Covert Juries and Overt Acts: An Update on the Trump Criminal Investigations

Fordham Law professors Tracy Higgins, Abner Greene, and Ethan Leib join Julie Suk on the Constitutional Crisis Hotline to analyze the major cases of the Supreme Court Term that just ended, and then debate about the public criticisms of the Court’s legitimacy.

In the last few weeks, the Supreme Court struck down race-based affirmative action programs, calling into question whether institutions can promote diversity in race conscious ways.  It protected the free expression of a Christian website designer who opposes same-sex marriage against a Colorado law that would require her to offer her services to same-sex couples. The Court also struck down President Biden's effort to forgive student loan debt during the pandemic.  Is the Court redefining the policy landscape on a broad range of socially divisive issues?  Do these decisions--taken together with its decisions last Term on abortion and guns--call the Court's legitimacy into question?  What are we talking about when we question the Court's legitimacy anyway?  And what cases should we look out for this coming Fall?

Recent decisions discussed:

Students for Fair Admissions v. Harvard University

Allen v. Milligan

303 Creative v. Elenis

Sackett v. EPA

Biden v. Nebraska

Upcoming cases to watch:

U.S. v. Rahimi

Netchoice v. Paxton (if the Court decides to grant cert.)

Alexander v. South Carolina

Loper Bright Enterprises v. Raimondo

Corey Brettschneider is a visiting professor at Fordham Law School, where he has taught constitutional law courses for several years.  He is also a Professor of Political Science at Brown University.  He is the author of several books on constitutional law and political theory, and editor of the Penguin Liberty series--a collection of historical, political and legal classics that speak to modern issues of liberty and constitutional rights.  Brettschneider is also a frequent commentator in the media since the Trump presidency on the presidency and the Constitution, including the law and politics of prosecuting and suing a president.

Read the book The Oath and the Office: A Guide to the Constitution for Future Presidents.

Read his 2018 Washington Post piece in on the law of indicting presidents.

Read his 2019 New York Times piece on the law of presidential immunity.

Constitutional Crisis Hotline co-host Julie Suk argues in a new book that misogyny is the overempowerment of men and the collective overentitlement of society to women’s forbearance, pain, and sacrifices for the common good. Misogyny not woman-hatred alone; it is the legal structure that enables that hatred and extracts benefits to society at women’s expense. In this conversation, occurring in the moment that Donald Trump was finally indicted for concealing his hush-money payments to a porn actress, and a federal judge in Texas invalidated abortion pills, Deb Tuerkheimer and Julie Suk explore how this reframing of misogyny sheds light on abortion bans, and how women in U.S. history and around the world today have sought constitutional changes to reset male entitlement and power.

Deborah Tuerkheimer Class of 1967 James B. Haddad Professor of Law at the Northwestern University Pritzker School of Law. Professor Tuerkeheimer is a former prosecutor and leading expert on the law of sexual assault. She is the author of the landmark book Credible: Why We Doubt Accusers and Protect Abusers (2021) and co-author of the textbook Feminist Jurisprudence: Cases and Materials. 

Read Julie C. Suk’s book, After Misogyny: How the Law Fails Women and What to Do about It (2023).

What is the future of constitutional rights protections and equal citizenship in our constitutional democracy? Is substantive due process over after Dobbs, or can we reconstruct it?  

We talk with Jim Fleming (Boston University School of Law, JD/PhD) about his recent book, “Constructing Basic Liberties: A Defense of Substantive Due Process” (2022), in conversation with Ken Kersch (Boston College, Political Science, JD/PhD), an expert on conservative political and legal thought, and working on a new book "The Right Rights: The Conservative Encounter with Civil Rights and Civil Liberties, 1954-1980."

Is the Equal Rights Amendment (ERA) dead or alive? The Senate Judiciary Committee held a hearing at the end of February to consider a resolution that would recognize some state ratifications of the ERA that were completed decades after Congress’s deadline. Originally proposed in 1923 and adopted by Congress in 1972, the ERA would add a sex equality guarantee to the U.S. Constitution. Does Congress have constitutional power to remove the ratification deadline? What should it do about the states that tried to rescind their ratifications? And what difference does the Supreme Court’s decision in Dobbs make to the future of women’s constitutional rights?

