,]” which grants the right of trial by jury to parties in civil suits at common law?129  In engaging in the thought exercise of displaying the absurdity of the results of his hypothetical, Justice Alito attempts to show that “Smith’s interpretation conflicts with the ordinary meaning of the First Amendment’s terms.”130

In further criticizing the “equal treatment” interpretation of the Free Exercise Clause, Justice Alito posits that Congress would have at least alluded to equal treatment in the text of the clause if that were the objective.131  Moreover, “it would have been simple to cast the Free Exercise Clause in equal-treatment terms, [so] why would the state legislators who voted for ratification have read the Clause that way?”132  As evidence that the equal treatment interpretation was not the interpretation of the framers, Justice Alito cites Art. I, § 9, cl. 6; Art. IV, § 2, cl. 1; Art. V; and the religious liberty provisions of colonial charters and state constitutions as constitutional provisions that adopted language akin to what one would expect in such a regime.133  To him, “[t]he contrast between these readily available anti-discrimination models and the language in the First Amendment speaks volumes.”134

Yet another of Justice Alito’s anti-Smith arguments includes an allusion to the development of the country’s historical record since the time of the Smith ruling.  “When Smith was decided,” he argues, “scholars had not devoted much attention to the original meaning of the Free Exercise Clause, and the parties’ briefs ignored this issue, as did the opinion of the Court.”135  However, much more scholarly work on the historical basis for the Free Exercise Clause has come to light since then, and, in his view, “we are now in a [better] position to examine how [it] was understood when the First Amendment was adopted.”136  By the time various states signed early colonial charters and agreements in 1789, “freedom of religion enjoyed broad protection, and the right was ‘universally said to be an unalienable right.’”137  In analyzing constitutional provisions at the founding, the predominant model among different states “extends broad protection for religious liberty but expressly provides that the right does not protect conduct that would endanger ‘the public peace’ or ‘safety.’”138  This model, per Justice Alito, is “antithetical” to Smith because “[i]f . . . the free-exercise right does not require any religious exemptions from generally applicable laws, . . . a public-peace-or-safety carveout would [hardly] be necessary.”139  Hypothetically, if generally applicable “laws are thought to be sufficient to address a particular type of conduct engaged in for a secular purpose, why wouldn’t they also be sufficient to address the same type of conduct when carried out for a religious reason?”140

To justify an answer to this question, Smith proponents must stretch the “ordinary meaning of offenses that threaten public peace or safety . . . beyond the breaking point to encompass all violations of any law.”141

Last of Justice Alito’s primary arguments is that “Smith’s treatment of the free-exercise right is fundamentally at odds with how we usually think about liberties guaranteed by the bill of rights.”142  “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials . . . .”143  However, Smith determined that the political process is a better vehicle for protection of freedom of religion than the courts; thus, “the free exercise of religion does not receive the judicial protection afforded to other, favored rights.”144

Upon his definitive conclusion that Smith should be overruled, Justice Alito posits that the Court should replace it with “the standard that Smith replaced“—that of Sherbert v. Verner.145  Although he seems open to rephrasing or supplementing such a rule, he feels that Fulton was not the occasion to do so “because Philadelphia’s ouster of CSS from foster care work simply does not further any interest that can be properly protected[,] . . . [since] CSS’s policy has not hindered any same-sex couples from becoming foster parents, and there is no threat that it will do so in the future.”146

C. Justice Gorsuch’s Approach 

In an analysis focused on justiciability issues in Smith, Justice Gorsuch points to the endless litigation resulting from the Court’s “indecision” on Smith in Fulton.147  For instance, in the case of Jack Phillips,148 “[a]fter being forced to litigate all the way to the Supreme Court, . . . all that victory assured [him] was a new round of litigation—with officials now presumably more careful about admitting their motives.”149  Outside the context of potential “targeting” cases, in COVID-19 litigation in the nine months prior to Fulton, the Supreme Court “had to intervene at least half a dozen times to clarify how Smith works.”150

Justice Gorsuch reiterates Justice Alito’s assertion that “[n]o fewer than ten Justices—including six sitting justices—have questioned [Smith’s] fidelity to the Constitution. 151 Despite the uncertainty with what would follow post-Smith, he remains unconcerned, claiming that “the Court should overrule it now, set [the Court] back on the correct course, and address each case as it comes.”152 

IV. What Did Justice Barrett Ask in Fulton, and Why?

Unlike Justice Gorsuch, Justice Barrett seems reluctant to overturn Smith without a sufficient replacement for it.153  Unlike Justice Alito, she “find[s] the historical record more silent than supportive on the question whether the founding generation understood the First Amendment to require religious exemptions from generally applicable laws in at least some circumstances”; rather she favors the textual and structural arguments because she finds it “difficult to see why the Free Exercise Clause—long among the First Amendment freedoms—offers nothing more than protection from discrimination.”154  Ultimately, Justice Barrett felt that because “the government contract at issue [in Fulton] provide[d] for individualized exemptions from its nondiscrimination rule,” strict scrutiny was triggered, and the City could not meet the threshold.155  Thus, she did not address Smith, save for posing a few questions in a future case in which it could, hypothetically, be implicated.

Justice Barrett’s first question in Fulton was simple: “[W]hat should replace Smith?”156  However, she remains “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.”157  Second, if Smith were overturned, she continues, “[s]hould entities like Catholic Social Services . . . be treated differently than individuals?”158  Third, “[s]hould there be a distinction between indirect and direct burdens on religious exercise?”159  Fourth, “[w]hat forms of scrutiny should apply?”160  Fifth, “if the answer is strict scrutiny, would pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way?”161

V. In Light of Justice Barrett’s Questions, How Should We Approach a Post-Smith Regime?

Smith’s result shocked the consciences of many legal minds, leading some to deem it a “travesty,” a “tragedy,” an “assault,” and a “dastardly and unprovoked attack.”162  The Court’s ruling, to those with such a view, signaled a relegation of “our national commitment to the free exercise of religion to the sub-basement of constitutional values.”163  Perhaps making the ruling even more unexpected, “no one involved in the case, party or amicus, urged the Supreme Court to abandon the compelling state interest test for the neutral law of general applicability test.”164  In fact, “[f]ifty-five legal scholars from around the nation petitioned the Court to rehear the case” on account of the lack of briefing and the lack of indication that the Court was even considering what it ultimately decided.165  Nonetheless, while many are quick to criticize Smith and its progeny, critics are not united in their conception of how a post-Smith world should look.  Assuming that Smith is overruled, the following appear to be the most viable options.

A. Return to Sherbert?

The most natural and easily explainable of the options in a post-Smith regime is to return to the world that existed before Smith: namely, that of Sherbert and Yoder.  This option does not require extensive explanation, as it merely would revitalize the test that “a law that imposes a substantial burden on the exercise of religion must be narrowly tailored to serve a compelling interest . . . .”166  Proponents of this model argue that it “properly holds that only the prevention of significant harm can justify prohibiting religiously motivated conduct.”167  Further, they argue, because “the right to practice religion is a fundamental right[, and] [s]ubstantial burdens on fundamental rights generally trigger the compelling-interest test,” it is apt.168

Analogizing to the context of freedom of speech and association, “as-applied First Amendment challenges . . . [that] seek exemption from facially neutral and generally applicable laws . . . support the idea of exemptions, but more specifically . . . application of the compelling-interest test.”169

Additionally, proponents posit that the appeal of the compelling-interest test is its workability.  Congress, in enacting RFRA, itself found the test useful “for striking sensible balances between religious liberty and competing prior governmental interests.”170  For instance, pre-Smith, “the government had proved compelling interests in free-exercise cases involving racial equality in education,171 tax collection,172 and the military draft[;]173 [b]ut the Court had always affirmed that the government had to show that the conduct ‘posed some substantial threat to public safety, peace or order.’”174  Analytics also favor the compelling-interest test, as fear of “anarchy” should be allayed by the fact that “from 1990 through 2003 . . . free-exercise claims, including RFRA claims, were the least likely to invalidate the government action: the government won 59 percent of the time, 74 percent if the category were limited to challenges to generally applicable laws.”175

Critics of returning to Sherbert argue that the Sherbert-era did not actually see the Court applying strict scrutiny, as it was supposed to.  Rather, in reality, it merely performed a “balancing test,” considering the burden “in light of government interest and government interest in light of burden . . . .”176  The issue with the balancing test is not the test itself, but “that the language of the test invoked by the Court during the Sherbert era . . . does not speak of balancing [at all].”177  In other words, true strict scrutiny was not the reality of the Sherbert (and RFRA) era.  Thus a return to the compelling-interest test would merely bring about a “squishier” version of strict scrutiny, unless it were “applied faithfully,” at which point there would be “far more exemptions than society would be willing to tolerate.”178  Furthermore, from a justiciability and functionality standpoint, Sherbert should not be the desired test because “judges working with precedents . . . calling for strict scrutiny in exemptions cases often have an incentive to apply some undefined level of lesser scrutiny while writing decisions in the language of strict scrutiny.”179  The incentive also exists for judges to “avoid the scrutiny issue altogether by finding no cognizable burden on religion as a threshold matter,” which certainly discounts the importance of religious practice.180  Ultimately, Sherbert critics feel that “Sherbert-era exemption doctrine was grounded in a misrepresentation of past precedent, promised a high level of protection that it often failed to deliver, and gave courts an incentive to make value judgments about different religions.”181  Thus, although a return to Sherbert would be more favorable than the current Smith regime, another option should replace Smith. 

B. Consider an “Adequate Alternatives” Principle for Religion?

Perhaps one of the reasons for the apparent disconnect between the text of Sherbert and its application is the vagueness surrounding what constitutes a “substantial burden.”  To better understand its meaning—and to “add[] distinctive substantive content” to the doctrine, one can draw from free speech, abortion, travel, and Second Amendment jurisprudence in the form of an “adequate alternatives” analysis.182  Applying this framework to the context of religion, “a (non-targeted) . . . burden . . . [is] ‘substantial’ . . . if it leaves . . . no adequate alternatives. . . [that] let [one] pursue the interest served by that liberty (i) to about the same degree, and (2) at not much greater cost, than [otherwise].”183  This test can supplant the compelling-interest test by determining “when one form of religious exercise is an ‘adequate’ alternative to another . . . [a]nd . . . whether the one form of exercise achieves the interests served by religious conduct to the same degree.”184

Employing a definition of “religion” that includes (1) harmony with the transcendent, (2) pursuit of ultimate meaning, and (3) fulfilling personal identity, “the criteria for ‘adequate’ alternatives will be internal to the claimant’s own creed or code.”185  What will suffice as “adequate” will be “just as good religiously, in the claimant’s view.”186  A more narrowly tailored version of the adequate alternatives principle to religion—in other words, a more robust “substantial burden test”—is as follows: 

State action that prevents, prohibits, or raises the cost of religious exercise imposes a “substantial burden” if it does not leave you another way you could realize your religion to about the same degree as you could by the now-burdened exercise, and at not much greater cost than you could by that means.187

In other words, under this approach, the “substantial burdens increase the cost to you of living your faith to about the same degree as you could before.”188  

The main virtues of this test are that: “(1) It yields more-compelling outcomes than the proposals offered to date.  (2) It strikes the right balance between blind deference to claimants and violations of the religious questions doctrine.  And (3) it resolves several questions that remain open in the case law on substantial burdens.”189

However, critics of this test note that “[b]y their nature, burdens on religious practice often leave no adequate alternatives.”190  “[B]elievers who are prohibited from acting on their belief cannot simply change their belief: [for example,] if Native Americans are barred from ingesting using peyote in worship, they can’t switch to wine.”191  Furthermore, it is not adequate for the government to “say they still have the ‘alternative’ of following their other beliefs.”192  An example of this is present in Holt v. Hobbs,193 where the Court rejected the argument that a Muslim inmate suffered no substantial burden “because he could still use a prayer rug, receive Islamic literature, correspond with a religious advisor, and observe religious diets and holidays.”194  Rather, the substantial burden inquiry “asks whether the government has substantially burdened religious exercise, . . . not whether the . . . claimant is able to engage in other forms of religious exercise.”195  The adequate alternatives test suffers as well when analogizing free exercise to free speech in that “telling the free-exercise claimant to practice its other beliefs instead of this one would be like telling the free-speech claimant to communicate other messages instead of this one”; the issue is that “religious practices are rarely fungible.”196  Nonetheless, Professors Laycock and Berg acknowledge that “[t]here are cases in which courts can assess the adequacy of alternative means of exercising religion” but that alternatives are inadequate in the following contexts: “when a law penalizes a practice stemming from religious tenets . . ., interferes with a religious organization’s internal governance, or significantly burdens a religious organization’s ability to provide a service.”197  Thus, although the adequate alternatives principle could be more beneficial than a return to Sherbert, its problems suggest we should continue to search for a different post-Smith approach.

C. Pursue a Heightened Scrutiny Standard

From his opinion in Smith, Justice Scalia omitted “the fact that the Court does apply an intermediate level scrutiny to . . . [generally applicable] laws [unconcerned with regulating speech that have the effect of interfering with speech] under United States v. O’Brien.”198  In the same way that, in the eyes of Justice Scalia, Sherbert strict scrutiny was an anomaly, “so too is the complete lack of heightened scrutiny prescribed by Smith.”199

Given that heightened scrutiny should apply in the context of religion, the Court could take the following two-step approach [proposed by Professor Oleske], which does not call for either judicial determinations about the relative import of different religious practices or judicial balancing informed by such determinations: 

Question 1: Would the application of the legal rule at issue impose a substantial secular burden on an exemption claimant who engages in certain conduct or refrains from certain conduct for sincere, religiously motivated reasons?  This inquiry should not include any judicial evaluation of the religious significance of the particular behavior at issue, but instead, assess only ‘the substantiality of the civil penalties triggered by religious exercise.’200  If the adverse legal consequences of engaging in the religiously motivated behavior at issue are not trivial, and if the exemption claimant can show a sincere religious belief is motivating the behavior, the claimant should be permitted to move forward.

Question 2: Does the state have an actual and substantial interest in denying an exemption to the claimant?  This inquiry would put the burden on the state to show that it has more than a de minimis interest in denying the claimed exemption.  To meet this burden, the state would have to explain why its interest could not easily be served through means other than denying the exemption.  If the state cannot meet its burden, the religious claimant is entitled to an exemption.201

Despite the reality that “courts would still be doing some weighing under this approach,” it is not the same as “[b]alancing two interests against each other.”202  Rather, the two interests are separately weighed “to determine whether or not they meet a pre-set threshold.”203  In effect, this test posits that “government should not lightly impose burdens on the exercise of anyone’s religion, but if [it] . . . has solid and legitimate reasons for declining to exempt religious objectors from complying with a general law, courts should defer to such democratic judgments.”204

Critics of a heightened scrutiny approach, however, express concern that “intermediate scrutiny often declines into excessive deference” and “[i]f lower courts have underenforced the compelling-interest test, they could just as easily underenforce intermediate scrutiny.”205  Professors Laycock and Berg proceed to suggest that “[i]f the Court wants anything less than strict scrutiny for challenges to generally applicable laws . . . then to prevent underenforcement, it must give clear instructions about the demanding nature of the intermediate review.”206  In the case of Professor Oleske’s proposed heightened scrutiny test, clarity should not be an issue.  Ultimately, if the Court decides to overrule Smith, Professor Oleske’s two-step test appears to fit the combination of most straightforward, justiciable, and issue-less of the options.

With widespread criticism of Smith and newfound understanding that Sherbert was applied differently in practice than in theory, falling somewhere between the two may be the most optimal landing spot for a new, post-Smith test.207  Professor Oleske’s test would be more practical in its ability to “actually deliver on what the legal standard promises in terms of protection, a critical virtue for the rule of law,“ and “avoid engaging in more than a minimal examination of claimed religious burdens, thus reducing the establishment perils that are inherent in the Sherbert-Yoder . . . regimes.”208  This test is also comfortably parallel to that in free speech “for incidental restrictions on expressive conduct by requiring the government to show (1) that it has a substantial interest in denying the claimed exemption and (2) that the denial is narrowly tailored to achieving that interest.”209  Although “there will be challenging cases that require courts to build out the new doctrine, . . . nothing . . . indicates that it is a task beyond the institutional competence of the courts.”210  In fact, “[i]t is in the core competencies of judges . . . to articulate the scope and limits of constitutional provisions and the balance of their interactions”; this job is precisely what they are called to do.211  This test would also be no “ad hoc balancing of relative social costs and benefits,” as Sherbert in some ways effectively was.212  Ultimately, if the Court reconsiders Smith, it should “guarantee a constitutional floor of modest religious exemption rights,” interpreting the Free Exercise Clause as “protecting against incidental burdens on religion that the government could easily lift without compromising legitimate state interests.”213  Professor Oleske’s two-step heightened scrutiny test best fits this mold and should be the most strongly considered by the Court.

Conclusion

“For over five decades, the Supreme Court’s free exercise jurisprudence has been a doctrinal disaster area.”214  The country has found itself in the exact position Justice Scalia warned against—a “confusing and rather ragtag body of law” on religious exemptions after over a quarter-century of Smith.215  While the call of this analysis was not to directly answer whether Smith should be overturned, it is sympathetic to the arguments that it should.  Justice Gorsuch’s desire to overrule Smith now, “set [the Court] back on the correct course, and address each case as it comes” is appealing to an extent.216  However, Justice Barrett’s suggestion that the Court should be aware of the different options available to the Court in such a circumstance—at the very least to ensure that the metaphorical “cure” is no worse than the disease—is reasonable.  Regardless of whether the Court should overrule Smith, the time is ripe for the Court to, at a minimum, revisit it and directly address its place in free exercise jurisprudence.  If the Court indeed decides overruling Smith is the route it wants to take, it has more options than merely returning to Sherbert and Yoder world.  As a matter of preference, Professor Oleske’s heightened scrutiny two-step framework seems to offer the most logically coherent and comprehensive framework and can even incorporate some of the ample alternative analysis proffered by Professor Girgis.21  As for next steps, a more rigorous analysis of Professor Oleske’s framework to his five scenarios would be particularly useful.

