Roe’s 50th Anniversary: Podcast with Linda Greenhouse & Reva Siegel

This week is the 50th anniversary of Roe v. Wade.

Julie Suk and I offer a special episode of the Constitutional Crisis Hotline podcast:
Linda Greenhouse & Reva Siegel (Yale Law) discuss the road to Roe, its backlash, its legacy, & the myth of incrementalism.

Surprising fact: In 1972, just months before Roe, polling showed that a majority of Catholics supported a legal right to abortion.

For the story of a stunning political shift and a way forward, listen here:

https://podcasts.apple.com/us/podcast/constitutional-crisis-hotline/id1650259840?i=1000595909195

“A Great Compliment Paid the Jews”: A Surprising Honor for the U.S. Constitution and the Ancient Temple (Chanukkah connection)

Did you know: In July 1788, New York delayed its parade for adopting the US Constitution because of… wait for it… 17 Tammuz?
A Jewish fast day in memory of the Temple’s destruction 6th C. BCE and 70 CE.

I’m reading Pauline Maier’s majesterial “Ratification,” and stumbled on this sentence: NY delayed its huge parade through New York City “to avoid July 22, a Jewish holiday.”

I thought it could be an early Tisha B’Av, so when I googled, I found this article, in which Michael Schwartz followed Maier’s citations to find these 1788 passages:
One merchant wrote: “It is said that the procession is postponed till the 23rd Inst. in order to give the Jews an opportunity to Join in the Festivals, the 22nd being one of their holidays.”

A “Staten Island grandee” wrote to his brother: “I Observe the Grand procession is put of[f] to the 23d I think it is a great Compliment paid the Jews.”

Wow. Chanukkah celebrates the re-dedication of the Temple after the war with the Seleucids – and a civil war in the 2d C BCE.

Happy Chanukah!

Prosecuting Trump Runs Into Some Serious 1st Amendment Troubles

But they are surmountable if the government takes into account his other actions on January 6, 2021.

Alan Rozenshtein and I published a new essay in the Atlantic here.

Here’s our lede: “We believe that the government can prosecute Trump for his speech, but it must proceed very carefully to avoid risking the criminalization of legitimate political expression. The way to do this is for the evidentiary bar to be set appropriately high: Specifically, in cases where a speaker plausibly but ambiguously advocates lawlessness, the government should be required to show that the defendant took additional “overt acts,” beyond making the speech itself, that furthered violence. (We explain this balanced approach for prosecuting political speech—whether for incitement, obstruction, fraud, or insurrection—in greater detail in a forthcoming law-journal article.)”

Our main argument: “When it comes to legal liability for political speech, ties go to the runner—meaning the First Amendment should prevail in close calls, especially in criminal trials. The Brandenburg test is an example of what are called “prophylactic” rules in constitutional law: rules that add a high standard in order to reduce the risk of violating constitutional rights. In particular, there is a serious risk of hindsight bias in any attempt to decide whether a certain speech caused, or would have caused, violence or lawlessness. And when legal rules set a bar too low and with too much subjectivity, they risk opening a door to future prosecutions tainted by partisan bias.

But this is not a tie, because a prosecution need not, and should not, rest solely on Trump’s speech. The January 6 Committee already did much of the work last summer, producing testimony from Cassidy Hutchinson and others showing that Trump took additional concrete acts that he knew would increase the risk of violence.”

See our forthcoming article here:

“January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution,”
37 Constitutional Commentary (forthcoming 2023)

Today is Native American Heritage Day. Respect and Protect Native Families.

The day after Thanksgiving is “Native American Heritage Day,” since 2008 by law (as poetic injustice? irony? Where was law from 1606 to 2008?)

I think it might be presumptuous and maybe tone-deaf to wish anyone a “Happy Native American Heritage Day” today, but I’ll invite members of the Native community to share their thoughts.

To be honest, when I think “Black Friday,” I think of what happened after the myth of Plymouth, the 1621 feast followed by famine and removal of indigenous peoples. And as we drive around today for all our packages, let’s reflect how today’s crazed commercialist “Black Friday” is a very American re-packaging of the capitalist/commercialist legacy after what Thanksgiving Thursday also re-packaged.

And do we even pause on the irony of calling today “Black Friday” when the same legacy after the Plymouth myth of 1621 was so soon after 1619, the arrival of two dozen Africans in Viriginia on the English ship “White Lion”? (How is that for on-the-nose color coding?)

We should be thankful every last Thursday of November.

The day after, I acknowledge as an American, whose ancestors were lucky enough to make it out of Eastern Europe alive, and whose wife’s family fled Nazi Germany to eventually settle in Canada, that we have the luck and privilege to live on stolen land that we inherited by theft, murder, and colonialism.

And that great privilege comes with great responsibility.

That privilege and responsibility is before the Supreme Court this term in Haaland v. Brackeen and the integrity of the Native American family.