Kathleen Sullivan testified at the Senate Judiciary Committee hearing on the ERA on February 28, 2023, in addition to the House Judiciary Subcommittee hearing on the same subject in 2019.  Sullivan is the former dean and professor of law at Stanford Law School, and currently senior counsel at Quinn Emanuel. She is the co-author of a leading constitutional law textbook and dozens of law review articles including, most relevant to this episode, “Constitutional Constancy: Why Congress Should Cure Itself of Amendment Fever” (1996) and “Constitutionalizing Women’s Equality” (2022).

Jesse Wegman authored an op-ed in the New York Times,, “Why Can’t We Make Women’s Equality the Law of the Land?” (2022). Wegman is a member of the New York Times editorial board, and teaches courses at NYU School of Law. He has written on a range of legal and political issues for the New York Times.  He is the author of a 2020 book, Let the People Pick the President: The Case for Abolishing the Electoral College.

Read Constitutional Crisis Hotline co-host Julie C. Suk’s 2020 book about the ERA, We the Women: The Unstoppable Mothers of the Equal Rights Amendment .

Read Kathleen Sullivan’s written testimony for the Senate Judiciary Committee Hearing on the ERA

Read Jesse Wegman’s Why Can’t We Make Women’s Equality the Law of the Land? N.Y. Times, 1/28/2022.

Watch the Senate Judiciary Committee Hearing on the ERA, Feb. 28, 2023.

S.J. Res. 4- A joint resolution removing the deadline for the ratification of the Equal Rights Amendment.

A breaking-news emergencies podcast right after the oral arguments in the Biden Student Debt cases: Nebraska v. Biden and Dept of Education vs. Brown, joined by:

Liza Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security Program, and a nationally expert on presidential emergency powers. She wrote immediately after the Biden plan was announced for the Washington Post: “Biden Using Emergency Powers for Student Debt Relief? That’s a Slippery Slope,” linked here.

And we’re joined by Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center.

Jed explains his amicus brief (and essay proposing an "Emergency Question Doctrine" to limit the Major Question Doctrine), which Justice Kavanaugh mentioned in oral argument, linked here.

Materials Mentioned in this Episode:

Materials Mentioned in this Episode:

Biden v. Nebraska Department of Education

Docket

         Oral Argument

Department of Education v. Brown

Docket

Oral Argument

Brief of Jed Handelsman Shugerman as Amicus Curiae in Support of Respondents. Linked here.

Jed Shugerman, "Major Questions and an Emergency Question Doctrine: The Biden Student Debt Case Study of Pretextual Abuse of Emergency Powers." 2023. Linked here.

Jed Shugerman, “The Biden Student Debt Plan is a Legal Mess,” The Atlantic, Sept. 2022. Linked here. Subscription required. 

Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,” The Atlantic, January/February 2019.  Linked here. Subscription to the Atlantic required.

West Virginia v. EPA, 597 U.S. ___ (2022). Linked here. 

Zephyr Teachout. Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United. Cambridge, MA: Harvard University Press (2016).  Buy on Amazon. 

Massachusetts v. EPA, 549 U.S. 497 (2007). Linked here.

Andrew Kent, Ethan J. Leib, Jed Handelsman Shugerman, “Faithful Execution and Article II, 132 Harvard Law Review 2111 (2019). Linked here.

This Presidents’ Day episode on presidential power over war and foreign policy coincides with the one-year anniversary of Russia’s invasion of Ukraine, Feb. 24th. A veteran of four administrations' foreign policy teams, Yale Law professor Harold Koh, and Fordham Law colleagues Martin Flaherty and Tom Lee connect both topics: the Russian invasion, the history of presidential power, and the overlapping questions of national security and the risks to democracy from the outside – and from within the Oval Office.

Harold Koh is a visiting professor at Fordham this spring, and Sterling Professor of International Law and former Dean at Yale Law School. He has served under four US presidents: in the Reagan DOJ, the Clinton State Department, the Obama State Department, and recently as Senior Advisor to the Biden State Department. He is author of the book “The National Security Constitution,” and discusses his update to the book, “The 21st Century National Security Constitution” (forthcoming 2023).

Tom Lee is Leitner Family Professor of International Law at Fordham. Tom has a forthcoming book, “Justifying War,” and he also has extensive experience in the U.S. military in intelligence and in the Defense Department as special counsel.

Marty Flaherty is Leitner Family Professor of Law and Founding Co-Director of the Leitner Center for International Law and Justice at Fordham Law School.  He is the author of the Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs, and he is also a leading expert on the history of the presidency, especially at the Founding.