  1. * J.D. Candidate, Notre Dame Law School, 2023; B.S.M., Tulane University, 2020. Thanks to Professors Sherif Girgis, Rick Garnett, and Stephanie Barclay for assisting me in my research and to the Notre Dame Journal of Law, Ethics & Public Policy for its editorial prowess. A.M.D.G. ↩︎
  2. 141 S. Ct. 1868, 1882 (2021) (Barrett, J., concurring). ↩︎
  3. 494 U.S. 872 (1990). ↩︎
  4. Fulton, 141 S. Ct. at 1881–83 (Barrett, J., concurring) (citing Smith, 494 U.S. at 872). ↩︎
  5. Id. ↩︎
  6. Id. ↩︎
  7. 374 U.S. 398 (1963). ↩︎
  8. See id. at 399. ↩︎
  9. See id. at 399–400. ↩︎
  10. See id. (internal quotations omitted). ↩︎
  11. See id. ↩︎
  12. Id. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963) (emphasis added)). ↩︎
  13. Sherbert v. Verner, 374 U.S. 398, 403–04 (1963). ↩︎
  14. Id. at 404. ↩︎
  15. Id. at 406. ↩︎
  16. Id. (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). ↩︎
  17. Id. at 407 (emphasis added). ↩︎
  18. 366 U.S. 599 (1961). ↩︎
  19. Sherbert, 374 U.S. at 408. ↩︎
  20. Id. (internal quotations omitted). ↩︎
  21. Id. at 408–09. ↩︎
  22. Id. at 409. ↩︎
  23. Id. ↩︎
  24. Wisconsin v. Yoder, 406 U.S. 205 (1972). ↩︎
  25. Id. at 207. ↩︎
  26. Id. ↩︎
  27. Id. ↩︎
  28. Id. ↩︎
  29. Id. ↩︎
  30. Wisconsin v. Yoder, 406 U.S. at 209. ↩︎
  31. Id. at 213. ↩︎
  32. Id. at 214 (emphasis added). ↩︎
  33. Id. ↩︎
  34. Id. at 215. ↩︎
  35. Id. at 218. ↩︎
  36. Yoder, 406 U.S. at 218. ↩︎
  37. 494 U.S. 872 (1990). ↩︎
  38. Id. at 874; Or. Rev. Stat. § 475.992(4) (1987). ↩︎
  39. Or. Rev. Stat. § 475.992(4)(a); Or. Admin. R. 855-80-021(3)(s) (1988). ↩︎
  40. Id. at 874. ↩︎
  41. Id. ↩︎
  42. Id. at 878–79. ↩︎
  43. 98 U.S. 145 (1879). ↩︎
  44. Emp. Div. v. Smith, 494 U.S. 872, 878–79 (1990). ↩︎
  45. Id. (quoting Reynolds v. United States, 98 U.S. 145, 166–67 (1879)). ↩︎
  46. 455 U.S. 252 (1982). ↩︎
  47. Smith, 494 U.S. at 879 (quoting Lee, 455 U.S. at 263, n.3) (emphasis added). ↩︎
  48. Id. at 880. ↩︎
  49. Id. at 881. ↩︎
  50. Id. at 880. ↩︎
  51. Id. at 881. ↩︎
  52. Id. at 882. ↩︎
  53. Smith, 494 U.S. at 882. ↩︎
  54. Id. at 885 (quoting Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988)). ↩︎
  55. Smith, 494 U.S. at 885 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1879)). ↩︎
  56. Smith, 494 U.S. at 886. ↩︎
  57. Id. See Washington v. Davis, 426 U.S. 229 (1976) (police employment examination). ↩︎
  58. Smith, 494 U.S. at 886; see Citizen Publ’g Co. v. United States, 394 U.S. 131, 139 (1969) (antitrust laws). ↩︎
  59. Smith, 494 U.S. at 886; cf. Lyng, 485 U.S. at 474–76 (Brennan, J., dissenting). ↩︎
  60. Smith, 494 U.S. at 886–87. ↩︎
  61. Id. at 887 (quoting Lee, 455 U.S. at 263, n.2) (Stevens, J., concurring). ↩︎
  62. Id. (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)). ↩︎
  63. Id. at 888. ↩︎
  64. Id. ↩︎
  65. Id. ↩︎
  66. Smith, 494 U.S. at 888 (quoting Braunfeld v. Brown, 366 U.S. 599, 606 (1961)) (emphasis added). ↩︎
  67. Id. at 888–89 (1990) (internal citations omitted). ↩︎
  68. Id. ↩︎
  69. Id. at 890 (emphasis added ↩︎
  70. Id. ↩︎
  71. Michael P. Farris and Jordan W. Lorence, Employment Division v. Smith and the Need for the Religious Freedom Restoration Act, 6 Regent U. L. Rev. 65, 65 (1995). ↩︎
  72. 141 S. Ct. at 1868. ↩︎
  73. Id. at 1874. ↩︎
  74. See id. ↩︎
  75. Id. ↩︎
  76. Id. at 1877. ↩︎
  77. See id. ↩︎
  78. Id. (quoting Emp. Div. v. Smith, 494 U.S. 872, 884 (1990) (quoting Bowen v. Roy, 476 U.S. 693 (1986)). ↩︎
  79. Id. See 723 F. Supp. at 542–46. ↩︎
  80. 141 S. Ct. at 1878 (quoting Supp. App. To Brief for city Respondents 16–17) (emphasis added). ↩︎
  81. Id. (quoting CSS. App. to Pet. for Cert. 168a). ↩︎
  82. Id. (internal quotation marks omitted) (quoting Roy, 476 U.S. at 708). ↩︎
  83. Fulton, 141 S. Ct. at 1879 (quoting Smith, 494 U.S. at 884) (emphasis added). ↩︎
  84. Fulton, 141 S. Ct. at 1881. ↩︎
  85. Id. see 723 F. Supp. at 546. ↩︎
  86. Fulton, 141 S. Ct. at 1883 (Alito, J., concurring). ↩︎
  87. Id. ↩︎
  88. Id. ↩︎
  89. Id. at 1884. ↩︎
  90. Id. at 1887. ↩︎
  91. Id. See Emp. Div. v. Smith, 494 U.S. 872, 884 (1990). ↩︎
  92. Fulton, 141 S. Ct. at 1887 (quoting Brief for City Respondents 36; App. to Pet. for Cert. 168a). ↩︎
  93. Fulton, 141 S. Ct. at 1887. ↩︎
  94. Id. ↩︎
  95. Id. at 1888. ↩︎
  96. Id. at 1889; see Kennedy v. Bremerton School Dist., 139 S. Ct. 634, 636–37 (2019) (Alito, J., joined by Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari); City of Boerne v. Flores, 521 U.S. 507, 566 (1997) (Breyer, J., dissenting). ↩︎
  97. Fulton, 141 S. Ct. at 1889. ↩︎
  98. 42 U.S.C. § 2000bb et seq. ↩︎
  99. 42 U.S.C. § 2000cc et seq. ↩︎
  100. Fulton, 141 S. Ct. at 1889. ↩︎
  101. Id ↩︎
  102. See id. ↩︎
  103. Id. ↩︎
  104. 406 U.S. at 234. ↩︎
  105. Fulton, 141 S. Ct. at 1890. ↩︎
  106. Id. (quoting 406 U.S. at 220) (emphasis added). ↩︎
  107. Fulton, 141 S. Ct. at 1891 (internal citations omitted). ↩︎
  108. Id. Such cases include United States v. Lee, 455 U.S. 252, 258 (1982), Gillette v. United States, 401 U.S. 437, 462 (1971), Bowen v. Roy, 476 U.S. 693, 700 (1986), Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988), O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987), Goldman v. Weinberger, 475 U.S. 503, 506 (1986). ↩︎
  109. Id. at 1891. ↩︎
  110. Id. ↩︎
  111. Id. at 1891–92. ↩︎
  112. Id. at 1892. ↩︎
  113. Id. (quoting Smith, 494 U.S. at 878). ↩︎
  114. Id. at 1893–4 (citing 139 Cong. Rec. 27239–27341, 26416; Remarks on Signing the Religious Freedom Restoration Act of 1993, 29 Weekly Comp. of Pres. Doc. 2377 (1993)). ↩︎
  115. City of Boerne v. Flores, 521 U.S. 507 (1997). ↩︎
  116. Fulton, 141 S. Ct. at 1894; see Religious Land Use and Institutionalized Persons Act of 2000, 114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000bb-2000bb-4). ↩︎
  117. Id. See S. 2869, 106th Cong. (2000); 42 U.S.C. §§ 2000cc-2000cc-5; 146 Cong. Rec. 16698, 16703, 16623 (2000); Presidential Statement on Signing the Religious Land Use and Institutionalized Persons Act of 2000, 36 Weekly Comp. of Pres. Doc. 2168 (2000). ↩︎
  118. 141 S. Ct. at 1894. ↩︎
  119. Id. ↩︎
  120. Id. (citing Martin v. Hunter’s Lessee, 1 Wheat. 304, 338-39 (1816); Chiafalo v. Washington, 140 S. Ct. 2316, 2323-26 (2020) (starting with the text of Art. II, § 1, before considering historical practice); Knick v. Twp. of Scott, 139 S. Ct. 2162, 2169-70 (2019) (beginning analysis with the text of the Takings Clause); Gamble v. United States, 139 S. Ct. 1960, 1964-65 (2019) (starting with the text of the Fifth Amendment before turning to history and precedent); City of Boerne, 521 U.S. at 519 (“In assessing the breadth of § 5’s enforcement power, we begin with its text.”)).  ↩︎
  121. 141 S. Ct. at 1894. ↩︎
  122. Id. at 1895. ↩︎
  123. District of Columbia v. Heller, 554 U.S. 570 (2008). ↩︎
  124. Fulton, 141 S. Ct. at 1896 (emphasis added). ↩︎
  125. Id. ↩︎
  126. Id. at 1898. ↩︎
  127. Id. at 1897 (parentheses removed). ↩︎
  128. Id. ↩︎
  129. Id. ↩︎
  130. Id. ↩︎
  131. Id. at 1898. ↩︎
  132. Id. ↩︎
  133. Id. For example, Art. I § 9, cl. 6 provides that “[n]o Preference shall be given by any Regulation of Commerce or Revenue to the ports of one State over those of another.” Under Art. IV, § 2, cl. 1, “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Article V provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” ↩︎
  134. Fulton, 141 S. Ct. at 1898. ↩︎
  135. Id. at 1899. ↩︎
  136. Id. ↩︎
  137. Id. at 1900 (quoting Michael McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1456 (1990)). ↩︎
  138. Id. at 1901. ↩︎
  139. Id. at 1903. ↩︎
  140. Id. (emphasis added). ↩︎
  141. Id. at 1905. ↩︎
  142. Id. at 1917. ↩︎
  143. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). ↩︎
  144. Fulton, 141 S. Ct. at 1917. ↩︎
  145. Id. at 1924. ↩︎
  146. Id. ↩︎
  147. Id. at 1930. ↩︎
  148. Mr. Phillips is the baker whose religious beliefs prevented him from creating custom cakes to celebrate same-sex weddings in Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719 (2018). ↩︎
  149. Fulton, 141 S. Ct. at 1930. The Court, per Justice Gorsuch, ruled for him on narrow grounds because “certain government officials responsible for deciding [his] compliance with a local public accommodations law uttered statements exhibiting hostility to his religion[.]” ↩︎
  150. Id. See, e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam); High Plains Harvest Church v. Polis, 141 S. Ct. 527 (2020). ↩︎
  151. Id. at 1931. ↩︎
  152. Id. (emphasis added). ↩︎
  153. See id. at 1882. ↩︎
  154. Id. ↩︎
  155. Id. at 1883. ↩︎
  156. Id. at 1882. ↩︎
  157. Id. at 1883. ↩︎
  158. Id. at 1883; cf. Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565 U.S. 171 (2012). ↩︎
  159. Id. Cf. Braunfeld v. Brown, 366 U.S. 599, 606–07 (1961) (plurality opinion). ↩︎
  160. Id. Compare Sherbert v. Verner, 374 U.S. 398, 403 (1963) (assessing whether government’s interest is “‘compelling’”), with Gillette v. United States, 401 U.S. 437 (1971) (assessing whether government’s interest is “substantial”).  ↩︎
  161. Id. See Emp. Div. v. Smith, 494 U.S. 872, 888–89 (1990). ↩︎
  162. Richard W. Garnett, The Political (and Other) Safeguards of Religious Freedom, 32 Cardozo L. Rev. 1815, 1816 (2011) (citing John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 138 (3d ed. 2011); W. Cole Durham, Jr. & Alexander Dushku, Traditionalism, Secularism, and the Transformative Dimensions of Religious Institutions, 1993 B.Y.U. L. Rev. 421, 448 (1993); Ira C. Lupu, The Trouble with Accommodation, 60 Geo. Wash. L. Rev. 743, 755 (1992); 137 Cong. Rec. 17,035–36 (1991) (statement of Rep. Solarz)). ↩︎
  163. Michael P. Farris & Jordan W. Lorence, Employment Division v. Smith and the Need for the Religious Freedom Restoration Act, 6 Regent U. L. Rev. 65, 66 (1995). ↩︎
  164. Id. at 72 n.27 (internal quotations omitted). ↩︎
  165. Id. at 75. ↩︎
  166. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1890 (2021). ↩︎
  167. Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, 2020-2021 Cato Sup. Ct. Rev. 33, 41 (2021) (emphasis added). ↩︎
  168. Id. ↩︎
  169. Id. See Brown v. Socialist Workers ‘74 Campaign Comm., 459 U.S. 87 (1982) (requiring an exemption where a law requiring disclosure of political parties’ campaign contributions and expenditures, valid on its face, would significantly deter political association); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (exempting the NAACP from an order, entered pursuant to a generally applicable corporation statute, requiring it to disclose its membership lists because those members would face public reprisals, causing the burden on association from disclosure to serve a compelling interest); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (ordering an exemption from a generally applicable nondiscrimination law, holding that the Scouts could not be penalized for dismissing a scoutmaster whose public statements and identity conflicted with the organization’s message); Hurley v. Irish-American Gay, Lesbian, and Bisexual Grp. of Boston, 515 U.S. 557 (1995) (holding that parade organizers did not have to admit marchers with a message inconsistent with the organizers’ message); NAACP v. Button, 371 U.S. 415 (1963) (invalidating, as applied to the NAACP, a Virginia statute that prohibited any organization from retaining a lawyer in connection with litigation as to which it was not a party and had no pecuniary right or liability). ↩︎
  170. Laycock & Berg, supra note 166, at 44 (internal quotations omitted) (quoting 42 U.S.C. § 2000bb(a)(5)). ↩︎
  171. Bob Jones Univ. v. United States, 461 U.S. 574 (1983). ↩︎
  172. United States v. Lee, 455 U.S. 252 (1982). ↩︎
  173. Gillette v. United States, 401 U.S. 437 (1971). ↩︎
  174. Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (quoting Sherbert v. Verner, 374 U.S. 398, 403 (1963)) (emphasis added) (internal quotations omitted). ↩︎
  175. Laycock & Berg, supra note 179 at 45; see Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 857-58, 861 (2006).  By contrast, the government won only 22 percent of free-speech cases. Id. at 844. ↩︎
  176. James M. Oleske, Jr., Free Exercise (Dis)Honesty, 2019 Wisc. L. Rev. 689, 712 (citing  Kent Greenawalt, 1 Fairness and Free Exercise 202 (2006)); see also Religious Liberty Protection Act of 1998: Hearings on H.R. 4019 Before the H. Subcomm. on the Const. of the Comm. on the Judiciary, 105th Cong. 17 (June 16 and July 14, 1998) (statement of Douglas Laycock, Associate Dean for Research, University of Texas Law School) (“In the practical application of the substantial burden and compelling interest tests, it is likely to turn out that ‘the less central an observance is to the religion in question the less the officials must do’ to avoid burdening it.”) (quoting Mack v. O’Leary, 80 F.3d 1175, 1180 (1996), vacated on other grounds, 118 S. Ct. 36 (1997)). ↩︎
  177. Oleske, supra note 175. ↩︎
  178. Id. at 714–15. ↩︎
  179. Id. at 715 (internal quotations omitted). ↩︎
  180. Id. (quoting James M. Oleske, Jr., A Regrettable Invitation to “Constitutional Resistanct,” Renewed Confusion over Religious Exemptions, and the Future of Free Exercise, 20 Lewis & Clark L. Rev. 1317, 1324–25 (2017)). ↩︎
  181. Id. at 718. ↩︎
  182. See Sherif Girgis, Defining “Substantial Burdens” on Religion and other Liberties, 108 Va. L. Rev. 1759 (2022). ↩︎
  183. Id. at 1792. “This is not to be confused with the “least restrictive means” test sometimes invoked by courts at stage two of a civil-liberties analysis, applying heightened scrutiny.” Id. at 1784. In this analysis, “the question is whether the claimant has other forms of conduct by which to pursue her interests—whereas the ‘least restrictive means’ test asks if the government has other policies by which to pursue its interests.” Id. at n.139. ↩︎
  184. Id. at 1793. ↩︎
  185. Id. at 1794. ↩︎
  186. Id. ↩︎
  187. Id. at 1795. ↩︎
  188. Id. ↩︎
  189. Id. at 1797. ↩︎
  190. Laycock & Berg, supra note 179 at 45. ↩︎
  191. Id. ↩︎
  192. Id. ↩︎
  193. 574 U.S. 352 (2015). ↩︎
  194. Laycock & Berg, supra note 179 at 48. ↩︎
  195. Id. (emphasis added). ↩︎
  196. Id. at 12–13. ↩︎
  197. Id. at 13. ↩︎
  198. Oleske Jr., supra note 175 at 719; United States v. O’Brien, 391 U.S. 367, 377 (1968). ↩︎
  199. Oleske, supra note 175 at 719. See also Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemption, 59 B.C. L. Rev. 1595, 1621 (2018) (“[T]he Smith framework is anomalous in that it fails to at least provide intermediate scrutiny for religious exercise.”) (emphasis in original); Oleske Jr., supra note 175, at n.189. ↩︎
  200. Michael A. Helfand, Identifying Substantial Burdens, 2016 U. Ill. L. Rev. 1771, 1808 (2016). ↩︎
  201. Oleske, supra note 175, at 741 (emphasis added). ↩︎
  202. Id. ↩︎
  203. Id. ↩︎
  204. Id. at 742 (quoting Steven D. Smith, Religious Freedom and Its Enemies, or Why the Smith Decision May Be A Greater Loss Now Than It Was Then, 32 Cardozo L. Rev. 2033, 2041–42 (2011)). ↩︎
  205. Laycock & Berg, supra note 179, at 50. ↩︎
  206. Id. (emphasis added). ↩︎
  207. See James M. Oleske, Jr., A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion Over Religious Exemptions, and the Future of Free Exercise, 20 Lewis & Clark L. Rev. 1317, 1358. ↩︎
  208. Id. at 1361. ↩︎
  209. Id ↩︎
  210. Id. at 1370. ↩︎
  211. Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 359 (2018). ↩︎
  212. Id. at 358, n.22. ↩︎
  213. Oleske Jr., supra note 207, at 1371. ↩︎
  214. Oleske Jr., supra note 175, at 744. ↩︎
  215. Oleske Jr., supra note 207, at 1357 (quoting Douglas Laycock, Religious Liberty and the Culture Wars, 2014 U. Ill. L. Rev. 839, 845 (2014)). ↩︎
  216. Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1931 (2021). ↩︎
  217. Namely, in defining what constitutes a “substantial secular burden.” ↩︎
Notes

Making Judges Moral: Originalism and the Practice of Common Good Constitutionalism [Note]

JLEPP

[PDF]

Brennan Buhr 1*

Introduction

Common good constitutionalism and its relation to originalism have been widely discussed in scholarly literature and public discourse of late.  I contend that common good constitutionalism is neither a dangerously novel theory, as some originalist scholars and judges have contended, nor does it require neglecting contemporary jurisprudence in the process of resurrecting older legal traditions.  Common good constitutionalism rightly understood is a species of originalism because the original public meaning of constitutional texts depends upon and requires judges to consult the moral principles that grounded the text when it was ratified.  Some originalists claim that judges who engage in any moral reasoning whatsoever in their legal analysis violate their oath of office.  I contend that the real problem is that judges sometimes engage in flawed moral reasoning.  Moral reasoning is an inevitable aspect of judicial decision-making in certain areas of law such as the freedom of speech.  Originalist judges and justices not only should but also in many cases have referred to common good principles of morality to ground their decisions in the original public meaning of the Constitution.

I will begin this Note by mediating between scholarly theories of originalism and propose a way forward to reconcile originalism with common good constitutionalism in theory.  Still, my primary purpose in this Note is more practical.  I will argue that common good constitutionalism, understood as the application of moral reasoning about the common good to judicial decision-making, has in several instances appeared in contemporary opinions authored by originalist-minded Supreme Court justices.

In Part I, I will analyze scholarly developments within both originalism and common good constitutionalism.  I object to the unimaginative yet all too common framing of these two theories as irreconcilable.  Advocates of both originalism and common good constitutionalism tend to misunderstand each other’s arguments and infer cleavages which do not in fact exist.  I will also argue that scholars heretofore have largely failed to recognize examples of common good constitutionalism in contemporary judicial practice.

In Part II, I will turn to my primary argument about judicial practice.  It is an inevitable fact that judges in our constitutional system must refer to moral principles to decide cases in order to adjudicate right from wrong.  Originalist judges and justices in particular often engage in a line of moral reasoning characteristic of common good constitutionalism by referring to common good principles against morally libertarian claims of right.  To develop this point, I will study dissenting opinions in four cases, all of which pertain to the freedom of speech: Texas v. Johnson (1989), United States v. Stevens (2010), Snyder v. Phelps (2011), and United States v. Alvarez (2012).  First Amendment free speech cases are uniquely conducive to encouraging arguments about the common good because these cases tend to pose thorny questions of public significance which demand a heavy dose of moral reasoning about the values underlying our constitutional order.  Each dissenting opinion pushes back against a majority’s morally libertarian reading of the First Amendment and in doing so advances robust common good arguments for government regulations of speech when the object of such regulations is in fact evil.  Even though the justices who authored or signed onto these opinions may not explicitly adhere to a common good constitutionalist vision of the Constitution, their use of moral reasoning about the common good reveals the inevitable fact that morality must inform constitutional interpretation and demonstrates why the original public meaning of constitutional texts must be consistent with common good considerations.  In other words, there are two levels to my primary argument.  First, originalism is an inherently moral jurisprudence in that is relies upon and demands reference to the moral principles underlying constitutional texts.  Second, originalism’s internal morality requires prioritizing common good considerations as opposed to a morally libertarian reading of the Constitution.

Part i: Theories of Originalism and Common Good Constitutionalism

A. What is Originalism?

During the late 20th century, great legal minds such as Justice Antonin Scalia, Ed Meese, and Robert Bork began to publicly champion originalism, a theory of constitutional interpretation which held that judges must interpret the Constitution according to its original public meaning rather than as the living document that the Warren Court perceived it to be.  In recent times, originalism has gained widespread acceptance as an essential interpretive lens for adjudicating constitutional questions, as even progressive legal minds such as Justice Elena Kagan2 and Jack Balkin3 have maintained.  Lawrence Solum summarizes originalism as encompassing two fundamental beliefs about constitutional texts: fixity (that the Constitution’s meaning was fixed at the time of its enactment) and constraint (that judges and other legal actors are constrained by this fixed meaning in arguing and adjudicating constitutional questions).4  In other words, originalism requires judges to critically analyze constitutional text, history, and tradition to determine original public meaning.  It is not a perfect theory, but it is an intellectually demanding method of interpreting constitutional texts according to the principles of the Founding generation and English common law, the lesser of two evils compared to living constitutionalism.5

In recent times, several scholars have argued at length in favor of originalism’s consistency with constitutional practice.  William Baude employs a positivist approach (what he calls a “positive turn”) to argue that Supreme Court jurisprudence and American constitutional practice more generally are consistent with and are in fact structured upon originalist criteria; in short, positive law requires our judges and legal actors to be originalists.6  Similarly, Stephen Sachs contends that originalism is the positive law of the Constitution, insofar as originalism is a rule of legal change with a genealogy extending back to the American Founding.7  Building upon these positivist approaches, Jeffrey Pojanowski and Kevin Walsh have attempted to justify originalism on normative grounds, claiming that originalism’s enduring character lies in its ability to meet our nation’s moral need for a positive law of the Constitution.8  Pojanowski and Walsh distinguish carefully between the non-exhaustive original law of the Constitution and “other constitutional law.”  The latter body of law includes authorized developments upon that original law as well as unauthorized developments and unauthorized departures which, respectively, either get the law wrong or seek to overturn originalism as the law of the Constitution.9

B. What is Common Good Constitutionalism?

The common good constitutionalist challenge to originalism has been waged most famously by Harvard Law School’s Adrian Vermeule, a public law scholar and recent convert to the Roman Catholic Church.  In various writings, including his Atlantic article Beyond Originalism, and a new book entitled Common Good Constitutionalism,10 Vermeule attacks contemporary originalism for its inconsistency with “a robust, substantively conservative approach to constitutional law and interpretation.”11  While Vermeule’s critics have accused him of embracing a conservative form of what is essentially living constitutionalism or Dworkinian moralizing, Vermeule’s challenge is in many ways a modest and historically grounded approach to constitutional interpretation.