This Thanksgiving, I am thankful for the courageous Nikole Hannah-Jones and her team, and I am thankful for the many Native American scholars who are writing and speaking truth, such as Maggie Blackhawk (NYU Law), who is writing the influential Foreword to this year’s Harvard Law Review, and Elizabeth Hidalgo Reese (Yunpovi) (Stanford Law), who published “The Other American Law” in the Stanford Law Review last year and recently gave this powerful interview on a Slate podcast about the Supreme Court case and the Indian Child Welfare Act.

Make Reparations. Respect Sovereignty. Respect the Native American family.

Dread Pirate John Roberts and the Independent State Leg Case

Remember “Princess Bride”? Dread Pirate Roberts had a scary reputation and manipulated it to secretly get what he wanted, avoiding open violence but using stealth, misdirection, and trickery. Inconceivable? No, it’s the Roberts Court.

The independent state legislature case Moore v. Harper (to be argued Dec. 7) is the perfect Overton window Roberts Court cynical pseudo-credibility case.

The right-wing argument has a patina of textual plausibility, so the left publicly freaks out.

I predict the Roberts Court rejects it 6-3…

and then it gets undeserved credit for its neutral non-partisanship. And its use of historical arguments plus common sense legitimates its otherwise ideological misuse of originalism.

(I think it may be 7-2. Gorsuch is the unknown. But he signaled his prior ideological bias for this argument in the Wisconsin Covid-access election 2020 case DNC v RNC. But the historical arguments against this nonsense are clear and are well represented in the amicus briefs and the media by conservative law professors and conservative judges.)

The stakes: Under an extreme theory at the core of the Trump fake elector Jan 6 plot, a state legislature could override the voters and certify its own slate for Trump. Some key state legislatures for the 2024 electoral college are still in Republican control (some due to gerrymandering): WI, AZ, NC, GA. Democrats have flipped Pennsylvania and Michigan. So the theory is dangerous, but I don’t think the Roberts Court allows it, at least not on this extreme application.

Podcast Ep. 4: Diversity in Crisis? The Affirmative Action Oral Arguments

Constitutional Crisis Hotline, episode 4, here.

Subscribe on Apple Podcasts here.

Just hours after the oral arguments on Halloween (Mon, Oct. 31st) in Students for Fair Admissions v. the University of North Carolina and Students for Fair Admissions v. Harvard, we asked five experts for their immediate reactions, analysis and predictions: Eleanor Brown (Penn St/Fordham Law, co-signer of Black Women Law Professors’ amicus brief), Jonathan Feingold (Boston U. Law) and Vinay Harpalani (U. New Mexico Law) (co-authors of a critical legal studies brief questioning Legacy+ policies as a racial privilege), Tom Lee (Fordham Law, co-director of Fordham’s Center for Asian Americans and the Law), and Kimberly West-Faulcon (Loyola Law) (expert on constitutional law and civil rights, former attorney at the NAACP).

Two of our students join to ask questions: Tristan Betz and Josephine Amon.

Jonathan Feingold (BU Law) and Vinay Harpalani (UNM Law) filed this amicus brief on the role of Legacy-Plus as a non-race-neutral policy, and thus race-conscious admission programs are a balance.

Amicus from Black Women Professors (the brief Eleanor Brown signed), here.

Podcast Ep. 3: Chile: A Constitutional Cautionary Tale?

Episode 3 of our podcast “Constitutional Crisis Hotline” is hot off the presses:

“A Constitutional Cautionary Tale?” What can we learn from Chilean voters’ rejection of a new progressive constitution last month?

With Camila Vergara: Critical legal theorist. Marie Skłodowska-Curie Fellow at University of Cambridge writing a book on a plebeian theory of rights “from below” —developed from the point of view of resistance to and emancipation from oligarchic domination— that traces de rights of the common people, from the ancient world to the 21st century.

Sergio Verdugo: Secretary-General of the International Society of Public Law (ICON-S), Editor of the International Journal of Constitutional Law (I.CON), Assistant Professor (tenure track) at the IE University Law School (Madrid, Spain).

Sam Issacharoff: Bonnie and Richard Reiss Professor of Constitutional Law, NYU Law, co-author of the Law of Democracy casebook (with Stanford Law School’s Pam Karlan and NYU School of Law’s Richard Pildes), and Fragile Democracies: Contested Power in the Era of Constitutional Courts (2015).

Follow us at @CnCrisisHotline

Podcast episode on Apple here.

Constitutional Crisis Hotline, Podcast Episode 2: Dahlia Lithwick on her new book “Lady Justice”


“Women Lawyers to the Rescue.” In this episode of Constitutional Crisis Hotline, our guest Dahlia Lithwick talks with our students about women lawyers’ heroic efforts to save American democracy and the challenges that lie ahead.

Thank you, Dahlia, for having this heartfelt conversation with us and our law students!

Apple podcasts here.

Simplecast link here.

Spotify link here.

Audible here.

Google podcasts here.