Trump’s interference in the 2020 Election and the January 6 insurrection were big reasons we started this podcast. In this episode, we get some updates on those investigations and ask some questions about some of the progress and the legal and political problems ahead.  Helping us understand the covert jury reports, we talk to Anthony Michael Kreis, professor at Georgia State College of Law. Helping us understand the January 6 investigation and the importance of “overt acts,” we talk to Alan Rozenshtein, law professor at the University of Minnesota (co-host of Lawfare’s Rational Security podcast and co-author with Jed on a new article, “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution.”)

Link to “January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution" here.

Roe was much more than a Supreme Court decision.  It was an event that changed the course of women's lives around the world.  How do we commemorate it, especially after the Supreme Court overruled the decision in Dobbs v. Jackson Women's Health last year?

Linda Greenhouse is the Pulitzer-Prize winning journalist who covered the U.S. Supreme Court for the New York Times from 1978 to 2007.  She continues to contribute op-eds regularly at the New York Times, and is a clinical lecturer and senior research scholar at Yale Law School and author of, most recently, Justice on the Brink: A Requiem for the Supreme Court (2022) and "Does the War Over Abortion Have a Future?" (NY Times Jan. 18, 2022).

Professor Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. Professor Siegel’s highly influential and prolific writing draws on legal history to explore questions of law and inequality and to analyze how courts interact with representative government and popular movements in interpreting the Constitution. Her most recent article, of relevance to today’s conversation is Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism — and Some Pathways for Resistance, forthcoming in the Texas Law Review. She is the author, along with Melissa Murray and Serena Mayeri, of the Amicus Brief of Equal Protection Law Scholars in Dobbs v. Jackson Women’s Health(2021), making equality-based constitutional arguments for abortion rights.

Further reading:

Linda Greenhouse and Reva B. Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling (2010).

Linda Greenhouse, “Requiem for the Supreme Court,” N.Y. Times, June 24, 2022

Reva B. Siegel & Douglas Nejaime, Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy, 96 N.Y.U. L. Rev. 1902 (2021)

Reva B. Siegel & Cary Franklin, Equality Emerges As A Ground for Abortion Rights (SSRN, 2022).

Ghosts of Elections Past, Present, and Future

We talked to Rick Pildes (NYU Law) a few days after the Moore v. Harper oral argument, the “independent state legislature” case that instilled many worries about the Court opening a door to state legislatures overriding the popular vote. While those fears were unfounded (so to speak), this case raises other concerns that federal courts will get more intwined with elections and will block state courts from enforcing their constitutions, overturning impermissible gerrymanders, and providing remedies. 

In “Ghosts of Elections Past, Present, and Future,” we talk about how this case is haunted not only by the 2020 election, a fake electors scheme based on the Electors Claus(e), and an insurrection; it is also haunted by ghost-of-election-past Bush v. Gore and the ghosts-of-election-future. We also ask, “Do You Hear What I Hear?” The left embracing Rehnquist’s Bush v. Gore concurrence? Jed also observes a Festivus Airing of Grievances about conservatives’ originalism errors and the Democrats’ litigation strategy.  There was barely enough historical evidence to sustain one hour of oral argument, but the Court made it last for what felt like eight. We also talk to Rick about election law in an era of fragmentation(North Pole-arization?)

Rick is the Sudler Family Professor at NYU Law School anda co-creator of the major casebook in this field, The Law of Democracy. He has served on President Biden appointed him to the President’s Commission on the Supreme Court of the United States. As a lawyer, Pildes has successfully argued voting-rights and election-law cases before the United States Supreme Court, and was part of the Emmy-nominated NBC breaking-news team for coverage of the 2000 Bush v. Gore contest. 

We discuss his recent articles and posts here:

“The Age of Political Fragmentation,” Journal of Democracy (2021).

“Election Law in an Age of Distrust,” Stanford Law Review Online (2022).

Election Law Blog on Moore v. Harper here and here.

We also discuss: 

Kate Shaw, Oral Argument in Moore v. Harper and the Perils of Finding “Compromise” on the Independent State Legislature Theory (Just Security) 

Jed’s twitter thread on Moore v. Harper and Democratic lawyers making problematic concessions here, relating to a proposed solution against remedies from Will Baude and former judge Michael McConnell here (the Atlantic).