In Beyond Originalism, Vermeule notes that allegiance to originalism has not only “become all but mandatory for American legal conservatives,” but has also begun to characterize the “left-liberal legal academy,” as Justice Kagan’s famous quip that “we are all originalists now” demonstrates.  However, Vermeule contends that originalism has “outlived its utility” for legal conservatives and now serves as an obstacle that impedes a “substantively conservative approach to constitutional law and interpretation,” an approach that he terms “common good constitutionalism.”  In Vermeule’s understanding, common good constitutionalism is rooted in the principle that “government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”12

Perhaps anticipating objections that his favorable diagnosis of “strong rule” reeks of authoritarianism, Vermeule contends that common good constitutionalism in in fact grounded in “constitutional text and in conventional legal sources,” especially within “the sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document” which from Vermeule’s perspective can and should be given “substantive moral readings.”  For example, Vermeule cites the Constitution’s General Welfare Clause as a starting point to relate common good constitutionalism to the Constitution’s actual text, against the “cramped reading” of this clause typically assumed within the liberal tradition.  Vermeule admits that his constitutional argument is grounded in a fundamentally different conception of “the general structure of the constitutional order” and “the nature and purposes of government” from contemporary originalist beliefs, a conception which emphasizes the state’s “police power … to protect health, safety, order, and public morality” and permits courts, legislatures, executives, and administrative bodies to act in pursuit of the common good.13

C. Critics and Proponents of Common Good Constitutionalism

Of course, objections to Vermeule’s article did arrive, most immediately and notably from libertarian-leaning originalist scholar Randy Barnett in The Atlantic.  Barnett contends that Vermeule’s common good constitutionalist perspective is “nothing but conservative living constitutionalism.”14 That is, Vermeule unapologetically attempts to employ the methodology of scholars such as left-leaning Ronald Dworkin who read the Constitution in a moral sense, though common good constitutionalists seek different substantive ends from Dworkin.

Similarly, Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit has argued in a speech to the Heritage Foundation that common good constitutionalism is more accurately described as “living common good-ism.”15 Writing against Vermeule and natural law scholars such as Hadley Arkes of Amherst College,16 Pryor contends that common good constitutionalism’s effort to achieve substantive outcomes threatens the rule of law because it fails to provide a procedurally impartial framework for adjudicating constitutional disputes.  Acknowledging the influence of Ed Meese upon his own legal thought, Pryor argues that originalism demands moral respect because it is rooted in the Founders’ “belief in natural law and natural rights,”17 a belief articulated most finely in the Declaration of Independence “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”  Pryor further maintains that judges who interpret constitutional texts take an oath to apply the meaning of the Constitution rather than the natural law, and that “there is no necessary connection between the meaning of a legal text and the natural law or the common good.”  Rather, when confronted with a conflict between the meaning of the text and the common good, judges must defer to textual meaning “even if doing so, in their view, works against the common good.”18

Although well-articulated, Barnett’s and Pryor’s critiques are in large part mere reassertions of their own originalist premises and misidentifications of their opponents’ viewpoints.  They seem to imply that originalism and common good constitutionalism are two fundamentally different theories rather than fruits of the same tree of morally infused jurisprudence.  As Arkes points out in response to Pryor’s criticisms, Arkes’s flavor of common good constitutionalism would not overthrow originalism as the dominant interpretive philosophy among right-leaning jurists but would improve upon it by “recover[ing] the way in which that first generation of jurists showed the knack of tracing back to those anchoring truths that underlay any of their judgments.”19

On the other hand, Vermeule’s brand of anti-originalist common good constitutionalism, doubtlessly wedded to his integralist political philosophy, is more ambitious than Arkes’s and is thus more vulnerable to the critique that common good constitutionalism is an immodestly open-ended, results-oriented, and ahistorical enterprise compared to originalism as understood by the likes of Scalia, Meese, and Bork.  However, in his article Common-Good Constitutionalism: A Model Opinion, Vermeule combats the suggestion that common good constitutionalism is “an alien interruption into our law” by referring to several Supreme Court cases from the late 19th century and early 20th centuries in which the Court advanced “the concept of the common good to define the ‘police powers’ of government … to promote the ‘health, safety, and morals’ of the people.”20   Vermeule discusses decisions “upholding maximum rates for grain warehouses and elevators,”21 upholding “state regulation of the manufacture and sale of intoxicating liquors,”22 “upholding an eight-hour maximum day for workers,”23 and upholding “a scheme of mandatory vaccination.”24  All of these decisions were grounded in common good principles against a personal or contractual liberty interest.  In the “model opinion” of Mugler v. Kansas, Justice John Marshall Harlan upheld Kansas’s law prohibiting “the manufacture and sale of intoxicating drinks” because such drinks “are, or may become, hurtful to society,” adding that individuals may not violate what “the lawmaking power, upon reasonable grounds, declares to be prejudicial to the general welfare.”25

In short, against critics such as Barnett and Pryor, Vermeule’s common good constitutionalism is historically grounded.  Vermeule identifies a moment and body of reasoning in American jurisprudential history which unabashedly sought to advance common good principles through the exercise of judicial deference, giving legislatures wide latitude to make “reasonable determinations” of policy principles in pursuit of the “general welfare” of their people.26  Hence, even a judge who might personally disagree with a conception of the common good being pursued by the state through legislation would still be required to uphold such legislation as long as it is reasonable.  In other words, it seems as though Vermeule is arguing for more widespread use of rational basis review, according to which legislative and executive powers which may act within a zone of reasonableness to advance common good principles without being restrained by activist courts under the compelling interest test characteristic of strict scrutiny.  When in doubt, judges should defer to these other branches of government.

Despite these historically grounded aspects of Vermeule’s constitutionalism, Vermeule’s conceptualization of originalism as a roadblock to common good constitutionalism is itself an intellectual obstacle to the contemporary development of a robust common good framework for interpreting the Constitution.  Vermeule is often misunderstood, yet he does maintain several excesses which render his theory of common good constitutionalism unworkable in practice against the background of the widely accepted and intellectually rigorous theory of originalism.  He believes that originalism is a fundamentally irredeemable project, that it has served its purpose and must be replaced by something wholly new. Vermeule’s often Twitter-fueled anti-originalist rhetoric may sound exciting at times, but for the purposes of actual judging it fails to be a trustworthy guide.  Furthermore, as I will elaborate in Part II, Vermeule fails to recognize the elements of common good constitutionalist reasoning in contemporary judicial opinions written by originalist-minded judges.27

There is another category of common good constitutionalists who are similarly critical of contemporary originalism in practice but who nevertheless maintain that originalism, properly understood, supports a moral or common good constitutionalist reading of the Constitution.  Two scholars in particular fit this mold: Gerard Bradley and Josh Hammer.

Bradley has authored a voluminous array of hard-hitting legal scholarship about originalism over the past several decades,28 and he has most recently written about contemporary originalism’s failure to acknowledge moral reasoning as a legitimate form of constitutional interpretation.  In his article Moral Truth and Constitutional Conservatism, Bradley criticizes the anti-philosophical “predilections” of contemporary originalist or quasi-originalist judges like Justice Scalia29 and Justice Roberts (with his famed “balls and strikes” jurisprudence)30 who eschew moral reasoning in their opinions when moral reasoning is precisely what they need in many contexts to understand the original public meaning of constitutional texts.  This kind of “philosophical abstinence”31 was perhaps an effective strategic move in the late 20th century to combat the excesses of erroneous Warren Court moral philosophizing.  However, a true originalist judge or justice should not replace bad moral reasoning with no moral reasoning whatsoever but rather with right and just moral reasoning.  That is, the original public meaning of constitutional texts itself includes moral concepts, and thus a judge tasked with applying the text to particular cases must consult this meaning (e.g. that marriage is a fundamental moral good rather than a legally-created institution regulated by the state).  Bradley elaborates upon this point at great length in his article with reference to several doctrinal areas of law, areas which should (at least in theory) encompass “foundational aspects of our polity”: human personhood, marriage and family, public morality, gender identity, and religious liberty issues.32  Against the thrust of Justice Kennedy’s “Mystery Passage” in Planned Parenthood v. Casey which defines liberty as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,”33 Bradley contends that liberty properly understood in its original meaning during the American Founding is “nested among abiding societal convictions” and “moral norms which are true for everyone” and which form “anchor points of a genuinely common good.”34

Similarly, Josh Hammer takes a somewhat in-between stance upon originalism and common good constitutionalism in his aptly named essay Common Good Originalism.35  Against the dead consensus of contemporary originalism which has revealed its inconsistency with common good principles in judicial opinions such as Justice Gorsuch’s majority opinion in Bostock v. Clayton County,36 Hammer concludes that judges should consult the sweeping generalities of the Constitution’s Preamble and the arguments of The Federalist Papers to resolve ambiguities in original public meaning in favor of common good principles.  In Hammer’s view, the Founding tradition is characterized by a strong common good orientation favored by the likes of Alexander Hamilton, John Marshall, and James Wilson, along with their successors in future generations of American political thought and constitutional history such as Abraham Lincoln.37

Part II: Contemporary Case Law and Common Good Constitutionalism

Though cogent, these scholarly accounts of originalism largely fall short in identifying examples from contemporary American case law which point toward a moral reading of the Constitution.  In his various essays and his new book, Vermeule does refer to several cases from the late 19th and early 20th centuries which encapsulate a common good framework to constitutional interpretation,38 but he has yet to account for contemporary examples of case law (either majority opinions or dissents) which employ a similar framework.39  Furthermore, though Bradley cites a large volume of case law which tends to reveal contemporary originalism’s failure to promote a moral or common good framework in American jurisprudence, he does not examine instances in which originalist judges and justices have reasoned in this manner.  Hammer perhaps comes closest to identifying a common good jurisprudential vision in contemporary case law by referencing Chief Justice Rehnquist’s dissent in Texas v. Johnson and Justice Samuel Alito’s solo dissents in US v. Stevens and Snyder v. Phelps,40 but he fails to follow up upon these references with a rigorous scholarly analysis and is content to fall back upon the ambiguities of the Constitution’s Preamble as the launching point for his project of common good originalism.

My goal in this section is to analyze the elements of moral reasoning about the common good in four dissenting Supreme Court opinions pertaining to the freedom of speech and demonstrate that these opinions embody what common good constitutionalists are searching for in theory but often fail to identify and expound in practice.

A. Texas v. Johnson (1989)

In Johnson, the Court in Justice William Brennan’s majority opinion held that Gregory Lee Johnson’s conviction for burning an American flag at a political protest in Dallas, Texas, violated the First Amendment’s guarantee of the freedom of speech.  Under Tex. Penal Code Ann. § 42.09 (1989), the state of Texas outlawed the “[d]esecration of [a v]enerated [o]bject” and more explicitly included “a state or national flag” among the objects whose desecration was prohibited.41  The Court held that this statute was not a content-neutral restriction and thus must be subjected to “the most exacting scrutiny.”42 

According to Brennan, Texas’s production of Johnson under this statute was unconstitutional on an as-applied basis, as Johnson’s conduct did not incite “imminent lawless action” or constitute “fighting words” that threaten public order.43  Furthermore, although Brennan acknowledges the state’s “interest in preserving the flag as a symbol of nationhood and national unity,”44 he also notably asserts a “bedrock” First Amendment principle that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”45  Texas’s statute may have been well-intentioned in the end that it sought, preserving national unity, yet its means of getting there, a criminal prohibition upon Johnson’s expressive conduct, was constitutionally objectionable: “To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest.”46

It is important to highlight the fact that Justice Brennan’s majority opinion in Johnson acknowledges the government’s legitimate interest in preserving the flag as a symbol of American unity.  At the very least, the Court recognizes the theoretical importance of how the Texas statute and Johnson’s conviction implicate common good principles. However, Brennan’s opinion ultimately takes a morally libertarian approach to free speech jurisprudence and does not appeal to common beliefs about the meaning of the flag in relation to national unity.  The flag in the Court’s view reflects “the principles of freedom and inclusiveness” which permits individuals like Johnson to engage in what many would consider distasteful or even anti-American behavior such as flag burning.47

On one hand, the Court is asserting a libertarian moral argument here: an individual endowed with dignity and free will is expressing his unfavorable beliefs about the United States and its president, Ronald Reagan, and the proper response of those who support the flag’s symbolic value should not be to punish them but to use their own capacity for argumentation “to persuade them that they are wrong.”48  On the other hand, this argument largely ignores common good considerations because the substance of Johnson’s speech is contrary to commonly-shared moral norms about respect for national symbols.   For example, Johnson’s conduct is not analogous to the conduct at issue in West Virginia State Board of Education v. Barnette,49 a case which the Court cites on multiple occasions in its opinion to justify its permissive interpretation of the First Amendment’s free speech clause.  Johnson’s flag burning was an active assault against the flag and, by extension, America’s national traditions, an assault which the government could properly regard as “evil.”50  It was not merely a passive refusal according to sincerely held religious beliefs like Barnette’s refusal to salute the American flag at school.  From a common good constitutionalist perspective, evil acts such as flag burning can and should be regulated.

In his dissent, Chief Justice William Rehnquist articulates a different understanding of how “evil” can and should be regulated by the government, an understanding that aligns closely with the principles of common good constitutionalism.  Rehnquist contends that the freedom of speech is properly limited by the compelling interest of preserving America’s national traditions.  Rehnquist notes that the American flag’s symbolic significance has been “for more than 200 years” a “uniqueness” which cannot be papered over with libertarian moral arguments but in fact “justifies a governmental prohibition against flag burning in the way respondent Johnson did here.”51  In other words, the internal morality of the American constitutional regime values our nation’s traditions in a manner that must affect the Court’s interpretation of the First Amendment’s text.  Rehnquist thus leans heavily upon the perhaps equally bedrock constitutional principle that the freedom of speech is not an absolute right when it conflicts with the Constitution’s internal morality, and he applies this principle to conclude that Johnson’s speech is not constitutionally protected.

Furthermore, Rehnquist emphasizes that the moral content of Johnson’s speech is relevant to its protected or unprotected status under the First Amendment.  Johnson’s conduct was not only deeply inflammatory but was also a morally detestable act according to prevailing American beliefs, as Johnson degraded the flag’s symbolic meaning which is deeply rooted in both American history and contemporary American life.  Unlike Brennan’s majority opinion which merely acknowledges the fact of the American flag as a symbol of national unity, Rehnquist asserts that the government’s effort to defend this symbolism is an intrinsically moral effort that can overcome the free speech interest at stake.  Rather than limiting governmental power to the ambiguous power to “persuade [others] that they are wrong” as the Court would have it, Rehnquist contends that “one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people . . . .“52 (emphasis added).  In short, democratic government exists not only to protect rights but also to restrict evils including but not limited to flag burning which offend common moral norms and attack commonly-held American traditions.  Even when such restriction of evil might offend a morally libertarian interpretation of the First Amendment’s free speech clause, the Court cannot ignore the content of the evil at hand.

Second, Rehnquist downplays the suggestion offered by the majority that, like the speech in Barnette and other analogous cases, Johnson’s speech truly constitutes “expressive conduct.”  Rather, the act of flag burning has little to no intrinsic value as speech, as it is more analogous to an “inarticulate grunt or roar”53 than an expression of a coherent idea.  Grunting and roaring, especially if done in a manner that is deeply offensive to core American traditions, simply is not protected by the Constitution in the same manner as articulate speech.  Hence, Rehnquist seems to identify a kind of scale by which the moral weight of speech or expressive conduct is determined not only by the content of the communication but also by the speaker’s means of communication.  This use of a means-ends distinction brings to mind the means-ends distinction that the majority applies to Texas’s prohibition of Johnson’s conduct.  However, whereas the majority claims that the state of Texas used unconstitutional means to stifle Johnson’s speech, Rehnquist’s dissent emphasizes that Johnson’s inarticulate, inflammatory means of communication is morally inferior to articulate speech and therefore is less deserving of constitutional protection.  On the other hand, the more coherent one’s speech-act is, the more likely it is that the speech-act possesses moral worth and constitutional protection as expressive conduct.

B. United States v. Stevens (2010)

Moving into the 21st century, I want to focus on a trio of dissents authored by Justice Samuel Alito in free speech cases, dissents which are characterized by a heavy dose of practical moral reasoning analogous to common good constitutionalism.

In Stevens, Chief Justice Roberts wrote the 8-1 majority opinion for the Court that invalidated on First Amendment free speech grounds Congress’s statutory ban on the “depiction of ‘animal cruelty,’” a ban which was intended to target “crush videos” featuring “the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters.”54  The statute nonetheless included an exception for depictions that offered “serious religious, political, scientific, educational, journalistic, historical, or artistic value.“55 

Essential to Roberts’s opinion is his distinction between animal cruelty or “animal fighting,” which is illegal in all 50 states and the District of Columbia, and the depiction of such cruelty which may be constitutionally protected under the First Amendment’s free speech clause.  Whereas the government in Stevens contended that Congress is free to balance the freedom of speech against the “societal costs” of permitting crush videos in the public domain, Roberts claims that such a legislative effort to promote the common good over a morally libertarian understanding of free speech rights is “startling and dangerous” because the First Amendment was itself a value judgment by the American people centuries ago in favor of free speech rights over legislative balancing tests on free speech questions.56  Roberts admits that some categories of speech such as child pornography, the regulation of which was deemed constitutionally permissible in New York v. Ferber,57 fall “outside the protection of the First Amendment.”58  However, Ferber was a “special case” rather than a “freewheeling authority” to restrict free speech because in Ferber “the market for child pornography was ‘intrinsically related’ to the underlying abuse.”59  Here, however, the Court found no evidence that “depictions of animal cruelty” are historically unprotected forms of speech, and that the statute created “a criminal prohibition of alarming breadth” against this constitutional backdrop.60

We could grant Chief Justice Roberts’s claim that there is no evidence that depictions of animal cruelty constitute unprotected speech.  Even so, it remains an open question why the Court cannot apply moral reasoning to determine that Congress may regulate such speech because it is “evil,” as Rehnquist contends in his Johnson dissent with reference to flag burning, and that the First Amendment does not extend so far as to protect evil depictions as well as evil acts.  According to the Rehnquist position, democratic government is not bound to an allegedly sacred but ambiguous and unusually libertarian judgment by the American people when the First Amendment was ratified, but is in fact rooted in “the idea that those who submitted to government”—that is, all those of succeeding generations as well as those of the American Founding— “should have some say as to what kind of laws would be passed.”61  Originalism, in other words, might demand an appeal to moral reasoning about the substance or content of the law, not just the historical record.

Justice Alito dissented in Stevens in an opinion that was joined by no other justices but which contains several elements of common good reasoning.  I identify two particular focal points of Alito’s common good constitutionalism in Stevens.  First, Alito argues that the Court should have deferred to Congress’s judgment that regulating the content of crush videos is a moral necessity because of these videos’ intrinsic relation to the underlying illegal conduct.  In other words, the majority’s essential distinction between depictions and acts or underlying conduct fails.  Second, Alito contends that the Court must take more seriously than it does these videos’ lack of serious social value, a fact which should weigh in favor of the government’s argument.  Serious social value is not a precondition for First Amendment protection, but it is an important factor.

First, Alito focuses on the intrinsic relation between the statute banning “depictions” of animal cruelty and the prevention of animal cruelty itself, cruelty which neither side disputes is illegal.  The regulation of crush videos is necessary to advance the government’s compelling interest in preventing “horrific acts of animal cruelty,”62 and this moral necessity weighs heavily in favor of the government’s defense.  Alito’s reasoning here is better equipped than the majority to discern what is really going on in the production of crush videos; that is, the only reason why such videos are produced in the first place is to sell for profit videos that satiate an esoteric fetish for viewing acts of animal cruelty.

Of course, Roberts seems to imply that (unlike Ferber) the content at issue here is not “intrinsically related” to illegal animal cruelty.  In reality, however, this case closely mirrors Ferber and its “intrinsically related” rule comparing the depicted conduct to the underlying illegal conduct, the only major distinction being that the depicted conduct in Ferber was of children rather than animals.  Illegal animal cruelty (the conduct) itself is the linchpin of this case that the Court cannot ignore in its free speech analysis of “depictions” in crush videos.  Alito emphasizes that prior to the statute’s enactment, “the underlying conduct . . . was nearly impossible to prosecute.”63  As it had previously done with respect to child pornography, the issue in Ferber, Congress acted here to prevent the underlying illegal and immoral conduct of animal cruelty by banning its depiction outright.  After all, “the videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos,”64 just as in Ferber where the Court concluded that the market for the content at issue was “intrinsically related” to the underlying abuse.

In reality, allowing the videos to be created (in secret, of course, or perhaps in other countries where the underlying conduct is not illegal) and leaving their sellers unprosecuted would guarantee that the underlying immoral conduct, quite literally crushing helpless animals, would continue as long as selling crush videos remained a profitable activity.  According to a moral reading of the Constitution in line with common good principles, the First Amendment does not require “Congress to step aside and allow the underlying crimes to continue.”65  Congress was faced with a choice: “Either ban the commercial exploitation of crush videos or tolerate a continuation of the criminal acts that they record. Faced with this evidence, Congress reasonably chose to target the lucrative crush video market.”66  

Second, Alito contends that these crush videos lack any serious social value sufficient to outweigh the “harm caused by the underlying crimes” depicted in them.67  In doing so, Alito acknowledges an exception to the statute which permits depictions of animal cruelty which have “serious religious, political, scientific, educational, journalistic, historical, or artistic value,”68 though Alito seems to implicitly emphasize Congress’s common good purpose by using the phrase “social value” (emphasis added) to describe this exception rather than just “value” or “serious value” as the majority uses.69

This exception seems to be Congress’s way of morally distinguishing other legitimate free speech activities from the crush videos they targeted.  The animal cruelty depicted in crush videos lacks serious social value and thus may be prohibited by Congress: “The animals used in crush videos are living creatures that experience excruciating pain. Our society has long banned such cruelty, which is illegal throughout the country.”70  Alito likens crush videos to videos of dogfighting which, in addition to depicting actual crimes and being legally regulated by Congress because of the intrinsic relation between the videos and the illegal underground market for dogfighting, “have by definition no appreciable social value” and cause harms like “physical torture and emotional manipulation” which “greatly outweighs” any purported redeeming value.71  

Hence, the moral problem that is the pain, suffering, and death which animals experience is itself an important factor in the free speech analysis, even independently, it seems, of the fact that the underlying conduct is illegal.  Against the majority’s claim that it is a “startling and dangerous” proposition to consider the freedom of speech less as an absolute liberty and more in the context of “social costs and benefits,”72 Alito’s jurisprudence could not be clearer: The Court must consider how that these depictions lack serious social value in its First Amendment analysis. 

