Author: Gerard Magliocca


Harlan Fiske Stone

One person who probably deserves a new biography is Chief Justice Harlan Fiske Stone. I just finished reading Alpheus Mason’s book on the Justice, which was written in 1956.  It’s a thorough and engaging account, but there are a couple of problems with the book.  First, it is a rather fawning account–the subtitle might as well have been “He Was Fabulous.” Second, the story is quite dated, as you might expect from a book written sixty years ago. Race is largely absent from the narrative, as is as any discussion of Stone’s decision to join Holmes’ opinion in Buck v. Bell. Stone also made the unfortunate decision (when he was Attorney General) to name J. Edgar Hoover as the FBI Director, which the book talks about relatively briefly.

Stone is a near-great Justice.  He isn’t in the first rank because his opinions aren’t that quotable. But his contributions after the “switch-in-time,” especially Carolone Products and Darby, remain vital texts for understanding judicial review.  Someone should tell his story again.


Tax Returns and Ballot Access

I want to weigh in on the debate over whether states can constitutionally insist that presidential candidates must make some of their tax returns public in order to get on the ballot.  My tentative conclusion is that this would be unlawful under the Equal Protection Clause.

Let’s start with some basic principles. U.S. Term Limits v. Thornton that a state cannot impose upon congressional candidates substantive requirements for ballot access beyond the three that are in Article One of the Constitution. While Article Two’s text on the qualifications for the Presidency parallels the Article One requirements at issue in Thornton, state legislatures have more discretion over presidential elections because they can appoint electors in any manner that does not otherwise violate the Constitution (for example, a state legislature can just directly choose electors without holding any popular election). As a result, when it comes to presidential candidates and tax returns, the issue reduces (in my mind) to whether there is rational basis that connections the mandatory release of a tax return with ballot access.

I think the answer is no.  Here are my reasons.  First, it’s clear that these proposed statutes are directed at one man–Donald Trump. They will apply to all presidential candidates, but we all know that they might as well be called the “Make it Harder For Donald Trump to be Reelected” Act. This raises a red flag. Second, I have a hard time understanding the link between compulsory tax return release and ballot access. States have many procedural ballot access requirements (get signatures from voters, get them from certain places, pay a fee, etc.), that are, if modest, plausibly related to ether defraying the costs of election administration or establishing whether someone is a viable candidate. Requiring the release of tax returns has nothing to do with these things. What, then, is the rational basis for such a law, especially given that tax return disclosure does implicate privacy rights.  (I can’t, for example, get the President’s old tax returns through a FOIA request.)

Will this ever be litigated? I don’t know. Arguably the only states that might enact such a law are the ones that the President has no chance of winning next time. So he might just choose not to release his returns anyway. Or by 2020 his returns might be quite simple (“I earned my salary as President plus some money from passive investments.”) and thus releasing them will be no big deal.


Ratification of Constitutional Amendments

As I think about what my next big project might be, one thought is that lawyers know little about what was said in the state legislatures about the amendments to the Constitution. We know a lot about the state ratification debates on the Constitution itself (at least for the states that kept some information) but after that the quality of the historical record drops off dramatically.  I’m not sure if that is because state legislatures did not keep notes of their debates (say, during the eighteenth and nineteenth centuries), if the debates were lackluster, or if nobody has bothered to do the research. Surely, for the more recent amendments there are complete state legislative accounts, and I’m sure that people would like to know, for example, what was said there about the Twenty-Fourth or the Twenty-Fifth Amendments.  But there is no single place to find a summary of those discussions. David Kyvig’s terrific book on constitutional change is the closest example, but that is still far from what I’m thinking about.


Obsolescence Watch–Clinton v. Jones

Consider this passage in light of the litigation pending against the President and what will surely be filed over the next couple of years:

“[I]n the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.”


Pauli Murray

I just wanted to note this new biography of Pauli Murray, one of the leaders in the fight for gender and racial equality.  The book was discussed in this week’s New Yorker and tells a remarkable story. Here is the Abstract:

Throughout her prodigious life, activist and lawyer Pauli Murray systematically fought against all arbitrary distinctions in society, channeling her outrage at the discrimination she faced to make America a more democratic country. In this definitive biography, Rosalind Rosenberg offers a poignant portrait of a figure who played pivotal roles in both the modern civil rights and women’s movements.
A mixed-race orphan, Murray grew up in segregated North Carolina before escaping to New York, where she attended Hunter College and became a labor activist in the 1930s. When she applied to graduate school at the University of North Carolina, where her white great-great-grandfather had been a trustee, she was rejected because of her race. She went on to graduate first in her class at Howard Law School, only to be rejected for graduate study again at Harvard University this time on account of her sex. Undaunted, Murray forged a singular career in the law. In the 1950s, her legal scholarship helped Thurgood Marshall challenge segregation head-on in the landmark Brown v. Board of Education case.