C. Snyder v. Phelps (2011)

Another notable dissent in which Alito employed a heavy dose of moral reasoning about the common good came in the 2011 case Snyder v. Phelps.  At issue in Snyder was the picketing of a military funeral in Westminster, Maryland, by the infamous Westboro Baptist Church, headquartered in far-away Topeka, Kansas, to communicate the church’s belief that God hates the United States for tolerating homosexuality in the military.73  The Court overturned on First Amendment freedom of speech grounds a multimillion-dollar civil jury judgment originally awarded to the Snyder family against the church for the church’s “intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims . . . .”74  As in Stevens, Alito again wrote a lone dissent against the Court’s morally libertarian opinion and for a common good constitutionalist approach to free speech jurisprudence.

In its statement of facts, the Court in a majority opinion authored by Chief Justice Roberts acknowledges the highly adversarial and revolting nature of the Westboro Baptist Church’s demonstration outside of deceased Marine Lance Corporal Matthew Snyder’s funeral in Westminster, Maryland, the Snyder’s hometown.  The seven picketers, which included Westboro Baptist parishioner Fred Phelps and six family members, traveled from Kansas to Maryland to line the streets of Annapolis and Westminster and carry signs that stated, “God Hates the USA/Thank God for 9/11,” “America Is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.”75  Although Roberts is quick to qualify that the church complied with all police instructions during the demonstration and neither entered church property nor engaged in acts of violence,76 the overtly hostile content of the signs and the fact that Snyder later became aware of and emotionally distressed from that content were not in dispute.

Despite acknowledging these gruesome signs and Snyder’s knowledge of and subsequent distress stemming from Westboro Baptist’s emotionally hostile yet nonviolent demonstration, Roberts concludes that the First Amendment’s free speech clause shielded the church from any liability to Snyder, as the church’s picketing was legally protected expression or speech on a matter of public concern.77  Whereas speech relating to matters of public concern receives broad constitutional protections, speech which concerns merely private interests does not receive similar protections, regardless of the moral outrageousness of that speech.  Here, Roberts concludes that the content of the church’s signs “plainly” constitutes a matter of public concern rather than “purely private concern,”78 and since the church “conducted its picketing peacefully”79 and did not interfere with the funeral itself, their speech was “entitled to ‘special protection’ under the First Amendment” and was thus immunized from civil liability.80

Justice Alito dissented, acknowledging that while the church’s commentary “on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not.”81  Alito’s common good constitutionalism is evident in his emphasis that the majority opinion has produced an absurd result: the Court bars any recovery to Snyder, the suffering father of a soldier killed in the line of duty and later attacked by Westboro’s extreme emotional abuse, for emotional injuries he endured due to no fault of his own.

Alito contends that First Amendment free speech considerations do not and should not act as a complete bar to Snyder’s recovery, noting as his “most important” point that “[t]he First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern . . . .”82 (emphasis added).  Even though the church’s speech touched on military and religious matters of great public concern, the majority fails to recognize that the church may have followed all the police rules surrounding picketing in public and yet also have committed an actionable tort against Snyder for infringing upon his private person.  Westboro’s display was not only a protest against the American military but was also an assault against Snyder, not subjectively “outrageous”83 as the majority portrays the jury’s reasoning for its verdict but objectively emotionally injurious.84  As Alito notes earlier in his dissent, the First Amendment protects individuals who “picket peacefully in countless locations,” yet it does not shield them from liability for “intentionally inflict[ing] severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”85  In other words, from Alito’s perspective the majority opinion has produced an absurd result: an injured person is unable to receive any compensation for the injury inflicted upon him by an at-fault party.

Alito’s discussion of Snyder’s absurd results mirrors Vermeule’s discussion in his new book of  Riggs v. Palmer,86 a late-19th century case arising out of New York State.  Vermeule’s discussion here is in a certain sense originalist in that it is rooted in Justice Scalia’s doctrine of “absurd results,” according to which judges should reason to “avoid egregious outcomes that no reasonable legislator could be thought to have intended, in light of fundamental general background principles of the legal system.”87  In Riggs, the absurd result would have been that a grandson who had deliberately poisoned his grandfather in order to receive his inheritance was statutorily entitled to that inheritance based upon his grandfather’s will, despite the undisputed fact that the grandson had murdered his grandfather.88  That is, the statute did not explicitly contemplate a scenario like this to prevent rewarding an individual from profiting from his parricidal crime.  However, the majority of the New York Court of Appeals held that the statute should be read in accordance with “general, fundamental maxims of the common law” such as the generally-accepted principle that “[n]o one should be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”89  Hence, the court enjoined the grandson from benefitting from his grandfather’s inheritance. 

In Snyder, of course, no murder accusations are involved.  I reference this analogy simply to illustrate “the majority’s appeal to fundamental public policies,” or what one might otherwise call an appeal to the common good as the statute’s moral backdrop, rather than a strict reading of the statutory text.90  Common good constitutionalism as embodied within Justice Alito’s dissenting opinion in Snyder does not seek to ignore the text of the First Amendment or overturn the Court’s free speech jurisprudence as it has developed over time (for example, the distinction between public and private concern), but it does require judges to consider the “background principles” of the law in accordance with that jurisprudence.91  Hence, Alito acknowledges in his dissent that Westboro’s speech related to a matter of public concern, yet it also infringed upon Snyder’s private person and caused an emotional injury that the law would be wrong to not correct through just compensation in a tort suit.  In sum, Alito’s dissent in Snyder demonstrates that judges should avoid applying the law in a way that produces absurd results such as denying an aggrieved plaintiff compensation for an emotional injury he sustained due to no fault of his own.

D. United States v. Alvarez (2012)

Finally, Alvarez presents another free speech case in which the Court’s majority took a permissive approach to the First Amendment’s freedom of speech clause, and Justice Alito authored a dissent that employed moral reasoning characteristic of common good constitutionalism.  However, unlike Alito’s solo dissents in Johnson and Stevens, in Alvarez Alito’s dissent was joined by two other justices, Justice Scalia and Justice Thomas.

At issue in Alvarez was an as-applied constitutional challenge to defendant Xavier Alvarez’s conviction under the Stolen Valor Act of 2005, which criminalized making a false or fraudulent declaration that one had been awarded a military honor such as the Congressional Medal of Honor.  Alvarez was convicted after lying at a water district board meeting in Claremont, California, about having been awarded the Congressional Medal of Honor in 1987.92  Alvarez pled guilty to a federal criminal charge under the Act for his lie, but he also appealed his conviction to the United States Court of Appeals for the Ninth Circuit on First Amendment free speech grounds.  The appellate court found for Alvarez and reversed his conviction.93

The Court affirmed the appellate court’s judgment, declaring in a majority opinion by Justice Anthony Kennedy that the “sometimes inconvenient principles of the First Amendment” prohibited Alvarez’s conviction under the Act.94  Citing Justice Roberts’s opinion in Stevens that a First Amendment analysis which takes into consideration “social costs and benefits” is “startling and dangerous,”95  Kennedy confines permissible content-based restrictions to a few “historic and traditional categories” of permissible regulation and asserts that “falsity alone” is not enough to bring a statement outside constitutional protection under the First Amendment’s free speech clause.96

Still, Kennedy does not conclude his opinion with a bare listing of permissible categories of speech regulation, as gives additional reasons why such a rule categorizing false speech as unprotected speech would have deleterious policy implications.  Kennedy judges that the statute is overbroad, as it could be applied to criminalize “personal, whispered conversations within a home” in addition to public statements like Alvarez’s at the water district board meeting.97  Furthermore, the “list of subjects” which the government could conceivably prosecute under the statute is “endless,” thereby giving the government “a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.”98  While acknowledging the uniqueness of the Congressional Medal of Honor and the importance of the government interest in protecting its integrity, Kennedy writes that these asserted interests do not overcome the government’s “heavy burden when it seeks to regulate protected speech.”99  Instead, Kennedy proposes that “counterspeech” may well suffice to “overcome the lie.”100  For example, the government could create a database listing Congressional Medal of Honor winners, which would make it “easy to verify and expose false claims.”101

Kennedy’s understanding of the First Amendment as applied in Alvarez comes across in these lines as highly libertarian.  There is not much in Kennedy’s opinion in Alvarez to suggest that he is concerned about the common good implications of evacuating the Stolen Valor Act of its effectiveness.  Rightly understood, the common good not only includes the promotion of truth but also the punishment of certain lies which violate public confidence in institutions such as the military awards system.  Kennedy’s suggestion of alternative means such as creating a database of medal winners through which the government can achieve its interest of upholding the Congressional Medal of Honor’s integrity is not a serious effort to remedy a pervasive public problem, as Congress sought to remedy through the Stolen Valor Act.  Mere “counterspeech” cannot regulate the conduct of others who seek to profit from achievements that are not theirs; that is, it may promote truth, but it cannot punish lies.  Under Kennedy’s proposed framework, liars would perhaps face a greater risk of being discovered, but they still would not be held accountable for it by the federal government.  A more restrictive means than counterspeech or a database is necessary to achieve the government’s compelling interest here.

Once again in Alvarez, Justice Alito authors a dissenting opinion in a free speech case in which he reasons morally about the law and the common good implications of speech restrictions.  I identify three ways in which Alito’s dissent in Alvarez properly falls under the heading of common good constitutionalism.  First, Alito defers to the legislative judgment of Congress that only by criminalizing “stolen valor” can the government protect the integrity of the military honors system, as false claims of individuals asserting to have won the Congressional Medal Honor have proliferated into a serious public problem that counterspeech alone cannot resolve.  Second, Alito contends that the First Amendment is not a libertarian free-for-all that protects speech even when such protection comes at the expense of that integrity; in short, the First Amendment values different things from what the majority claims it does.  Third, and relatedly, Alito emphasizes that, like the crush videos in Stevens, the speech at issue here has little to no value.  False statements are unworthy of First Amendment Protection in their own right.

First, Alito acknowledges that stolen valor has become a serious problem of public significance; that is, it threatens the common good (though Alito does not explicitly use this phrase).  Perhaps one or two individuals lying about their award status might not be a serious social problem to be resolved by congressional legislation.  However, the Stolen Valor Act was passed “in response to a proliferation of false claims concerning the receipt of military awards.  For example, in a single year, more than 600 Virginia residents falsely claimed to have won the Medal of Honor…. When the Library of Congress compiled oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves as Medal of Honor recipients had not actually received that award,” among several other examples of false claims.102  Unlike the majority which seems to treat Alvarez as a uniquely pathological liar,103 Alito recognizes that stolen valor threatens the common good by encouraging fraudsters to make false claims that cause substantial harm to society in two ways.  On one hand, false claimants often receive “financial or other material rewards, such as lucrative contracts and government benefits.”104  Furthermore, Alito identifies a “less tangible harm” in stolen valor in that it “tend[s] to debase the distinctive honor of military awards” and serves as a metaphorical “slap in the face” to veterans who have actually won the Medal of Honor and their families.105  Congress concluded that only the criminalization of such behavior would be sufficient to end this public problem, and the Court should defer to this judgment absent a truly compelling free speech concern.  Counterspeech, including the majority’s suggestion to create a database of “actual medal recipients,” simply “will not work” to remedy this widespread and complex issue in practice, not in the least because the Department of Defense admitted its inability to create such a database.106

Second, Alito’s overall understanding of the purposes of the freedom of speech and the First Amendment is distinctively common good constitutionalist.  Although the large scale of and damaged caused by stolen valor does not invalidate the requirement that the Court engage in a First Amendment free speech analysis to examine whether such speech is protected, Alito maintains that the seriousness and public significance of this problem weighs heavily in favor of the argument that Alvarez’s speech is unprotected.  Alito argues that the purpose of First Amendment’s freedom of speech clause is not really in tension with other values such as the integrity of the military honors system when one reads the First Amendment in light of important public symbols and institutions.  Alito inserts an analogy into his dissent that captures this different understanding succinctly: It would be ridiculous to argue that the First Amendment protects “a dollar given to a homeless man falsely claiming to be a decorated veteran” as “more important in the eyes of the First Amendment” than “damage caused to the very integrity of the military awards system” by this action.107  In other words, the law of the First Amendment does not go so far as to protect stolen valor because the purposes of the First Amendment necessarily entail considering the implications of speech upon the common good.

Third, and relatedly, Alito’s application of this understanding of the First Amendment to this case suggests that common good considerations must come into play when the Court is weighing the value of speech and the relevance of that value to the protected or unprotected status of that speech.  As part of his First Amendment argument before the Court, Alvarez claimed that his lie was “nothing out of the ordinary” because “[e]veryone lies …. We lie all the time.”108  Alito judges this kindergarten-level morality (that doing something is permissible simply because other people are doing it too) as “radical” because such a principle would cover speech which would have “no intrinsic value” in society.109  And like in Stevens, Alito writes that the speech at issue here has no intrinsic value and is thus unprotected by the First Amendment.  Again, Alito points to a moral quality in the content of speech in making this argument.  Some speech is more valuable than other speech, and the Stolen Valor Act prohibits only that speech which is “veritably false and entirely lacking in intrinsic value,” which damages the integrity of the military awards system, and which does not risk infringing upon other matters of speech which may be valuable.11

Simply put, Alvarez’s speech is so overtly false and so lacking in value to the common good (in fact, it gravely harms that good) that it is unworthy of protection under the noble and morally praiseworthy document that is the Constitution of the United States.

Conclusion

Common good constitutionalism is neither a radical theory of constitutional interpretation nor does it require ignoring several decades of contemporary jurisprudence and returning to a bygone era.  Rather, common good constitutionalism has been practiced in several contemporary cases, most notably in the area of the Supreme Court’s free speech jurisprudence.  Furthermore, this sense of common good constitutionalism is quite consistent with the more prominent interpretive philosophy of originalism.  However, as more and more scholars and influential public figures have been discussing at length over the past few years, originalism’s more positivist strains have tended to predominate among judges and legal scholars.  Going forward, scholars and judges must read contemporary cases, both majority opinions and dissents, to recognize the elements of the Constitution’s internal morality of the common good that are contained within them.  This recognition can propel a new originalism of the common good into the common legal parlance and constitutional legal practice, even among those thinkers and actors who do not explicitly acknowledge their allegiance to common good constitutionalism.

  1. * J.D. Candidate, 2023, Notre Dame Law School; B.A. in Political Science and Theology, 2020, University of Notre Dame. I am grateful for Professor Sherif Girgis’s guidance in honing my Note topic and directing my research during the 2021–2022 academic year. ↩︎
  2. See The Nomination of Elena Kagan to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 62 (2010) (statement of Elena Kagan) (“And I think that [the Framers] laid down—sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they say, what they meant to do. So in that sense, we are all originalists.”). ↩︎
  3. See generally Jack Balkin, Living Originalism (2011). ↩︎
  4. See Lawrence Solum, The Constraint Principle: Original Meaning and Constitutional Practice (Apr. 3, 2019) (on file with SSRN). ↩︎
  5. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 849 (1989). ↩︎
  6. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2351 (2015). ↩︎
  7. See Stephen Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 817 (2015). ↩︎
  8. Jeffrey Pojanowski & Kevin Walsh, Enduring Originalism, 105 Geo. L. J. 97, 97 (2016). ↩︎
  9. Id. at 145. ↩︎
  10. See generally Adrian Vermeule, Common Good Constitutionalism (2022). ↩︎
  11. Adrian Vermeule, Beyond Originalism, The Atl. (Mar. 31, 2020), https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/. ↩︎
  12. Id. ↩︎
  13. Id. ↩︎
  14. Randy Barnett, Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution, The Atl. (Apr. 3, 2020), https://www.theatlantic.com/ideas/archive/2020/04/dangers-any-non-originalist-approach-constitution/609382/. ↩︎
  15. William Pryor, Politics and the Rule of Law, The Heritage Found. (Oct. 20, 2021), https://www.heritage.org/the-constitution/lecture/politics-and-the-rule-law. ↩︎
  16. See Hadley Arkes, Judge Pryor’s Friendly Fire, L. & Liberty (Oct. 26, 2021), https://lawliberty.org/judge-pryors-friendly-fire/ (Arkes wrote in response, however, that Pryor mischaracterized Arkess’ views and that there was much greater agreement between Judge Pryor’s views and natural law scholars like Arkes than Pryor himself acknowledged). ↩︎
  17. Pryor, supra note 14 (citing Robert P. George, Natural Law, the Constitution, and the Theory and Practice of Judicial Review, 69 Fordham L. Rev. 2269, 2282 (2001)). ↩︎
  18. Pryor, supra note 14. ↩︎
  19. Arkes, supra note 15. See also Arkes et al., A Better Originalism, The Am. Mind (Mar. 18, 2021), https://americanmind.org/features/a-new-conservatism-must-emerge/a-better-originalism/. ↩︎
  20. Adrian Vermeule, Common Good Constitutionalism: A Model Opinion, Ius & Iustitium (Jun. 17, 2020), https://iusetiustitium.com/common-good-constitutionalism-a-model-opinion/. ↩︎
  21. See Munn v. Illinois, 94 U.S. 113 (1877). ↩︎
  22. See Mugler v. Kansas, 123 U.S. 623 (1887). ↩︎
  23. See Holden v. Hardy, 169 U.S. 366, 380 (1898). ↩︎
  24. See Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905). ↩︎
  25. Vermeule, supra note 19 (citing Mugler, supra note 21, at 663) ↩︎
  26. Vermeule, supra note 19. In the chapter “The Classical Legal Tradition in America” in his new book, Vermeule engages in a lengthier discussion relating this “Dworkinism-plus-deference” approach employed in Mugler and other cases to the classical legal tradition’s emphasis upon the common good as the end of government. See Vermeule, supra note 9, at 52–90. ↩︎
  27. I define “contemporary” somewhat arbitrarily to include any period of time since Justice Scalia first appeared on the Court in 1986 (including the 1989 case Texas v. Johnson, in which Scalia was in the majority that agreed with Johnson’s free speech claim). ↩︎
  28. See, e.g., Gerard Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245, 245 (1991). ↩︎
  29. Gerard Bradley, Moral Truth and Constitutional Conservatism, 81 La. L. Rev. 1317, 1325 n.27 (2021) (citing Scalia, supra note 4, at 863) (“Now the main danger in judicial interpretation of the Constitution— or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law.”). ↩︎
  30. Bradley, supra note 28, at 1326 (“This whole development is captured in the image of Supreme Court Justices settling the meaning of the Constitution as if they were umpires calling balls and strikes.”). ↩︎
  31. Id. at 1325. ↩︎
  32. Id. at 1328. ↩︎
  33. 505 U.S. 833, 851 (1992). ↩︎
  34. Id. at 1321. ↩︎
  35. Josh Hammer, Common Good Originalism, 4 Harv. J.L. & Pub. Pol’y 917, 917 (2021). ↩︎
  36. See 140 S. Ct. 1731 (2020). ↩︎
  37. Hammer, supra note 34 at 939. For an alternative view of the American Founding’s liberal and individualist nature, see Patrick J. Deneen, Why Liberalism Failed (2018). ↩︎
  38. In the “The Classical Legal Tradition in America,” Vermeule discusses at length Justice Harlan’s dissent in Lochner and his majority opinion in Mugler along with the cases Riggs v. Palmer (1889) and United States v. Curtiss-Wright (1936) as model examples of common good constitutionalism. See Vermeule, supra note 9, at 52–90.  Later in the book, Vermeule analyzes Village of Euclid v. Ambler Realty Co. (1926) to shed light upon the principle of “developing constitutionalism” according to common good principles as opposed to a morally libertarian understanding of property rights. Id. at 124–28. Although Vermeule is critical in his book of Pojanowski and Walsh’s concept of “enduring originalism,” Vermeule’s theory of developing constitutionalism seems quite similar to Pojanowski and Walsh’s category of “authorized developments” upon the law of the Constitution; that is, developments “that are consistent with the fixed Law of the Constitution, even though they are not required by or derived directly from its legal content.” Pojanowski & Walsh, supra note 7, at 145. ↩︎
  39. For example, in his new book Vermeule considers only the majority opinion in the “stolen valor” case of United States v. Alvarez, a case which he criticizes for framing the question at hand in relation to whether government may regulate social harm rather than more narrowly considering whether government may protect from destruction “a public and common good, the military honors system.” Vermeule, supra note 9, at 169. I largely agree with Vermeule’s criticism of the Alvarez majority. However, in his negative treatment of Alvarez, Vermeule entirely passes over Justice Alito’s dissent which, as I will contend in Part II of this note, embodies precisely the kind of common good constitutionalist kind of reasoning which Vermeule desires to play a larger role in American jurisprudence. ↩︎
  40. Hammer, supra note 34, at 946. ↩︎
  41. Texas v. Johnson, 491 U.S. 397, 400, n.1 (1989). ↩︎
  42. Id. at 412. ↩︎
  43. Id. at 409. ↩︎
  44. Id. at 410. ↩︎
  45. Id. at 414. ↩︎
  46. Id. at 418. ↩︎
  47. Id. at 419. ↩︎
  48. Id. ↩︎
  49. W. Va State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). ↩︎
  50. Johnson, 491 U.S. at 435 (Rehnquist, C.J., dissenting). ↩︎
  51. .Id. at 422. ↩︎
  52. Id. at 435. ↩︎
  53. Id. at 432. ↩︎
  54. United States v. Stevens, 559 U.S. 460, 465 (2010) (quoting 18 U.S.C. § 48(b)). ↩︎
  55. Id. ↩︎
  56. Id. at 470. ↩︎
  57. 458 U.S. 747 (1982). ↩︎
  58. Stevens, 559 U.S. at 471. ↩︎
  59. Id. at 471–72 (quoting New York v. Ferber, 458 U.S. 747, 759 (1982)). ↩︎
  60. Id. at 474. ↩︎
  61. Johnson, 491 U.S. at 435 (Rehnquist, C.J., dissenting). ↩︎
  62. Stevens, 559 U.S. at 482 (Alito, J., dissenting). ↩︎
  63. Id. at 491. ↩︎
  64. Id. at 493. ↩︎
  65. Id. ↩︎
  66. Id. at 495. ↩︎
  67. Id. ↩︎
  68. Id. (citing 18 U.S.C. § 2252, § 48(b)). ↩︎
  69. Id. at 482, 498. ↩︎
  70. Id. at 496. ↩︎
  71. Id. at 497–98. ↩︎
  72. Id. at 470 (majority opinion). ↩︎
  73. Snyder v. Phelps, 562 U.S. 443, 448 (2011). ↩︎
  74. Id. at 450. ↩︎
  75. Id. at 448, 454. ↩︎
  76. Id. at 449. ↩︎
  77. See, e.g., Connick v. Myers, 461 U.S. 138, 146 (1983); and San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (cited in id. at 453), which respectively define speech dealing with matters of a public concern as “fairly considered as relating to any matter of political, social, or other concern to the community” or as “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.[…]” ↩︎
  78. Snyder, 562 U.S. at 454. ↩︎
  79. Id. at 456. ↩︎
  80. Id. at 458. ↩︎
  81. Id. at 470 (Alito, J., dissenting). ↩︎
  82. Id. at 471. ↩︎
  83. Id. at 458 (majority opinion). ↩︎
  84. The majority even acknowledges Snyder’s testimony about the “severity of his emotional injuries,” as he was “unable to separate the thought of his dead son from his thoughts of Westboro’s picketing” and would regularly become “tearful, angry, and physically ill when he [thought] about it.” Id. at 450. ↩︎
  85. Id. at 464 (Alito, J., dissenting). ↩︎
  86. 22 N.E. 188 (1889). ↩︎
  87. Vermeule, supra note 9, at 77 (citing Antonin Scalia & Bryan A. Garner, Reading Law 234–39 (2012)). ↩︎
  88. Vermeule, supra note 9, at 80. ↩︎
  89. Id. at 81 (citing Riggs, 22 N.E. at 190). ↩︎
  90. Id. at 82. ↩︎
  91. Id. at 83. ↩︎
  92. United States v. Alvarez, 567 U.S. 709, 713–14 (2012). ↩︎
  93. Id. at 714. ↩︎
  94. Id. at 716. ↩︎
  95. Id. at 717 (citing United States v. Stevens, 559 U.S. 460, 470 (2010)). ↩︎
  96. Id. at 717, 719. ↩︎
  97. Id. at 722. ↩︎
  98. Id. at 723. ↩︎
  99. Id. at 726. ↩︎
  100. Id. at 726–27. ↩︎
  101. Id. at 729. ↩︎
  102. Id. at 741–42 (Alito, J., dissenting). ↩︎
  103. In the opening paragraph of Kennedy’s majority opinion, for example, Kennedy begins by detailing a list of other somewhat lunatic lies that Alvarez had previously made: “Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.” Id. at 713. ↩︎
  104. Id. at 743 (Alito, J., dissenting). ↩︎
  105. Id. ↩︎
  106. Id. at 744. ↩︎
  107. Id. at 745. ↩︎
  108. Id. at 750. ↩︎
  109. Id. ↩︎
  110. Id. at 752. ↩︎
Articles

An Ecological Approach to Data Governance

JLEPP

[PDF]

Jasmine McNealy 1*

I. Introduction

The products of algorithmic and decision systems unleashed in the wild––put to use by governments, corporations, and civil society organizations––significantly impact how life happens and society functions.  Recently, a Facebook whistleblower detailed how the inability to recognize these significant impacts, and the failure of federal lawmakers to protect people against them, has led to an exponential concentration of power.2  Machine learning systems have produced biased outcomes in consequential areas like school admissions,3 government services,4 financial services,5 and healthcare.6  Algorithmic social media failures influence public opinion about governance, public health, and body image.7  Research demonstrates that distrust in automated systems is related to individual perceptions about whether a system can do what it promises to do.8  Therefore, when algorithms produce outcomes with tremendous, disparate, negative impacts, it results in calls for some kind of course correction. 

Current such calls reflect the concern of many that there is a limited understanding of how a particular system works and comes to its decision.  Demands for transparency and explainability in algorithmic systems are increasing, even spilling into the courts.  In 2017, for example, the United States Supreme Court denied an appeal from a state supreme court hoping to force algorithmic transparency under constitutional grounds.9  In Loomis v. Wisconsin, a criminal defendant argued that the use of the COMPAS risk assessment tool at sentencing violated his right to due process “either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account.”10  The Wisconsin Supreme Court ultimately concluded that using the risk assessment tool for sentencing does not violate due process “if used properly, observing the limitations and cautions.”11  This decision has been panned as a threat to constitutional due process.12  It also illustrates the need for accountability for algorithms used in governance.13

Loomis reflects a concern about the black box nature of algorithmic tools and systems.  Black boxes are those systems “colonized by the logic of secrecy,”14 having practices invisible to humans, and yet having significant impacts on our lives and the environments––legal, financial, social––that we inhabit.  An “opening” of the black box requires more than just knowing the algorithmic processes, but understanding them as well, “doing neuroscience” as some have called it.15  Yet, legislators are considering how to require explainability for algorithmic systems; the right to explanation is included, for instance, in the EU’s General Data Protection Regulation (GDPR).16  Some argue, however, that explainability and transparency may be no match for algorithmic complexity.17  

One way to understand complex ideas is through analogy.  If, for example, algorithms are analogized to recipes,18 they assist in illustrating that these systems are programmed to use “raw” materials to produce other materials––decisions and/or predictions.  Algorithms, as representation systems, provide “different ways of organizing, clustering, arranging and classifying concepts, and of establishing complex relations between them” and allowing for the production of correlations, or the formulation of (perceived) relationships.19  And although this analogy may not completely identify or allow for understanding the exact ways AI systems produce their decisions, it recognizes that these systems are based on data.20  Because of this, a critical consideration of the data used to feed algorithms and how it is governed may be a way to circumvent the black box nature of these systems, and to obtain a better understanding of how they operate.

This essay offers a critical investigation of data and how it should be defined and governed to produce more transparency and mitigate possible harms to individuals and communities because of its use in AI systems.  In essence, this essay argues that data should be viewed as a networked representation or observation.  This definition recognizes that data is not singular, but always comes attached with labels, contexts, and biases fastened from its inception, if not collection, and that attachments increase depending on its place in the ecosystem.  This view also requires a different strategy for governance––one that acknowledges data’s nature and networked existence, and moves beyond the individualistic, consent-based current models.  Such an approach allows for the creation of better frameworks for collection, use, storage, access, and security of data.  At the same time, this writing lays out a research agenda for further exploration of frameworks for harm reduction.

II. (Re)Defining Data

Data is governed based on how it is imagined and is defined.  Property language and the rhetoric of ownership in relation to personal data, create a description of data divorced from individuals and ignore the potential for harm.  Phrases like the colloquial “my data” or “their data,” depict data as though they were a singular, unattached object.  The ongoing controversy of the increasing use of genetic ancestry databases by law enforcement may help to illustrate the potential for harm in this kind of understanding of data.  Over the past few years, the popularity of DNA matching and ancestry information has grown, spurred, no doubt, by the speed of DNA sequencing and the relative inexpensiveness of home testing.21  This has meant the expansion of genetic testing outside of healthcare and paternity contexts, and into homes.  Further, the popularity of ancestry-focused media content like, “Who Do You Think You Are?” and “Finding Your Roots” further drive interests in genetic testing and ancestry.22

The commercial genetic testing industry in the United States has grown immensely, dominated by players like Ancestry.com, 23andMe, and GEDMatch.  Individuals can purchase at-home testing kits that require them to send in a quantity of saliva or a cheek swab by mail.  These are then tested for connections to samples already in the organization’s database, returning possible results about heritage, ethnic identity, and long-lost relatives.  There is a genre of YouTube and other social media posts in which users reveal their genetic ancestry results, expressing ranges of emotions from surprise to anger to confusion.23 

While the popularity of direct to consumer DNA ancestry testing has been interesting for individuals, the possibilities of this database has not gone unnoticed by law enforcement officials.24  In fact, over the past few years, the number of law enforcement requests for access to the data stored by these organizations has increased, no doubt spurred by the use by law enforcement in California to catch the famed Golden State Killer (GSK).25  In that case, police requested access to the site GEDMatch to test against a sample of DNA left by the alleged killer at a crime scene.  With access, law enforcement found someone who matched with a percentage of the police sample, indicating a “cousin” relationship. 

The relative success of the GSK case has had reverberations both for law enforcement and the commercial DNA testing industry.  First, law enforcement are now seeking further access to these databases.26  This “crisis” has caused lawmakers in Utah to propose legislation that would deny law enforcement access to these databases.27  Though such a proposal coming out of Utah may seem strange on its face, it is important to note that one of the largest commercial DNA testing organizations, Ancestry, is located in Utah and was founded by graduates of Brigham Young University.28  For the DNA organizations themselves, the increase in law enforcement interest has required that they make critical decisions about access and searching of their sites, as well as terms of service for users.  At the time of the GSK case, GEDMatch had a policy that allowed site users to opt-in to law enforcement searches.29 After the GSK case the organization changed its terms of service to state, “We may disclose your Raw Data, personal information, and/or Genealogy Data if it is necessary to comply with a legal obligation such as a subpoena or warrant. We will attempt to alert you to this disclosure …unless notification is prohibited under law.”  In 2019, GEDMatch was acquired by a forensic genomics firm that has stated that it cooperates with law enforcement.30

The use by law enforcement of DNA databases without permission is already more than alarming.  Advances in AI technology for use in analyzing the data stored in these systems is even more disturbing.  Recently, for example, researchers have touted how advances in algorithmic technology could revolutionize DNA analysis for criminal investigations.31  Lacking, however, is a full consideration of what moving forward with such innovations could mean for civil rights, especially if mistakes are made in the data collection and aggregation processes.32  Instead, the focus has been on technology and how advances in technology might assist with data analysis.  This may be a result of continued property-based language instead of language that more accurately reflects the nature of this kind of data.

Scholars have argued for other definitions of data that are useful for examining.  One such definition is proposed by Ferryman under her conceptualization of data as gift as a framework for relationships related to data and participation.33  Ferryman uses Marcel Mauss’ work on indigenous cultures and gift-giving as a framework for her definition.  At the most basic level, Mauss found three elements for gifts: gift-giving, gift-receiving, and an obligation to reciprocate a gift.34  From this Ferryman distills one principle: “there is no such thing as a free gift.”  Therefore, data should be thought of as action that comes with the obligation for the individual or organization receiving it to reciprocate in some way.  In the case of health and medical research, where data collection is integral to advances in treatment and diagnosis, it would place an obligation on the researchers to provide some kind of tangible benefit to the individuals, perhaps, in the form of relationships, making communities––particularly marginalized and vulnerable groups––into stakeholders instead of mere data subjects.

While the Ferryman’s concept of data as gift is meritorious and an important idea for building frameworks for interactions with communities, particularly in the public health context, it does not provide a true description of the thing at issue.  Noted library and information scholar Christine Borgman defined data as: “Representations of observations, objects, or other entities used as evidence of phenomena for the purposes of research or scholarship.”35  Borgman uses this concept of data in connection to an explication of data stewardship, particularly the ideal of FAIR: findable, accessible, interoperable, and reusable. Inherent in this definition of data is the emphasis on use for research or scholarship.  If using a broad definition of research, this may work.  However, this definition seems limited to a particular kind of use of data.  It also misses the networked nature of data. 

A broader and more complete definition of data is that of a networked representation or observation.  This definition recognizes that data is not singular, but always comes attached with labels, contexts, and biases fastened from its inception, if not collection, and that attachments increase depending on its place in an ecosystem.  An illustration from basic chemistry may be helpful.  As noted above, data is usually conceptualized as a singular object, divorced from others.  In that way, data is analogized to a solo atom.  Yet, many of the elements on the periodic table of elements never appear as a single, solitary atom, but as molecules of more than one atom of the same nature.36 

A similar thing happens with data––there’s never just one datum collected, but several kinds of data.  Even if a specific “data point” were examined, that particular point, too, would be endowed with other data that shape it, including the researcher’s choice in topic, participants, and research questions, among other things.37  Likewise, an atom is made up of smaller molecular particles––protons, neutrons, and electrons––that shape its characteristics.  An even more accurate definition of data, then, would be a system of networked representations or observations.  This definition recognizes how data are used to make inferences, for evaluation, measurement, assessment, etc. of individuals, organizations, and programs.  To do this, the data that represent must be arranged to decide or define relationships.

III. Why Data Governance?

A critique of data governance first requires an adequate definition of governance. Governance is more than government; it “refers to all processes of governing, whether undertaken by a government, market, or network, whether over a family, tribe, formal or informal organization, or territory, and whether through laws, norms, power, or language.”38  Governance can be also described as “the mechanisms, processes and institutions, through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences.”39  It is the word “process,” including social processes, that is of great importance, signifying that governance is more than just law; governance embodies both process and structure.40

More than just the process, it is the process of decision-making that is the crux of governance.  Decision-making requires the recognition and use of relationships, including the connections between actions and outcomes, as well as between products and services and organizations; it shapes the “rights, rules, preferences and resources that structure political outcomes.”41  A failure in governance is the use of law as a proxy for good decision-making, in place of recognizing the impacts of law on individuals and organizations.  Therefore, data governance includes interventions aimed at “chang[ing..] data-related incentives, knowledge, institutions, decision-making, and behaviors.”42  More specifically, this definition encompasses the processes, decisions, and rules that organizations––governmental, civil society, and corporate––undertake when dealing with data. This also includes any partnership or so-called co-governance agreements between different organizations or networks of organizations. 

Key to data governance is an understanding of what Sean McDonald calls the digital “supply chain”– “real-time network[s]” where organizations collect and move data through a system.43  This means identifying the various organizations, motivations, and uses for data, as well as the possible conflicts and impact that may arise.  The supply chain is integral to the data lifecycle, the stages of data from capture through interpretation and including storage.  It is also important for understanding the possible impacts of data use.  A recent report of the British Royal Society focused on good data governance across the lifecycle and identified issues that may arise with data that require governance infrastructure be set in place: data integrity, bias in data, accidental collection, crossing sectors, statistical profiling and stereotyping, transparency, accountability, and impact.44  Current data governance regimes fail to meet both the requirements of good governance and to anticipate the issues that will emerge during the data lifecycle. 

In the years since the coining of the phrase “big data,” there have been many guidelines, expressions of policy, and attempts at legislation to impede and/or mitigate the harms proffered by the collection of massive amounts of personal data.  Technological advancements and the widespread centralization of personal data shared in networked platforms, too, have enticed legislators to attempt to do something about the possible harms.  In the United States this has translated to the proposal and sometimes passage of bills that turn out to be sectoral, vague, underinclusive, impractical once passed, and/or so flexible so as to not really make much difference or cause added headaches for the people they were aimed at protecting.

While data governance includes legislation, failures in legislative execution demonstrate that laws are only part of the governance picture.  Some attempts at data governance use a hybrid model––mixing several governance schemes in an attempt to achieve policy goals.  An example of a kind of hybrid model and arguably ineffective governance scheme is used in the United States in the regulation of privacy and data protection, which sees an uncoordinated mix of state and federal agencies like the Federal Trade Commission and state attorneys general, as well as state and federal legislation and regulation.  Tasked with protecting consumers from unfair and deceptive business claims and practices, the FTC’s power derives from federal legislation.45   While not specifically mandated to work in the area of consumer privacy, this has come under its powers.  The FTC has been involved with requiring business transparency about privacy with privacy policy regulations for example.  At the same time, and under the same privacy threats, the FTC may not take on all data practices that evoke individual privacy; the Agency would need a significant increase in funding to do so.  Further, under many of the privacy “regulations,” individuals have no privacy right of action but must wait on the FTC to enforce the law’s prohibitions.  This is a concentration of power in a particular agency.  This does not mean that individuals have no recourse against organizations.  Of course, state and other laws may allow civil suits or state attorneys general to pursue criminal penalties.  It does demonstrate how hybrid systems, without coordination of organizations and some form of omnibus structure and decision-making and foundation, can limit data protections. 

Data protection is a significant concern in emerging scholarship and policy on platform governance.  Although not the focus of this article, it is important to mention platform governance, which has emerged in response to various scandals and revelations about media and technology that have become integral and ubiquitous.  Platform governance is a frame that recognizes that “platforms are fundamentally political actors that make important political decisions while engineering what has become the global infrastructure of free expression,”46  while at the same time recognizing that organizations are subject to external governance.  This then requires the identification of the various actors involved in platform governance including the usual suspects of government, users, and the platforms themselves, but also including related organizations like advertisers, data-brokers, and “other parties that participate in the platform’s ecosystem.”47

In fact, “platform-driven ecosystems” that allow multiple actors to participate have been called the “future of the digital age.”48  Platforms—organizations that “leverage networked technologies to facilitate economic exchange, transfer information, connect people, and make predictions,”49 continue to emerge as the business model of choice for organizations across several industries.  Platforms and the ecosystems that emerge surrounding them, are, in fact governance networks that take, for the most part, the form of a hybrid governance network: having the participants in the network engaged with a central organization (the platform organization itself).  Unlike the lead-organization governed network identified by Provan and Kenis,50 in platform ecosystems power is concentrated in the lead organization, which governs51 through various agreements, policies, and contracts with other actors in the system.  Platforms are significant for data collection, use, security, etc.  It is important, then, to comprehend the roles they play and their relationships to data and other actors and actants in the data ecosystem.

IV. An Ecological Approach to Data and Governance

Platforms provide infrastructure for parts of the data ecosystem.  The study of ecology, usually considered under the umbrella of biology or biological science, is the study of systems and structures.  That is, the field of ecology concerns itself with not only a specific item, say a human or badger.  Instead, ecology examines the relationships between the item and other items and systems in its physical environment.52   Human ecology, in particular, centers humans as the organism of interest, with human ecology theory finding the significance in studying both the human and their social interactions.53

In human development, ecological systems theory details how a person’s immediate environment along with “social context, both formal and informal” in which the environments rested influenced the process of human development.54  Bronfenbrenner proposed a change in the traditional method of considering human development, which focused either on naturalistic observations of humans at particular points of development, often considering only one “being” at a time and in one setting.  He argued that true understanding of human development “requires examination of multiperson systems of interaction not limited to a single setting and must take into account aspects of the environment beyond the immediate situation containing the subject,”55 which required envisioning the “environment” for a human as a model of four nested systems: micro, meso, exo, and macro.  In brief, the microsystem includes the direct subject of study. In human development, this would be the human.  The microsystem rests within the mesosystem, which contains that human’s relationships or connections.  The exosystem, which encompasses the mesosystem, includes all of the formal and informal structures that influence human development.  Finally, the macrosystem represents the various environments in which the human, their relationships, and structures inhabit, including the social, political, economic, and legal, among others.  According to Bronfenbrenner, this kind of ecological model represents the complexity of human development and ecology, taking into account the various things that shape who a person is and becomes.56

This kind of ecological thinking––considering relationships and connections between things––has been used outside of the physical sciences in social sciences like psychology, mass communication, education, and social work.  In the scholarship on community health interventions in particular, the approach is to consider several layers of systems to understand and shape specific outcomes for those living within a community.  Stokols chronicles the social ecological approach used for studying community health campaigns.57 This set of principles offers a “framework for understanding the dynamic interplay among persons, groups, and their sociophysical milieus.”58  Within this context, the paradigm recognizes the physical, social, and cultural dimensions to health, and incorporates terminology from ecology such as interdependence, negative feedback, and amplification, among others.  Ultimately, this framework is interdisciplinary.

Likewise, in communication research, scholars have taken ecological approaches to the study of journalism and other media structures and their influence on humans and human behavior.  An example of mass communication research using an ecological approach to studying media is communication infrastructure theory.  Promulgated by Sandra Ball-Rokeach and several of her colleagues, communication infrastructure theory deems storytelling networks as essential for the development and sustainment of civic engagement.59  In particular, the theory argues that communication resources enable individuals to engage in collective action, and that “storytelling networks” set in a communication action context describes the nexus of interpersonal, organizational, and institutional communication relationships that assist in cultivating neighborhood belonging, which can lead to civic engagement. CIT, then, requires a consideration of three different kinds of storytelling agents: micro––the residents of a community; meso––the specific neighborhood; and macro––the entire community.60  The aim of using CIT as a framework is to assist with understanding the motivations for specific kinds of civic engagement and participation, as well as identifying systems and structures that influence participation.  Of course, an environmental or ecology-related approach is not new for law and policy particularly as it relates to information.  In discussions of policy and the public domain, scholars have considered the analogies of environmentalism61 and the use of raw materials.62

An ecological approach for considering how data should be governed is appropriate because it assists with identifying the specific thing to be governed, that thing’s relationships/connections that can and/or should influence govern choices, the institutions and societal structures that impact govern and who will be tasked with enforcement and implementation, and the environment(s) in which data governance must occur.  All of these many factors must be examined to achieve anywhere near a comprehensive and adequate response to the massive volume of data collection, continued surveillance, and data misuse.  The next section details the four nested systems of data governance ecology in this approach, providing descriptions of ongoing genetic databases conflicts to help illustrate the importance of considering the various levels of the model. 