When appointed by Eleanor Roosevelt to the President’s Commission on the Status of Women in 1962, she advanced the idea of Jane Crow, arguing that the same reasons used to condemn race discrimination could be used to battle gender discrimination. In 1965, she became the first African American to earn a JSD from Yale Law School and the following year persuaded Betty Friedan to found an NAACP for women, which became NOW. In the early 1970s, Murray provided Ruth Bader Ginsburg with the argument Ginsburg used to persuade the Supreme Court that the Fourteenth Amendment to the Constitution protects not only blacks but also women – and potentially other minority groups – from discrimination. By that time, Murray was a tenured history professor at Brandeis, a position she left to become the first black woman ordained a priest by the Episcopal Church in 1976.

Murray accomplished all this while struggling with issues of identity. She believed from childhood she was male and tried unsuccessfully to persuade doctors to give her testosterone. While she would today be identified as transgender, during her lifetime no social movement existed to support this identity. She ultimately used her private feelings of being “in-between” to publicly contend that identities are not fixed, an idea that has powered campaigns for equal rights in the United States for the past half-century.


Bushrod Washington

In thinking about future projects, I also wonder sometimes about writing a biography of Justice Bushrod Washington, George Washington’s nephew.  No book has been written about him since the 19th century, but there’s a lot of potential there. First, he was G. Washington’s confidant as a young man and inherited his papers and Mount Vernon after Martha Washington’s death. Second, he was on the Supreme Court for thirty-one years and was the right hand of John Marshall for much of that time (he and Marshall were friends from their days studying law as apprentices). Third, he was the first leader of the American Colonization Society, which sought free slaves and repatriate them to Africa, even though he owned slaves throughout his life. Fourth, he wrote Corfield v. Coryell, which was often cited by proponents of the Fourteenth Amendment as the most significant articulation of fundamental rights by a court in the ante-bellum era.  There’s more–he was also a delegate at the Virginia ratifying convention for the Constitution–but you get the idea.

Of course, whenever there is no book about someone that could be because (1) he was dull; (2) his papers are disorderly, or (3) there are too many to count.  Whether any or all of these are true in his case, we’ll see.


Augustus Hand on Religion

I’ve been reading through some of Judge Augustus Hand’s opinions, and some of them are real humdingers (to pick the most old-fashioned word I could think of). One is United States v. Kauten, a 1942 case in which the Second Circuit held that conscientious objector status under federal law could not be granted unless the refusal to serve in the military was based on a religious objection (as opposed to a moral or philosophical objection).  Hand, who was deeply religious unlike his cousin Learned, offered up this commentary on religion in his opinion:

Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow-men in the most primitive and in the most highly civilized societies. It accepts the aid of logic but refuses to be limited by it. It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets. A religious obligation forbade Socrates, even in order to escape condemnation, to entreat his judges to acquit him, because he believed that it was their sworn duty to decide questions without favor to anyone and only according to law. Such an obligation impelled Martin Luther to nail his theses on the door of the church at Wittenberg and, when he was summoned before Emperor Charles and the Diet at Worms, steadfastly to hold his ground and to utter the often quoted words: ‘I neither can nor will recant anything, since it is neither right nor safe to act against conscience. Here I stand. I cannot do other. God help me. Amen.‘ Recognition of this obligation moved the Greek poet Menander to write almost twenty-four hundred years ago: ‘Conscience is a God to all mortals‘; impelled Socrates to obey the voice of his ‘Daimon‘ and led Wordsworth to characterize ‘Duty‘ as the ‘Stern Daughter of the Voice of God.‘


Title VII and Sexual Orientation

I want to digest the opinions from the Seventh Circuit en banc before I comment in detail on the Hively case, but here’s one thought that comes to mind based on what I wrote when the Supreme Court was considering Obergefell.  If that Court had adopted (or some of the Justices had supported) the view that prohibitions on same-sex marriage were a form of sex discrimination that violated the Equal Protection Clause, then the Seventh Circuit’s holding yesterday would make perfect sense. Absent that, the case is much more difficult.