A. Microsystem–data representations

Like with Bronfenbrenner’s original explication of the ecological approach to human development, this ecological approach to data governance begins with the microsystem, encompassing data, defined above as networked representations.  This means that within this system is the foundation layer of the data itself.  Understanding the microsystem essential for good ecological governance because it identifies the two functions of data: as thing and as action.  Data as thing applies Buckland’s conceptualization of “information as thing”––”objects . . . that are regarded as being informative”63 to data, making it of interest to research systems.  Data as a thing allows organizations to make inferences.  As the volume of data increases, uncertainty and equivocality decrease for organizations.  Therefore, data as thing can be viewed as evidence, “though without implying that [the evidence is] necessarily accurate, useful, or even pertinent to the user’s purposes.”64  Important in this idea of data-as-thing-as-evidence is the implication that the “thing” is passive – it does nothing, but something is done to it or with it. 

In contrast, data as action data as process; it changes what organizations know; it informs. Data as action also harkens to Ferryman’s definition of data as requiring reciprocity. In the case of organizations collecting data, this will mean that the act of data collection initiates certain duties.65  Future research must consider both data as thing and data as action to inform about how they behave in the data ecosystem, and their relations. 

B. Meso–data relationships

Surrounding the microsystem is the mesosystem, which considers the relationships and connections to data.  If our definition of data is that of a networked representation.  It is important to consider what things are in the network.  Bronfenbrenner describes the mesosystem as a system of microsystems.  For data, this would mean examining both the connections that data has with other kinds of data as well as the attachments and labels connected with the data.  The mesosystem also encompasses all of the structures or settings that shape data over the life cycle. 

In the GEDMatch DNA case in which the Golden State Killer was identified through law enforcement use of a commercial DNA database, understanding the nature of the various relationships that were implicated in a DNA search may have at least given state legislators pause about the kinds of laws necessary to ensure user privacy.  On the federal level, of course, the Genetic Information Non-discrimination Act (GINA) exists to prohibit discrimination based on genetic data.  But GINA is narrowly focused on discrimination and only applies to the healthcare and employment sectors.  Several state laws focused on genetic non-discrimination also exist; these too narrowly focused on insurance and employment.  This fails to prevent use of genetic data for purposed beyond particular expectations and ignores the relational harms that can be caused by misuse of the data.  Future research, then, must identify and investigate the influence of these data relationships, in order to create adequate policy for governance.

C. Exo–institutions/community

The exosystem includes all of the societal and institutional structures that mediate data and data governance.  These structures will be tasked with implementing and enforcing data governance, but also implicate how they use data, which leads to the need for stronger data governance regulation.  This system also identifies the kinds of infrastructure necessary for providing adequate data governance and embodies all of the formal and informal social structures that influence the data lifecycle.  This includes all of the major societal institutions, technology, and platforms, as well as governmental and civil society organizations.66  That data encounters over the lifecycle or that shapes how data moves through the lifecycle. 

At the same time, an exosystem “has been defined as consisting of one or more settings that do not involve … an active participant but in which events occur that affect, or are affected by, what happens in that setting.”67  Therefore, exosystems concern settings and actors that indirectly affect data.  It is important to investigate the structures in the exosystem as though they may not have direct connections to individuals, they nonetheless may impact how data is collected, used, etc.  As an example, many social media sites, employment databases for various public professions, as well as law enforcement make photos available online.  These photos have become the fuel for organizations developing facial recognition systems that scrape social media and other databases to train their software.  An ecological approach would examine these facial recognition platforms, their attending organizations, as well as the spaces where they collect data.  It will also be important to understand the law, or lack thereof, as boundary infrastructure in this line of research.

D. Macro–environment(s) i.e., social, political, economic, etc.

The macrosystem is the environment(s) in which the micro, meso, and exo systems rest.  Under Bronfenbrenner’s conceptualization, the macrosystem “refers not to specific contexts … but to general prototypes, existing in the culture or subculture, that set the pattern for the structures and activities occurring at the concrete level.”68  These prototypes are called the “blueprints” for society because they hold true for both formal and informal settings69.  Culture is expressed in law, customs, belief systems, economic structures, etc.  It is important for future research to examine how these prototypes shape all of the other systems.  For data, this would mean thorough investigations of how culture and subcultures shape the environment for data and are then expressed in how various organizations and individuals respond. 

At the same time, it is important to consider how culture actually behaves.  A criticism of Bronfenbrenner’s theory is that it relegates culture to the macrosystem, as though culture does not permeate all systems in human ecology.70  Culture permeates everything, structure, and setting in society.  Therefore, ignoring culture presents a view of data and the institutions and organizations connected with data as neutral, in spite of the overwhelming evidence to the contrary.71  This requires a reconsideration of how the macrosystem operates.  While traditionally viewed as the most outer oval of the model, or the largest nesting doll, it would be more accurate to view the macrosystem as closer to atmospheric, flowing through all other systems and circulating throughout the various systems, closely related to Appadurai’s conception of scapes that influence information flows and denote the fluidity of five dimensions of cultural flows.72  Though Appadurai applied this suffix to characteristics in relation to the international capital, it works with data, which too is subject to international flows.

V. Data Ecology in Action

Ecology recognizes that things within a system, or a system of systems, impact and/or change other things. But ecology and ecosystems are not clean models; they are messy.

This is an actual ecosystem – containing representations (data) that encounter other data, and communities, where institutions reside that enforce and enable flows, all embedded within economic, legal, and social, among other, environments. The messiness of this system is the point. A simple analogy, like that of property, does not work for a system like data where humans are involved. 

A recent controversy with the U.S. National Institutes of Health All of Us precision medicine initiative illustrates the necessity of considering an ecological approach to data governance. All of Us is a research program that aims to recruit one million people in the U.S. from which to gather health data and specimens.73  This information will be used for biomedical research and includes “health questionnaires, electronic health records (EHRs), physical measurements, the use of digital health technology, and the collection and analysis of biospecimens.”74  The system is also billed as allowing researchers “researchers to take into account individual differences in lifestyle, socioeconomic factors, environment, and biologic characteristics in order to advance precision diagnosis, prevention, and treatment.”75 

But the breadth of this research data and the possible inferences that can be made from it are of concern for several tribal communities.  In the U.S., there are nearly 600 federally recognized Tribal governments, which exercise sovereignty over many vectors of tribal life including public health data.76  In 2018, however, it was reported that the NIH was bypassing tribal data sovereignty to collect the data by recruiting in urban areas containing large populations of Native Americans, without consulting with tribes or the National Congress of American Indians.77  At issue is the sharing of EHRs and other data with pharmaceutical and other organizations.  Further, a question remains about the applicability of the Health Insurance Portability and Accountability Act (“HIPAA”) to the organizations would be able to access the information.78

For some, the actions of the NIH and other researchers and programs who have sought indigenous data is a form of biocolonialism––the assertion of control, ownership, and use of biological data and specimens without or beyond the guidance of tribal governments and without direct benefit.79  The result has been a call for both decolonizing data80 and for the recognition of indigenous data sovereignty.81  The move for indigenous data sovereignty has been long, but the first recognized formal international convening happened in 2015, with a meeting of indigenous researchers in Australia.82  Following this, collectives of indigenous formed groups and established charters aimed at creating guidance for data sovereignty.  In the U.S. one such group is the US Indigenous Data Sovereignty Network (“USIDSN”) that aims to “promot[e] Indigenous data sovereignty through decolonizing data and Indigenous data governance.”83  For collectives like USIDSN the principles of data sovereignty reflect a different framework than that traditionally used in the Western governance.  Sovereignty, under tribal governance may take several forms,84 but offers a way forward for tribes with the aim of protecting privacy, preempting extractive research, and recognizing the implications of data use on the many interconnected facets of life for Native Americans.85

The All of Us controversy demonstrates both the need for more adequate data governance that recognizes the implications of the data ecosystem, as well as the need for action ensuring that the awareness of these systems is included in the development of its frameworks.  Good governance, in general, is collective, responsive, equitable, and lawful.  In studying and enacting ecological data governance, we must use collective and participatory approaches to the creation of frameworks.  This requires engagement with traditionally marginalized and vulnerable communities, many of whom are disparately impacted by data collection and uses.  It also demands that organizations––whether civic, civil society, or corporate–– be responsive to collective governance decisions.  Accountability necessitates legislation as an encouragement. Legislation also acts as infrastructure, and good data governance requires infrastructure, which will include platforms and mechanisms that perform the frameworks produced. 

This essay has sought to provide a brief overview of a way forward for considering and governing the materials that feed the ever-burgeoning AI technological ecosystem.  It further provides a research agenda for exploring exactly how this framework could work while focusing on the various aspects of the data governance scheme.  It will be ever more important to investigate methods of harm reduction as the use of algorithmic systems expands.

  1. * Associate Professor, University of Florida. Much appreciation goes to the helpful reviewers and participants at the Privacy Law Scholars Conference. ↩︎
  2. See John D. McKinnon & Ryan Tracy, Facebook Whistleblower’s Testimony Builds Momentum for Tougher Tech Laws, Wall St. J., https://www.wsj.com/articles/facebook-whistleblower-frances-haugen-set-to-appear-before-senate-panel-11633426201, (Oct. 5, 2021, 5:21 PM). ↩︎
  3. See D. J. Pangburn, Schools Are Using Software to Help Pick Who Gets In. What Could Go Wrong?, Fast Co. (May 17, 2019), https://www.fastcompany.com/90342596/schools-are-quietly-turning-to-ai-to-help-pick-who-gets-in-what-could-go-wrong; Oscar Schwartz, Untold History of AI: Algorithmic Bias Was Born in the 1980s, IEEE Spectrum (Apr. 15, 2019), https://spectrum.ieee.org/tech-talk/tech-history/dawn-of-electronics/untold-history-of-ai-the-birth-of-machine-bias.  ↩︎
  4. See Faith Gordon, Book Review, 1 L. Tech. Humans 162, 162 (2019) (reviewing Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor (2018)), Rebecca Heilweil, Why Algorithms Can Be Racist and Sexist, Vox (Feb. 18, 2020, 12:20 PM), https://www.vox.com/recode/2020/2/18/21121286/algorithms-bias-discrimination-facial-recognition-transparency. ↩︎
  5. See Jennifer Miller, Is an Algorithm Less Racist Than a Loan Officer?, N.Y. Times (Sep. 18, 2020), https://www.nytimes.com/2020/09/18/business/digital-mortgages.html; Michelle Seng Ah Lee & Luciano Floridi, Algorithmic Fairness in Mortgage Lending: From Absolute Conditions to Relational Trade-offs, 31 Minds & Machs. 165 (2021). ↩︎
  6. See Heidi Ledford, Millions Affected by Racial Bias in Health-Care Algorithm, 574 Nature 608 (2019); Eliza Strickland, Health Care Algorithms Show Racial Bias, IEEE Spectrum, Jan. 2020, at 6 (2020). ↩︎
  7. See McKinnon & Tracy, supra note 1. ↩︎
  8. See Mary T. Dzindolet et al., The Role of Trust in Automation Reliance, 58 Int’l J. Hum.-Comput. Stud. 697 (2003); Jiun-Yin Jian et al., Foundations for an Empirically Determined Scale of Trust in Automated Systems, 4 Int’l J. Cognitive Ergonomics 53 (2000); John O’Donovan & Barry Smyth, Trust in Recommender Systems, in IUI ‘05: Procs. of the 10th Int’l Conf. on Intelligent User Interfaces 167 (2005), http://portal.acm.org/citation.cfm?doid=1040830.1040870. ↩︎
  9. Loomis v. Wisconsin, 137 S. Ct 2290 (2017) (cert. denied). ↩︎
  10. State v. Loomis, 881 N.W. 2d 749, 753 (Wis. 2016). ↩︎
  11. Id. at 753. ↩︎
  12. See Katherine Freeman, Algorithmic Injustice: How the Wisconsin Supreme Court Failed to Protect Due Process Rights in State v. Loomis, 18 N.C. J. L. & Tech. 75 (2016); John Lightbourne, Damned Lies & Criminal Sentencing Using Evidence-Based Tools, 15 Duke L. & Tech. Rev. 327 (2017). ↩︎
  13. See Han-Wei Liu et al., Beyond State v. Loomis: Artificial Intelligence, Government Algorithmization, and Accountability, 27 Int’l J. L. & Info. Tech. 122 (2019). ↩︎
  14. Frank Pasquale, The Black Box Society 2 (2015). ↩︎
  15. Davide Castelvecchi, The Black Box of AI, 538 Nature 20 (2016). ↩︎
  16. But see Sandra Wachter et al., Counterfactual Explanations Without Opening the Black Box: Automated Decisions and the GDPR, 31 Harv. J. L. & Tech. 841 (2018); Sandra Wachter et al., Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation, 7 Int’l Data Priv. L. 76 (2017) (arguing that the GDPR does not actually create an explainability requirement).
    ↩︎
  17. See Yavar Bathaee, The Artificial Intelligence Black Box and the Failure of Intent and Causation, 31 Harv. J. L. & Tech. 889, 891 (2017). ↩︎
  18. See Kevin D. Ashley & Edwina L. Rissland, Law, Learning and Representation, 150 A.I. 17 (2003); M. Galieh Gunagama, Generative Algorithms in Alternative Design Exploration, SHS Web Conf., vol. 41 2018, at 2.  ↩︎
  19. Stuart Hall, Representation: Cultural Representation and Signifying Practices 15, 17 (1997). ↩︎
  20. See Cathy O’Neil, Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy (2016); Gordon, supra note 3. ↩︎
  21. See Jennifer King, “Becoming Part of Something Bigger”: Direct to Consumer Genetic Testing, Privacy, and Personal Disclosure, Proc. ACM Hum.-Computing Interaction, Nov. 2019, at 158:1; Antonio Regalado, 2017 Was the Year Consumer DNA Testing Blew Up, MIT Tech. Rev. (Feb. 12, 2018), https://www.technologyreview.com/2018/02/12/145676/2017-was-the-year-consumer-dna-testing-blew-up/. ↩︎
  22. See Ashley Barnwell, The Genealogy Craze: Authoring an Authentic Identity through Family History Research, 10 Life Writing 261, 262 (2013); Wendy D. Roth & Biorn Ivemark, Genetic Options: The Impact of Genetic Ancestry Testing on Consumers’ Racial and Ethnic Identities, 124 Am. J. Socio. 150 (2018). ↩︎
  23. See Anna Harris et al., Autobiologies on YouTube: Narratives of Direct-to-Consumer Genetic Testing, 33 New Genetics & Soc’y 60 (2014). ↩︎
  24. See Claire Abrahamson, Guilt by Genetic Association: The Fourth Amendment and the Search of Private Genetic Databases by Law Enforcement, 87 Fordham L. Rev. 50 (2019); Christi J. Guerrini et al., Should Police Have Access to Genetic Genealogy Databases? Capturing the Golden State Killer and Other Criminals Using a Controversial New Forensic Technique, PLOS. Biol., Oct. 2018, at 1. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6168121/; Rachele M. Hendricks-Sturrup et al., Direct-to-Consumer Genetic Testing and Potential Loopholes in Protecting Consumer Privacy and Nondiscrimination, 321 J. Am. Med. Assoc. 1869 (2019); Joseph Zabel, The Killer Inside Us: Law, Ethics, and the Forensic Use of Family Genetics, 24 U.C. Berkeley J. Crim. L. 47 (2019). ↩︎
  25. See Claire Abrahamson, Guilt by Genetic Association: The Fourth Amendment and the Search of Private Genetic Databases by Law Enforcement, 87 Fordham L. Rev. 50 (2019); Christi J. Guerrini et al., Should Police Have Access to Genetic Genealogy Databases? Capturing the Golden State Killer and Other Criminals Using a Controversial New Forensic Technique, PLOS. Biol., Oct. 2018, at 1. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6168121/; Rachele M. Hendricks-Sturrup et al., Direct-to-Consumer Genetic Testing and Potential Loopholes in Protecting Consumer Privacy and Nondiscrimination, 321 J. Am. Med. Assoc. 1869 (2019); Joseph Zabel, The Killer Inside Us: Law, Ethics, and the Forensic Use of Family Genetics, 24 U.C. Berkeley J. Crim. L. 47 (2019). ↩︎
  26. See Megan Molteni, The Creepy Genetics Behind the Golden State Killer Case, Wired (Apr. 27, 2018, 2:00 PM), https://www.wired.com/story/detectives-cracked-the-golden-state-killer-case-using-genetics/; Heather Murphy, She Helped Crack the Golden State Killer Case. Here’s What She’s Going to Do Next., N.Y. Times (Aug. 29, 2018), https://www.nytimes.com/2018/08/29/science/barbara-rae-venter-gsk.html; Sarah Zhang, How a Genealogy Website Led to the Alleged Golden State Killer, Atlantic (Apr. 27, 2018), https://www.theatlantic.com/science/archive/2018/04/golden-state-killer-east-area-rapist-dna-genealogy/559070/. ↩︎
  27. See Emma Coleman, One State May Become the First to Ban Law Enforcement Use of Genealogy Databases, Route Fifty (Jan. 21, 2020), https://www.routefifty.com/public-safety/2020/01/utah-dna-databases/162544/. ↩︎
  28. See Jennifer Graham, The Company That Analyzed Your DNA Just Sold the Results to Someone Else. Really, What Are the Risks?, Deseret News (Aug. 21, 2018, 2:26 PM), https://www.deseret.com/2018/8/21/20651592/the-company-that-analyzed-your-dna-just-sold-the-results-to-someone-else-really-what-are-the-risks; Stuart Leavenworth, DNA for Sale: Ancestry Wants Your Spit, Your DNA and Your Trust. Should You Give Them All 3?, Tampa Bay Times (June 3, 2018), https://tampabay.com/news/business/DNA-for-Sale-Ancestry-wants-your-spit-your-DNA-and-your-trust-Should-you-give-them-all-3-_168819151/. ↩︎
  29. See Nila Bala, We’re Entering a New Phase in Law Enforcement’s Use of Consumer Genetic Data, Slate (Dec. 19, 2019, 7:30 AM), https://slate.com/technology/2019/12/gedmatch-verogen-genetic-genealogy-law-enforcement.html; Natalie Ram, The Genealogy Site That Helped Catch the Golden State Killer Is Grappling With Privacy, Slate (May 29, 2019, 7:30 AM), https://slate.com/technology/2019/05/gedmatch-dna-privacy-update-law-enforcement-genetic-geneology-searches.html. ↩︎
  30. Bala, supra note 28. ↩︎
  31. See Karen Richmond, AI Could Revolutionise DNA Evidence – But Right Now We Can’t Trust the Machines, The Conversation (Jan. 29, 2020, 6:35 AM), http://theconversation.com/ai-could-revolutionise-dna-evidence-but-right-now-we-cant-trust-the-machines-129927; Chris Baraniuk, The New Weapon in the Fight Against Crime, BBC (Mar. 3, 2019), https://www.bbc.com/future/article/20190228-how-ai-is-helping-to-fight-crime. ↩︎
  32. See Rashida Richardson et al., Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice, 94 N.Y.U. L. Rev. Online 15, 42 (2019), for a discussion of issues with dirty data. ↩︎
  33. Kadija Ferryman, Reframing Data as a Gift (Apr. 17, 2017) (unpublished remarks), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3000631. ↩︎
  34. Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies (2002). ↩︎
  35. Christine L. Borgman, presentation to the National Press Club: Unstable in Concept and Context (Nov. 15, 2019), https://escholarship.org/uc/item/0zf478ch. ↩︎
  36. David W. Ball & Jessie A. Key, Molecules and Chemical Nomenclature, in Introductory Chemistry – 1st Canadian Edition (2014). ↩︎
  37. See Richard A. Berk, An Introduction to Sample Selection Bias in Sociological Data, 48 Am. Socio. Rev. 386 (1983); Jelke Bethlehem, Selection Bias in Web Surveys, 78 Int’l Stat. Rev. 161 (2010); M. Delgado-Rodríguez & J. Llorca, Bias, 58 J. Epidemiol Cmty. Health 635 (2004). ↩︎
  38. Mark Bevir, Governance: A Very Short Introduction 1 (2012). ↩︎
  39. UNDESA, UNDP & UNESCO, UN System Task Team on the Post-2015 UN Development Agenda: Governance and Development (May 2012), https://www.un.org/millenniumgoals/pdf/Think%20Pieces/7_governance.pdf. ↩︎
  40. Peter Bogason & Juliet A. Musso, The Democratic Prospects of Network Governance, 36 Am. Rev. Pub. Admin. 3 (2006). ↩︎
  41. James G March & Johan P Olsen, Democratic Governance (1995). ↩︎
  42. Maria Carmen Lemos & Arun Agrawal, Environmental Governance, 31 Ann. Rev. Env’t. Res. 297, 298 (2006). ↩︎
  43. Sean Martin McDonald, From Space to Supply Chain: Humanitarian Data Governance (Aug. 12, 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3436179. ↩︎
  44. The Royal Society, Connecting Debates on the Governance of Data and Its Uses (July 16, 2016), http://www.webscience.org/wp-content/uploads/sites/117/2016/12/DES4610_Data-Governance-report.pdf. ↩︎
  45. Woodrow Hartzog & Daniel J. Solove, The Scope and Potential of FTC Data Protection, 83 Geo. Wash. L. Rev. 2230 (2015); Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 Colum. L. Rev. 583 (2014). ↩︎
  46. Robert Gorwa, What is Platform Governance?, 22 Info. Commc’n Soc’y 854, 857 (2019). ↩︎
  47. Id. ↩︎
  48. Mark Fenwick et al., The End of ‘Corporate’ Governance: Hello ‘Platform’ Governance, 20 Eur. Bus. Org. L. Rev. 171, 177 (2019). ↩︎
  49. Id. at 171. ↩︎
  50. Keith G. Provan & Patrick Kenis, Modes of Network Governance: Structure, Management, and Effectiveness, 18 J. Pub. Admin. Rsch. Theory 229 (2007). ↩︎
  51. Kate Klonick, Does Facebook’s Oversight Board Finally Solve the Problem of Online Speech?, in Models for Platform Governance 51–53 (2019). ↩︎
  52. Sean Esbjörn-Hargens & Michael E. Zimmerman, An Overview of Integral Ecology 9 (Integral Institute, Resour. Pap. No. 2, 2009); David B. Lindenmayer et al., Value of Long-term Ecological Studies, 37 Austral Ecology 745 (2012). ↩︎
  53. Margaret M. Bubolz & M. Suzanne Sontag, Human Ecology Theory, in Sourcebook of Family Theories and Methods: A Contextual Approach 419–50 (Pauline Boss et al. eds., 1993), https://doi.org/10.1007/978-0-387-85764-0_17. ↩︎
  54. Urie Bronfenbrenner, Toward an Experimental Ecology of Human Development., 32 Am. Psych. 513 (1977). ↩︎
  55. Id. at 514. ↩︎
  56. Id. at 515. ↩︎
  57. D. S. Stokols, Translating Social Ecological Theory Into Guidelines for Community Health Promotion, 10 Am. J. Health Promotion 282 (1996), https://escholarship.org/uc/item/2bv79313. ↩︎
  58. Id. at 283. ↩︎
  59. See Garrett M. Broad et al., Understanding Communication Ecologies to Bridge Communication Research and Community Action, 41 J. Applied Commc’n Rsch. 325, 325–45 (2013); see also Yong-Chan Kim & Sandra J. Ball-Rokeach, Community Storytelling Network, Neighborhood Context, and Civic Engagement: A Multilevel Approach, 32 Hum. Commc’n Rsch. 411, 411–39 (2006); Yong-Chan Kim & Sandra J. Ball-Rokeach, Civic Engagement from a Communication Infrastructure Perspective, 16 Commc’n Theory 173, 173–97 (2006); Holley A. Wilkin et al., Applications of Communication Infrastructure Theory, 25 Health Commc’n 611, 611–12 (2010). ↩︎
  60. See Kim & Ball-Rokeach, supra note 58. ↩︎
  61. See James Boyle, A Politics of Intellectual Property: Environmentalism for the Net?, 47 Duke L.J. 87 (1998); Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Calif. L. Rev. 1331, 1331–74 (2004). ↩︎
  62. See Julie E. Cohen, The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy, 31 Phil. Tech. 213, 213–33 (2018). ↩︎
  63. Michael K. Buckland, Information as Thing, 42 J. Am. Soc’y Info. Sci. 351, 351 (1991). ↩︎
  64. Id. at 353. ↩︎
  65. See Jack M. Balkin, Information Fiduciaries and the First Amendment, 49 U.C. Davis L. Rev. 1183–34 (2016); Ariel Dobkin, Information Fiduciaries in Practice: Data Privacy and User Expectations, 33 Berkeley Tech. L. J. 1, 1–50 (2018); Jonathan Zittrain, Engineering an Election, 127 Harv. L. Rev. F. 335, 335–41 (2014). ↩︎
  66. See Bronfenbrenner, supra note 53, at 515. ↩︎
  67. Urie Bronfenbrenner, The Ecology of Human Development 237 (1979). ↩︎
  68. See Bronfenbrenner, supra note 53, at 515. ↩︎
  69. See Nicole M. Vélez-Agosto et al., Bronfenbrenner’s Bioecological Theory Revision: Moving Culture from the Macro into the Micro, 12 Persps. Psych. Sci. 900, 902 (2017). ↩︎
  70. See id. at 906. ↩︎
  71. See Eubanks, supra note 3; Safiya Umoja Noble, Algorithms of Oppression: How Search Engines Reinforce Racism (2018); see generally O’Neil, supra note 19. ↩︎
  72. See Arjun Appadurai, Disjuncture and Difference in the Global Cultural Economy, 7 Theory Culture & Soc’y 295, 295–310 (1990). ↩︎
  73. See The “All of Us” Research Program, 381 New Eng. J. Med. 668, 668 (2019); see also National Institutes of Health (NIH)—All of Us, Nat’l Inst. of Health (NIH) (2020), https://allofus.nih.gov/future-health-begins-all-us (last visited Feb 20, 2021). ↩︎
  74. The “All of Us” Research Program, supra note 72. ↩︎
  75. Id. ↩︎
  76. See Aila Hoss, Exploring Legal Issues in Tribal Public Health Data and Surveillance, 44 S. Ill. U. L.J. 27, 27 (2019). ↩︎
  77. See Terri Hansen & Jacqueline Keeler, The NIH Is Bypassing Tribal Sovereignty to Harvest Genetic Data from Native Americans, Vice, Dec. 21, 2018, https://www.vice.com/en/article/8xp33a/the-nih-is-bypassing-tribal-sovereignty-to-harvest-genetic-data-from-native-americans; Kalen Goodluck, Indigenous Data Sovereignty Shakes Up Research, High Country News, Oct. 8, 2020, https://www.hcn.org/issues/52.11/indigenous-affairs-covid19-indigenous-data-sovereignty-shakes-up-research. ↩︎
  78. See Hansen & Keeler, supra note 76. ↩︎
  79. See Manola Secaira, Abigail Echo-Hawk on the Art and Science of ‘Decolonizing Data,’ Crosscut, May 31, 2019, https://crosscut.com/2019/05/abigail-echo-hawk-art-and-science-decolonizing-data; see also Hansen & Keeler, supra note 76; Kalen Goodluck, Covid is Strengthening the Push for Indigenous Data Control, Wired, Oct. 10, 2020, https://www.wired.com/story/covid-is-strengthening-the-push-for-indigenous-data-control/. ↩︎
  80. See Secaira, supra note 78. ↩︎
  81. See Goodluck, supra note 76. ↩︎
  82. See Te Mana Raraunga – Māori Data Sovereignty Network Charter (2015), Māori Data Sovereignty Network, https://static1.squarespace.com/static/58e9b10f9de4bb8d1fb5ebbc/t/5913020d15cf7dde1df34482/1494417935052/Te+Mana+Raraunga+Charter+%28Final+%26+Approved%29.pdf (last visited Feb. 20, 2021). ↩︎
  83. United States Indigenous Data Sovereignty Network, About, https://web.archive.org/web/20220423084152/https://usindigenousdata.org/about-us (last visited Feb 20, 2021). ↩︎
  84. See Krystal S. Tsosie, Models of Data Governance and Advancing Indigenous Genomic Data Sovereignty, in Proceedings of the 26th ACM SIGKDD International Conference on Knowledge Discovery & Data Mining 3592 (2020), https://doi.org/10.1145/3394486.3411072 (last visited Feb. 20, 2021). ↩︎
  85. See Rebecca Tsosie, Tribal Data Governance and Informational Privacy: Constructing “Indigenous Data Sovereignty,” 80 Mont. L. Rev. 230, 231 (2019); See also Hoss, supra note 75, at 28. ↩︎
Articles

Law School Rankings And Political Ideology: Measuring The Conservative Penalty And Liberal Bonus With Updated 2023 Rankings Data

JLEPP

[PDF]

Michael Conklin1*

Introduction

In 2020, novel research was conducted to measure whether, and to what extent, conservative law schools are punished and liberal law schools are rewarded in the U.S. News & World Report peer rankings.2  The study found a drastic conservative penalty and liberal bonus that amounted to a difference in the peer rankings of twenty-eight spots.3  This Article updates the research using the latest political affiliation data and the most recent 2023 rankings data.  The updated results produce an astounding thirty-two-place difference in the peer rankings attributable to political ideology.  This increase from the 2020 research elicits discussion regarding the effects of recent societal changes in polarization and civility.  This Article discusses how this disparity in the rankings may perpetuate a lack of ideological diversity in legal academia.  The harm to professors, students, and society at large from such a lack of ideological diversity in law schools is discussed.  Finally, this Article concludes by proposing a simple solution to circumvent this particular manifestation of ideological bias in legal academia.

I. Law School Rankings

The U.S. News & World Report overall rankings (hereinafter “overall rankings”) are based primarily on objective data, such as bar passage rate, employment rate, Law School Admission Test (LSAT) score, undergraduate grade point average (GPA), acceptance rate, and student–faculty ratio.4  They are also the standard for measuring American law school prestige.5  Law schools have responded accordingly by altering their behavior in attempts to improve their rankings.6  The incentive to improve one’s ranking is so strong that some law schools even go so far as to falsely report data7 and coerce underachieving graduates to delay taking the bar exam.8  Undesirable law school ratings frequently result in the firing of deans.9  Even the perceived value of a law journal is affected by that school’s ranking.10

The U.S. News & World Report also provides peer rankings, which are the sole result of surveys completed by law school deans and select faculty regarding their perceptions of law schools.11  The existence of these two rankings—one mostly objective and one entirely subjective—allows for analysis on which schools have disproportionately high or low reputations based on what would be expected from their objective performances alone.

II. Ideological Diversity and Law Schools

Problems with a lack of diversity among faculty and students in law schools have long been analyzed regarding the categories of race and gender.12  In 2015, the first robust analysis of law school ideological diversity was published in the Harvard Journal of Law & Public Policy (hereinafter “2015 study”).13  But even prior to this landmark study, it was already well known that law school professors were disproportionately liberal—both when compared to the overall legal profession and the public at large.14  A study using 2013 data found that 82% of law school professors were Democrats, while only 11% were Republicans.15  And even once inside legal academia, conservative law school professors appear to be relegated to topics such as law and economics as opposed to the more prestigious topics, such as constitutional law and federal courts.16

The 2015 study set out to determine if the great disparity between conservative and liberal law professors was the result of discrimination or if there was a more benign, alternative explanation.  The results of the 2015 study strongly point to the former explanation over the latter.  It found that conservative law professors are more qualified than their liberal peers.  When compared to their liberal counterparts, conservative law professors were 68.2% more likely to be former Supreme Court clerks, 24.1% more likely to have graduated from higher-ranked schools, and 5.4% more likely to have served on law review.17  Conservative law professors also publish more, which is the most important factor in hiring and promotions.18  Over the course of ten years, conservative professors publishes four to eight more articles than liberal professors.19  And the scholarship from conservative law faculty is significantly more likely to be cited to, which is a leading measure of scholarly significance.20  These findings combine to make a strong case that the best explanation for law schools’ ideological inequalities is discrimination and not alternative, benign explanations such as diminished qualifications, abilities, or desire to join academia on the part of conservatives.

As discussed in the original 2020 Article on ideological rankings disparities, a series of internal emails from the Harvard Human Rights Journal that surfaced in 2012 demonstrate how the anti-conservative bias also infects legal scholarship.21  The emails document an incident in which the journal editors expressed “major concerns” about how a submitted manuscript was from a conservative author.22  The editors concluded that this was “enough to reject the article.”23  Such practices likely demonstrate why it is harder for conservatives to obtain faculty positions at law schools, as the ability to publish in top journals is the most significant qualification for aspiring law school professors.24

III. Methodology

The original 2020 research used the overall and peer rankings from 2012 to 2021.25  It measured the disparity between the subjective peer rank and the objective overall rank for the top ten conservative law schools and the top ten liberal law schools.26  The Princeton Review’s ideological rankings were used for this conservative/liberal distinction.27  This resulted in the following law schools used for the 2020 study:

Most Conservative
1. Ave Maria School of Law
2. Brigham Young University J. Reuben Clark Law School
3. Samford University Cumberland School of Law
4. George Mason University School of Law
5. Faulkner University Thomas Goode Jones School of Law
6. University of Alabama School of Law
7. Louisiana State University Paul M. Hebert Law Center
8. Mississippi College School of Law
9. Pepperdine University School of Law
10. University of Idaho College of Law

Most Liberal
1. Northeastern University School of Law
2. American University Washington College of Law
3. University of Pennsylvania Law School
4. University of Oregon School of Law
5. University of Maryland School of Law
6. Brooklyn Law School
7. City University of New York School of Law
8. State University of New York University at Buffalo School of Law
9. University of Colorado School of Law
10. Vermont Law School Law Program

While these are the ten most conservative and ten most liberal law schools, this does not mean that the ten conservative law schools are as far to the right as the ten liberal law schools are to the left.  For example, a 2018 study found that of the top fifty law schools, Brigham Young University, Pepperdine, and Alabama were the most ideologically balanced.28  And yet all three of these law schools were on either the 2020 or 2022 list of the ten most conservative law schools.

To accurately measure the deviation between the overall rank and the peer rank, the 2020 study designed the following formula, which was also used in this 2022 update29:

By incorporating both the difference and the percentage change, this formula mitigates the variances that would result from only using one method or the other.30 

This updated study added the latest two years of rankings (2022 and 2023), which results in a rankings data set from 2012 to 2023.  Also, the updated conservative/liberal law school top ten lists were utilized.  The revised lists used for this 2022 update removed Samford and Pepperdine from the conservative top ten and replaced them with Texas Tech and Regent.31  For the liberal list, Pennsylvania, Maryland, Brooklyn, State University of New York, and Vermont were replaced with Washington University; George Washington University; University of California, Irvine; University of California, Berkeley; and New York University.32

IV. Results

A. Original Study

In the original 2020 study, the average peer rank deviation for the conservative schools was −11.82 spots from the overall ranking.33  The average peer rank deviation for the liberal schools was 9.05 from the overall ranking.34  This resulted in a net difference between conservative and liberal schools of 20.87 spots in the rankings.  The odds of randomly selecting two groups of ten that average these two levels of disparity or worse is less than 0.003%, or roughly one in 33,000.35

As explained in the original 2020 research, the difference between the objective peer rankings and the subjective measures in the overall rankings is even more disparate than the −11.82 and 9.05 numbers show.36  This is the result of how the peer rank is also included in the overall rankings formula and is heavily weighted at 25%.37  This functions to significantly mitigate the difference between the peer rankings and the objective factors of the overall rankings.38  When this is accounted for by backing out the peer score from the overall score, an even greater disparity emerges.  The conservative penalty goes up to −15.76, and the liberal bonus goes up to 12.07, resulting in a net difference of 27.83 spots in the rankings.39

B. Updated Study

Utilizing the same methodology but with updated rankings and ideological lists, an even greater disparity was found than that from two years prior.  The conservative penalty increased to −14.41, and the liberal bonus increased to 9.62.  After applying the same correction from the 2020 study to control for how the peer ranking is included in the overall rank, the final result is a −19.21 conservative penalty and a 12.83 liberal bonus.  This results in a net 32.04 difference in the peer rankings.  The odds of a disparity this great being the result of random chance is about 0.0004%, or roughly one in 250,000.40

V. Discussion

The results of this updated research are consistent with the 2020 study that it expands on.  It is also consistent with the 2015 study on ideological discrimination in law school faculty hiring.  In all three of these studies, the results were extreme in the disparities found, and there is little room for any legitimate non-discriminatory explanation.  This section includes potential non-discriminatory explanations for how the disparate result found in this study came about.  Such potential explanations include law journal quality, effectiveness of promotional materials, faculty quality, willingness to game the system, and how there are more elite law schools in the liberal group.  Unfortunately, none of these explanations are a reasonable candidate to explain any disparity, much less the extreme thirty-two-place difference in the rankings.  This section also provides a discussion regarding why the rankings disparity is increasing, the harms of a lack of ideological diversity, and an analogy to an unrelated employment discrimination hypothetical to demonstrate the severity and obviousness of ideological discrimination in legal academia.

A. Law Journal Quality

There is some evidence to suggest that a law school’s flagship law journal may affect its peer ranking while not directly contributing to the overall ranking.41  Flagship law journal prestige is a convenient proxy for deans who may not have the time or inclination to analyze the nuanced aspects of the 189 law schools they are tasked with ranking.42  Indeed, there does exist a high correlation between a law school’s flagship journal’s rankings in the Washington & Lee Law Journal Rankings and its peer rank.43  The ranking of a law school’s flagship journal is also an effective predictor of the law school’s future overall ranking.44

Analyzing the flagship law journals from the twenty law schools used in this 2022 study finds no evidence to support the claim that any of the peer rankings disparity is attributable to deviations in law journal quality relative to the overall ranking of the law school.  When comparing the overall ranking of conservative and liberal law schools to the quality of their flagship law journals, the results are nearly identical.45  The average ratio of overall ranking to impact factor for the conservative law schools is 199.6, while the liberal law schools average 195.0.  And when comparing the average ratio of overall ranking to the Washington & Lee Law Journal Rankings Combined Score, the conservative law schools average 8.54, while the liberal law schools average 8.63.

B. Promotional Materials

Due to the importance of the overall rankings, and how the peer rankings contribute significantly to the overall rankings, some law schools distribute promotional materials to deans in an effort to improve their peer rankings.46  Therefore, part of the disparity uncovered in this study could be accounted for if the liberal schools engaged in this practice while the conservative schools did not.  It is beyond the scope of this research to investigate the extent to which each of the twenty law schools in this study engage in sending out promotional materials.  But it is highly unlikely that there would be a significant difference in this area since all law schools have the same incentive to engage in the practice.  Furthermore, the effect of these promotional materials is likely minimal and, as some have suggested, possibly even non-existent.47  Therefore, this is unlikely to explain any significant portion of the extreme disparity found in this study.

C. Faculty Quality

Despite U.S. News & World Report’s plans to implement quality of faculty scholarship as a factor in the overall rankings prior to the COVID-19 pandemic, the overall rankings still do not take this factor into account.48  Regardless, increasing the quality of faculty scholarship would likely result in improved peer rankings but would have no impact on the overall rankings beyond the 25% weighting of the peer score in the overall rankings.  Therefore, high-quality faculty scholarship could potentially explain a positive disparity between peer rankings and overall rankings.  However, the data reveal that this potential explanation is counterproductive, as faculty scholarship makes the peer rankings disparities found in this study even less likely, not more likely.  This is because, as mentioned from the 2015 study, conservative law professors are disproportionately better scholars, not worse.49

D. Willingness to Game the System

One could theorize that it is not the peer rankings that are unjustifiably low for the conservative law schools and high for the liberal law schools but rather that the peer rankings are accurate and that it is the overall rankings that are unjustifiably high for the conservative law schools and low for the liberal schools.  This would be highly unlikely given that the overall score is primarily the result of objective measures—and is, therefore, neither artificially high nor low but exactly what the objective measures produce.  However, law schools sometime attempt to game the system to make these objective measures better than would otherwise be the case.  The following are all examples of what law schools have done in an effort to improve their overall rankings: 

  • Pay underperforming graduates to not take the July bar exam, which results in an increased bar passage rate50
  • Temporarily hire unemployable graduates to increase the employment rate of graduating students51
  • Prefer potential students with high undergraduate GPAs from mediocre colleges as opposed to potential students with mediocre GPAs from exceptional undergraduate colleges in order to improve the law school’s selectivity score52
  • Pay the larger university directly for the law school’s electricity expenditures from tuition dollars instead of having it deducted directly from the tuition, thus increasing the reported per-student financial outlays of the law school53
  • Blatantly falsify GPA and LSAT scores from entering students to increase the selectivity score54

If a significant number of law schools engaged in these practices, then law schools who did not would have artificially lower overall rankings by comparison.  Therefore, if the conservative law schools used in this study did not engage in these practices, but most other law schools did, this would provide a non-discriminatory reason why their peer ranks are less than their overall ranks.  

While this objection is logically sound, it would be difficult to prove, as law schools are unlikely to go public with their involvement in such practices. Therefore, this alternative explanation for the peer rankings disparity found in this study is largely unprovable.  Regardless, there is no reason to believe that liberal law schools are more likely to engage in these practices that game the system than conservative law schools.  And even if this unlikely circumstance were true, the first four practices listed above would not come close to explaining the thirty-two-place difference between peer rankings and overall rankings.  The fifth practice mentioned above—that of blatantly falsifying data—could result in extreme disparities, but it would be all but impossible for multiple law schools to get away with falsifying the data to such an extreme extent over the course of a twelve-year period.

E. More Elite Law Schools in the Liberal Group

In considering the law schools that make up the ten most conservative and the ten most liberal lists, it quickly becomes apparent that the liberal list is, on average, higher in both the overall and peer rankings.  For the updated 2022 top-ten lists, there are five liberal law schools in the top twenty-five overall and peer rankings and none from the conservative list in the top twenty-five. But this is in no way a benign explanation for the disparities found in this research.  This is because the ultimate starting point of a law school’s overall rank is irrelevant when measuring how its peer rank deviates from this starting point.  What matters is the upward or downward deviation in the peer rankings from the overall rankings.

As demonstrated, the potential non-discriminatory explanations are ineffective at explaining the existence of a thirty-two-place disparity between conservative and liberal law schools. Furthermore, any other attempt to provide a non-discriminatory explanation faces a daunting uphill battle.  This is because any such explanation would have to overcome the strong evidence against anti-conservative bias in other areas of legal academia, as shown in the 2015 study.55

F. Interpretations of the Increased Disparity Finding

The result of this updated study not only demonstrates that the extreme disparity between conservative and liberal law schools remains in existence but also demonstrates that the disparity has increased in recent years.  While ultimately unquantifiable, it is interesting to consider possible explanations for this trend.  This is likely the result of the simplest explanation, that political polarization is increasing in America.56  This consistent trend may have experienced a steep increase since the 2020 study was conducted, as views on the COVID-19 pandemic were highly politically polarizing.57  A number of other recent events demonstrate increased polarization.  The events on January 6, 2021, at the Capitol was a stark demonstration of increased polarization.  Harvard Law School students responded by acquiring more than 200 signatures calling for a ban on hiring former Trump administration officials.58  And while the Black Lives Matter movement was established in 2013, the movement gained media attention starting in 2020 with controversial protests.59

This updated study understates the magnitude of recent increases in ideological discrimination in peer rankings.  This is because this updated study does not begin where the 2020 study left off.  Instead, it uses the same starting point of the 2020 study, which is the 2012 rankings that came out in 2011.  Therefore, the increase in ideological discrimination attributable to recent increases in political polarization are greatly mitigated by the breadth of the time period used.  The last two years make up only 17% of the data used to calculate the average disparity.  While the findings of this study regarding ideologically discriminatory rankings are conclusive, the cause-and-effect relationship between a general increase in political polarization in society and anti-conservative bias in peer rankings is more speculative.

G. Harm from Lack of Ideological Diversity

The original 2020 study discussed how punishing and rewarding law schools in the rankings for their political ideologies likely perpetuates discrimination against conservative law professors.60  But this problem affects far more than just aspiring conservative law professors.  The negative externalities of such ideological discrimination also infect legal education and the practice of law.61  And this type of systemic harm is naturally perpetuated because “teachers tend to recreate the system they know best—the one that produced them.”62

Lack of ideological diversity in the law school classroom and in legal scholarship functions to provide an inferior legal education.63  Six circuit courts have a majority Republican-appointed judges.64  A majority of district courts have either a majority of Republican-appointed judges or an equal number of Democrat-appointed and Republican-appointed judges.65  Even after President Biden’s first Supreme Court appointment, there will still be a majority of Republican-appointed justices.66  Therefore, law students pay a high price for not being exposed to conservative thought.  And liberal students are likely harmed to an even greater extent than conservative students since conservative students are more likely to seek out conservative legal voices outside of the classroom.67  This is of paramount importance, as understanding the best arguments from the conservative side will better equip liberals to argue for liberal causes.68  Finally, only being exposed to one side of nuanced issues hinders the ability of liberal students to modify their positions in light of a fair assessment of the strongest arguments from both sides.

For this same reason, ideological discrimination is harmful to society at large because people who hire lawyers may rely on the overall rankings of their law schools as a proxy for lawyer quality.69  Therefore, an ideologically discriminatory factor in the overall rankings is counterproductive because most people would likely prefer to hire a lawyer who is familiar with—and therefore better equipped to address—conservative arguments and conservative judges.  In this way, including peer assessment scores in the overall rankings contributes to hiring-market inefficiencies.

H. Employment Discrimination Analogy

To demonstrate the extreme nature of the disparities uncovered in this research, imagine the following hypothetical analogy of employment discrimination:  A business with 189 employees gives raises and promotions based on a combination of an overall score from objective employee performance and a subjective ranking score.  Research finds that for the ten most devout Muslim employees, their subjective ranking is, on average, nineteen spots below where one would expect it to be based on their objective employee performance.  Furthermore, for the ten most Christian employees, their subjective ranking is thirteen spots above where one would expect it to be based on their objective employee performance.  Further imagine that while the employees who make up these two top-ten lists vary from year to year, the drastic disparity against Muslims and for Christians remains the same.  And finally, imagine that emails surface demonstrating that when the Muslim employees attempt to conduct the training that is required for promotions, they are sometimes prevented from doing so based on their religion.

A hypothetical person being made aware of such extreme evidence of discrimination would have no reasonable choice but to acknowledge its existence.  Such a person is, of course, free to hope and wish against the odds for some as-of-yet unknown, benign explanation of the evidence to emerge.  But until such an explanation comes along, the conclusion that pervasive discrimination is involved is the only logical conclusion.  Likewise, the evidence for ideological discrimination in legal academia is more than enough to overwhelm even the most skeptical observer who honestly considers the evidence.  Such a person is free to hope and wish for some as-of-yet unknown, benign explanation to emerge.  But until it does, the conclusion that pervasive discrimination is involved is the only logical conclusion.

VI. Proposed Solution

If there is a silver lining to be found in this research, it is the existence of a simple and effective solution.  Peer review scores should be excluded as a factor in the overall rankings.  Even disregarding their discriminatory effect, peer rankings as a factor in the overall rankings makes little sense.  Most prospective law students likely care far more about small class sizes, minimizing debt, campus amenities, passing the bar, and acquiring a job upon graduation.  Therefore, student-faculty ratio, average student debt, per-pupil spending, bar passage rates, and employment rates should be emphasized in the overall rankings.  While all of these factors are currently present in the overall rankings formula, the peer assessment score is weighted more than any of them.70  Furthermore, there already exists a lawyers and judges assessment score that contributes to the overall score.71  The average law student likely finds this metric far more significant, as lawyers and judges hire many more law school graduates than do law school deans.

When the lack of ideological diversity is understood, it becomes highly peculiar how little law schools devote to the topic when compared to other categories of inequalities, such as racial imbalances.  After all, focusing on the race of faculty and students is a rather circuitous method of achieving increasing diversity of opinion.  Even worse, using race as a proxy for increasing diversity of opinion perpetuates harmful stereotypes.  This is because implicit in the logic that increasing minority professors will increase diversity of ideas is the belief that different races necessarily think differently, which is at the heart of much white supremacist advocacy.72

Even if the issue of ideological discrimination were absent, there is still good reason to remove peer rankings as a factor in the overall rankings.  This is because the peer assessment rankings are affected by the objective factors already measured in the overall rankings.  If a law school significantly improves its former student bar passage rates and entering student credentials, it is more likely to receive improved rankings from voting deans.73  Therefore, the peer assessment score and the other factors, such as the bar passage rate and entering student LSAT scores, are collinear terms.  In statistics, it is prudent to remove at least one of two collinear terms.74  And here, it is clearly the best practice to remove the one that is subjective and perpetrates harmful discrimination.75  One final benefit to using objective factors instead of peer rankings in the overall rankings is that peer rankings are a lagging indicator.76  Changes in objective factors, such as entering LSAT scores, immediately impact the rankings, while peer rankings are far less responsive.77

Conclusion

This Article produces a strong, cumulative case for the existence of ideological discrimination in law school in general and, more specifically, in the peer rankings.  The conclusion of ideological discrimination is further strengthened when the results of this research are considered in tandem with the compelling evidence of ideological discrimination in hiring law professors78—a decision in which law school deans also play a significant role.  Because peer rankings are the leading factor in the overall rankings, this anti-conservative bias also inflicts a conservative penalty there as well, although less severe.

While the magnitude of ideological bias discovered in this study may be surprising, the notion that law school deans—consciously or otherwise—apply a conservative penalty and liberal bonus when ranking law schools is not surprising.  The political ideologies of law school deans are likely comparable with those of law school faculty—which are highly disproportionately liberal.79  Political ideology is a significant factor that affects how people interpret information.80  Just as a conservative may view a liberal law school with heightened skepticism, it appears liberal law school deans view conservative law schools in this same way.  Recent polarizing events such as the January 6 Capitol insurrection, COVID-19, and the Black Lives Matter movement are ideal candidates for why this ideological bias has increased since the 2020 study.

This Article documents the harm to conservative professors, law students, and society at large from ideological bias in law school rankings.  Fortunately, there is a simple solution to the problem.  Removing the peer score from the overall rankings calculation will reduce such harm while providing the benefits of better informing prospective law students, reducing inefficiencies in the hiring market, and contributing to greater ideological diversity in law schools and legal scholarship.

  1. *     Powell Endowed Professor of Business Law, Angelo State University. ↩︎
  2. Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178 (2020), https://www.illinoislawreview.org/wp-content/uploads/2020/08/Conklin.pdf. ↩︎
  3. Id. at 183. ↩︎
  4. Robert Morse et al., Methodology: 2023 Best Law Schools Rankings, U.S. News & World Rep. (Mar. 28, 2022, 9:00 PM), https://www.usnews.com/education/best-graduate-schools/articles/law-schools-methodology. ↩︎
  5. Jeffrey Harmatz, US News & World Report Law School Rankings: A Double-Edged Sword?, L. Crossing (Mar. 19, 2013), https://www.lawcrossing.com/article/900012518/US-News-World-Report-Law-School-Rankings-A-Double-Edged-Sword/ (last visited July 6, 2020) (“Regardless of its flaws, US News & World Report’s Top Law School rankings are the most popular and preferred law school rankings in the nation, and have become a legal industry institution.”). ↩︎
  6. Jeffrey Evans Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead, 81 Ind. L.J. 229 (2006). Because of the role undergraduate GPA plays in the overall rankings, schools favor applicants from mediocre colleges with high GPAs over applicants from elite college with mediocre GPAs. Id. at 232. Likely in an effort to affect peer rankings, law schools spend “substantial sums” of money on promotional materials to send to other legal academics. Id. at 240. Law schools can increase their standing through accounting tricks, such as paying the greater university directly for their electricity expenditures from tuition dollars instead of having it deducted from the tuition. Id. at 241. While this produces no net difference, it increases the financial outlay on resources, which is a factor in the overall rankings. Id. ↩︎
  7. Katherine Mangan, Villanova U. Reveals Its Law School Gave False Reports of GPA’s and Test Scores, Chron. Higher Ed. (Feb. 6, 2011), https://www.chronicle.com/article/Villanova-U-Reveals-Its-Law/126286; Mark Hansen, U of Illinois Law School Admits to Six Years of False LSAT/GPA Data, A.B.A. J. (Nov. 8, 2011, 12:21 AM), https://www.abajournal.com/news/article/illinois_law_admits_to_six_years_of_false_lsat_gpa_data. ↩︎
  8. Benjamin H. Barton, Fixing Law Schools: From Collapse to the Trump Bump and Beyond 151 (2019) (explaining that InfiLaw—the owner of for-profit Arizona Summit Law school, Florida Coastal School of Law, and recently closed Charlotte School of Law—pays underperforming students not to take the July bar exam after graduating). ↩︎
  9. Elie Mystal, Some Students Want Their Deans Fired After Poor Showing in the U.S. News Rankings (and One Head That’s Already Rolled), Above the L. (Mar. 14, 2013, 11:20 AM), https://abovethelaw.com/2013/03/some-students-want-their-deans-fired-after-poor-showing-in-the-u-s-news-rankings-and-one-head-thats-already-rolled/ (“Ever year, deans and assistant deans find themselves ‘pushed out’ of a job thanks to the U.S. News rankings.”). ↩︎
  10. Robert C. Bird, Advice for the New Legal Studies Professor, 29 J. Legal Stud. Educ. 239, 251 (2012) (“The quality of a law review is roughly determined by the prestige of the law school in which the journal is housed.”). ↩︎
  11. Morse et al., supra note 3. ↩︎
  12. James C. Phillips, Why Are There So Few Conservatives and Libertarians in Legal Academia? An Empirical Exploration of Three Hypotheses, 39 Harv. J.L. & Pub. Pol’y 153, 158 (2015). ↩︎
  13. Id. ↩︎
  14. Adam Bonica et al., The Legal Academy’s Ideological Uniformity, 47 J. Legal Stud. 1 (2018) (“We find that 15 percent of law professors, compared with 35 percent of lawyers, are conservative. This may not simply be due to differences in their backgrounds: the legal academy is still 11 percentage points more liberal than the legal profession after controlling for several relevant individual characteristics.”). ↩︎
  15. James Lindgren, Measuring Diversity: Law Faculties in 1997 and 2013, 39 Harv. J. L. & Pub. Pol’y 89 (2016). ↩︎
  16. Phillips, supra note 11, at 162–63. ↩︎
  17. Id. at 183. ↩︎
  18. Id. at 166. ↩︎
  19. Id. at 195. ↩︎
  20. Id. at 166. ↩︎
  21. Conklin, supra note 1, at 180. ↩︎
  22. Paul Caron, The Secret Sauce for Law Review Placement: Letterhead, Citations, and Liberal, TaxProf Blog (Sept. 13, 2012), https://taxprof.typepad.com/taxprof_blog/2012/09/the-secret.html. It is important to note that although the Harvard Human Rights Journal deemed this author “incredibly conservative,” this assessment was based on his record of government service of clerking for a conservative judge and working at the White House under the Bush administration. Id. He also participated in public debate, at least one time writing something critical of a liberal Supreme Court justice. Id. ↩︎
  23. Id. The state of ideological bias in legal academia is likely also on display in how this event was described. The clear implications were downplayed as something that merely “suggest[s] possible bias,” id., and “possible evidence of bias against conservatives,” David Lat, A Look Inside the Law Review Sausage Factory—and Possible Evidence of Bias Against Conservatives, Above the L. (Sep. 13, 2012, 12:20 PM), https://abovethelaw.com/2012/09/a-look-inside-the-law-review-sausage-factory-and-possible-evidence-of-bias-against-conservatives/. Some even suggested that it is a defense to such discriminatory behavior that “Hey, we’ve seen far worse emails coming out of [Harvard Law School]!” Id. ↩︎
  24. LawProfBlawg, Why do Law Professors Write Law Review Articles?, Above the L. (May 9, 2017, 2:00 PM), https://abovethelaw.com/2017/05/why-do-law-professors-write-law-review-articles/. ↩︎
  25. Note that the 2021 rankings are published in 2020 and based on 2019 data. Christopher J. Ryan, Jr., Of Law School Rankings, Disparity, and Football, 110 Geo. L. J. Online 19 (2021). ↩︎
  26. Conklin, supra note 1, at 181. ↩︎
  27. Most Conservative Students, Princeton Rev., https://www.princetonreview.com/law-school-rankings?rankings=most-conservative-students (last visited April 4, 2022); Most Liberal Students, Princeton Rev., https://www.princetonreview.com/law-school-rankings?rankings=most-liberal-students (last visited April 5, 2022). ↩︎
  28. Bonica et al., supra note 13, at 14. ↩︎
  29. Conklin, supra note 1, at 182. ↩︎
  30. Id. at 181 n.21. ↩︎
  31. Most Conservative Students, supra note 26. ↩︎
  32. Most Liberal Students, supra note 26. ↩︎
  33. Conklin, supra note 1, at 183. ↩︎
  34. Id. ↩︎
  35. Id. Note that the 2020 research only calculated the probability of achieving a score of −11.82 or less for one group of ten randomly selected law schools. It did not also factor in the odds of concurrently randomly selecting a second group of ten averaging 9.04 or more. Based on the same computer simulation with 100,000 occurrences, this produces the two probabilities of 0.0008 and 0.03119, respectively. Applying the multiplication rule probability, the odds of both of these occurring in the same sample is 0.00002495, or 0.002495%. ↩︎
  36. Id. ↩︎
  37. Morse et al., supra note 3. ↩︎
  38. U.S. News & World Report does not provide the specific scores for each factor that makes up the overall ranking of a given law school. However, since the weight of the peer assessment score in the overall rankings is known (25%), the effect of removing it from consideration can be calculated by simply multiplying the difference between the overall rankings and the peer rankings by a factor of 1.33. ↩︎
  39. Conklin, supra note 1, at 183. ↩︎
  40. This is based on the same computer simulation from the 2020 study. It calculated 100,000 randomly selected groups of ten. Only fourteen were equal to or less than −14.41, and 289 were equal to or greater than 100,000. Applying the multiplication rule probability this results in 0.00014 × 0.0289, which equals 0.000004, or 0.0004%. ↩︎
  41. Alfred L. Brophy, The Relationship Between Law Review Citations and Law School Rankings, 39 Conn. L. Rev. 43, 55 (2006) (“The findings suggest that law reviews are schools’ ambassadors to the rest of the legal academy. Much of what people at other schools know about a school’s academic orientation may come from the articles and notes published in the school’s law journals.”). ↩︎
  42. Id. ↩︎
  43. Id. at 48. ↩︎
  44. Alfred L. Brophy, The Emerging Importance of Law Review Rankings for Law School Rankings, 2003-2007, 78 Univ. Colo. L. Rev. 35, 35 (2007) (“Thus, . . . if one wants to know where a law school is heading, . . . one should spend some time studying the scholarship its primary law review publishes.”). ↩︎
  45. To properly perform such an analysis, one must first formulate the ratio so that the two variables are positively related, instead of inversely related. This is accomplished by simply subtracting the law school’s overall ranking by 190 (total number of law schools plus one) and then multiplying by −1. This converts the ranking so that the higher the number, the better the law school. This is necessary to compare to the flagship journal’s impact factor and combined score, for which a higher number indicates a higher quality journal. ↩︎
  46. Stake, supra note 5, at 240. ↩︎
  47. Andrew P. Morriss, Legal Education Through the Blurry Lens of US News Law School Rankings, 20 Green Bag 2d. 253, 257 (2017). ↩︎
  48. US News & World Reports Scholarly Impact Project, Hein Online, https://help.heinonline.org/kb/us-news-world-reports-scholarly-impact-project/ (last visited April 3, 2022). ↩︎
  49. Phillips, supra note 11, at 195–201. (Conservatives publish at significantly higher rates and their research is cited to at significantly higher rates.).  ↩︎
  50. Barton, supra note 7, at 151. ↩︎
  51. David Lat, In Defense of Law Schools Hiring Their Own Graduates, Above the Law (Mar. 28, 2013, 6:06 PM), https://abovethelaw.com/2013/03/in-defense-of-law-schools-hiring-their-own-graduates/. ↩︎
  52. Stake, supra note 5, at 232. ↩︎
  53. Id. at 241. ↩︎
  54. Mangan, supra note 6. ↩︎
  55. See Phillips, supra note 11. ↩︎
  56. Levi Boxell, Matthew Gentzkow & Jesse M. Shapiro, Cross-Country Trends in Affective Polarization (Nat’l Bureau of Econ. Rsch., Paper No. 26669, 2021), https://www.nber.org/system/files/working_papers/w26669/w26669.pdf. ↩︎
  57. See, e.g., Thomas B. Edsall, America Has Split, and It’s Now in ‘Very Dangerous Territory’, N.Y. Times (Jan. 26, 2022), https://www.nytimes.com/2022/01/26/opinion/covid-biden-trump-polarization.html. ↩︎
  58. Emmy M. Cho, Harvard Law Students Call on School to Refuse to Hire Former Trump Officials, Harv. Crimson (Feb. 17, 2021), https://www.thecrimson.com/article/2021/2/17/his-petition-trump-officials/. ↩︎
  59. Black Lives Matter: A Timeline of the Movement, Cosmopolitan (Apr. 21, 2021, 9:56 AM), https://www.cosmopolitan.com/uk/reports/a32728194/black-lives-matter-timeline-movement/. ↩︎
  60. With the importance of law school rankings, law school deans are heavily incentivized to hire and promote faculty who will help, not hinder, their advancement in the rankings. Under the current rankings system and the severe conservative penalty, this would include discriminating against conservative faculty. ↩︎
  61. See Phillips, supra note 11, at 158. ↩︎
  62. See Jan M. Levine, Voices in the Wilderness: Tenured and Tenure-Track Directors and Teachers in Legal Research and Writing Programs, 45 J. Legal Educ. 530, 541 (1995). ↩︎
  63. See Adam S. Chilton & Eric A. Posner, An Empirical Study of Political Bias in Legal Scholarship, 44 J. Legal Stud., 277 (2015). ↩︎
  64. There are Republican-appointed majorities in the Third, Fifth, Sixth, Seventh, and Eighth Circuit Courts of Appeals. See Current Federal Judges by Appointing President and Circuit, Ballotpedia, https://ballotpedia.org/Current_federal_judges_by_appointing_president_and circuit (last visited Apr. 10, 2022). ↩︎
  65. There are thirty-five Republican-appointed majorities, sixteen tied Republican-Democrat-appointed judges, and forty Democrat-appointed majorities on district courts. See id. ↩︎
  66. Currently, Alito, Roberts, Thomas, Gorsuch, Kavanaugh, and Barrett are Republican-appointed, and Sotomayor, Kagan, and Breyer are Democrat-appointed. When Breyer leaves the bench at the end of the 2021–2022 term and is replaced by Ketanji Brown Jackson, the number of Republican-appointed and Democratic-appointed Justices will remain the same. ↩︎
  67. See Jeremy A. Frimer, Linda J. Skitkab & Matt Motylb, Liberals and Conservatives Are Similarly Motivated to Avoid Exposure to One Another’s Opinions, 72 J. Experimental Soc. Psych. 1 (2017). ↩︎
  68. See Roger Clegg, Toward Intellectual Diversity in Law School, Minding the Campus (Nov. 7, 2014), https://www.mindingthecampus.org/2014/11/07/toward-intellectual-diversity-in-law-school/. ↩︎
  69. See Richard E. Redding, “Where Did You Go to Law School?” Gatekeeping for the Professoriate and Its Implications for Legal Education, 53 J. Legal Educ. 594, 596 (2003). ↩︎
  70. For example, the bar passage rate is weighted only 3%, while the peer assessment score is weighted 25%. See Morse et al., supra note 3. ↩︎
  71. See id. ↩︎
  72. See Michael E. Ruane, A Brief History of the Enduring Phony Theories That Perpetuates White Supremacy, Wash. Post (Apr. 30, 2019, 11:38 AM), https://www.washingtonpost.com/local/a-brief-history-of-the-enduring-phony-science-that-perpetuates-white-supremacy/2019/04/29/20e6aef0-5aeb-11e9-a00e-050dc7b82693_story.html. ↩︎
  73. Although, these factors do affect the peer rankings on a delayed timeframe. See Christopher J. Ryan, Jr. & Brian L. Frye, A Revealed-Preferences Ranking of Law Schools, 69 Ala. L. Rev. 495, 500 (2017). ↩︎
  74. Ryan, supra note 24, at 25–26. ↩︎
  75. See id. ↩︎
  76. See Ryan & Frye, supra note 72, at 506. ↩︎
  77. See id. at 503. ↩︎
  78. See Phillips, supra note 11. ↩︎
  79. See generally Bonica, supra note 13. ↩︎
  80. See, e.g., Jennifer Jerit & Jason Barabas, Partisan Perceptual Bias and the Information Environment, 74 J. Pol. 672, 672 (2012) (“[P]eople perceive the world in a manner consistent with their political views. The result is a selective pattern of learning in which partisans have higher levels of knowledge for facts that confirm their world view and lower levels of knowledge for facts that challenge them.”). ↩︎
Issue Archives, Symposium Issues

Volume 37, Issue 2

JLEPP

Articles

Parents v. Government: The Constitutional Challenge Between The Principle Of Progressive Autonomy Of Children And Parents’ Educational Rights In Chile
Jorge Barrera-Rojas

Defending The Fundamental Rights of Parents: A Response To Recent Attacks
Melissa Moschella

Notes

A Right Defined By A Duty: The Original Understanding Of Parental Rights
Luray Buckner

The Failure To Protect Free Speech In Higher Education: A Nonpartisan Right With Bipartisan Consequences
Alyce Hammer