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Daily Archives: September 18, 2022

A Legitimacy Crisis of the Supreme Court’s Own Making

Brennan Center for Justice – Last term, the justices showed little concern for the public’s trust in them: “Chief Justice John Roberts said at an event last week that he doesn’t understand current questions about the Supreme Court’s legitimacy. “The [Court’s] decisions have always been publicly criticized,” the chief justice said, but it is a “mistake” to view those critiques as questioning the Court’s legitimacy so long as the Court keeps doing its job, which is “to say what the law is.” But is the Supreme Court actually doing its job? Courts are supposed to operate under rules and norms that discourage overreach and encourage public confidence. By deciding questions it doesn’t have to, making major decisions via unexplained orders, and tainting key rulings with ethical lapses, last term’s decisions give the public reason to think the Court is not saying what the law is, but what the justices personally prefer it to be. In Roberts’s concurring opinion in Dobbs v. Jackson Women’s Health Organization, which took away the right to abortion, he wrote that “if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Yet on numerous occasions last term, the Court did just that, answering questions it was not asked on the way to fulfilling long-standing conservative policy goals in ways that make the justices look much more like players in the game than referees. In Dobbs, for example, Mississippi first told the Court it could uphold both Roe v. Wade and the state’s abortion ban. Mississippi only changed its argument after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, and the new Court majority embraced this gambit. And in West Virginia v. Environmental Protection Agency, the Court gutted the ability of the EPA and other federal agencies to do their jobs by ruling on a Clean Power Plan the Biden administration had already said it had no intentions of putting into effect. If one way that judges enhance their legitimacy is by “render[ing] judgments through written opinions that explain their reasoning,” as the chief justice has said, then it is worth noting that many of the Court’s most significant decisions last term came via unsigned orders with little to no explanation. The Court used its “shadow docket” to reverse lower courts’ decisions about redistricting, pandemic mandates, and abortion access in ways that furthered conservative or Republican interests without full briefing, oral argument, or much reason for the public to understand the decisions as motivated by anything but partisanship.

It also doesn’t help the Court’s legitimacy that high-profile decisions were tainted by major ethical lapses. In January, the Supreme Court decided a case about the release of White House communications related to the January 6 insurrection. Justice Clarence Thomas issued the lone dissent in that case, which the public found out months later likely involved text messages from his wife, Ginni Thomas. (Through this incident, the public was once again reminded that the Supreme Court is the only court in the country without an ethics code, even though it is within the justices’ power to adopt one.)…”

How the Dobbs Decision Could Affect U.S. National Security

RAND Corporation, Document Number: PE-A2227-1: How the Dobbs Decision Could Affect U.S. National Security – “Women are an integral part of the military, comprising 17.2 percent of the active-duty force. They are the fastest-growing subpopulation in the military. In recent years, the Department of Defense (DoD) and military services have been deliberately recruiting women because… Continue Reading

Law Informs Code: A Legal Informatics Approach to Aligning Artificial Intelligence with Humans

Nay, John, Law Informs Code: A Legal Informatics Approach to Aligning Artificial Intelligence with Humans (September 13, 2022). Northwestern Journal of Technology and Intellectual Property, Volume 20, Forthcoming, Available at SSRN: or Artificial Intelligence (AI) capabilities are rapidly advancing, and highly capable AI could cause radically different futures depending on how it is… Continue Reading

The Financial Stability Implications of Digital Assets

Federal Reserve Board, August 2022. The Financial Stability Implications of Digital Assets Pablo D. Azar, Garth Baughman, Francesca Carapella, Jacob Gerszten, Arazi Lubis, JP Perez-Sangimino, David E. Rappoport, Chiara Scotti, Nathan Swem, Alexandros Vardoulakis, Aurite Werman – “The value of assets in the digital ecosystem has grown rapidly, amid periods of high volatility. Does the… Continue Reading

Government reports on digital assets responsive to Biden’s Executive Order on crypto

Follow-up to September 16, 2022 White House Framework on Regulating Cryptocurrency, please see the following documents related to the directive re Ensuring Responsible Development of Digital Assets: September 16, 2022 – “The White House Office of Science and Technology Policy (OSTP) is publishing its report, Technical Evaluation for a U.S. Central Bank Digital Currency System,… Continue Reading

White House Framework on Regulating Cryptocurrency

FACT SHEET:  White House Releases First-Ever Comprehensive Framework for Responsible Development of Digital Assets – September 16, 2022 – Following the President’s Executive Order, New Reports Outline Recommendations to Protect Consumers, Investors, Businesses, Financial Stability, National Security, and the Environment – The digital assets market has grown significantly in recent years. Millions of people globally, including… Continue Reading

Manufactured Uncertainty in Constitutional Law

Waldman, Ari Ezra, Manufactured Uncertainty in Constitutional Law (September 6, 2022). Fordham Law Review, Vol. 91, Forthcoming, Available at SSRN: or “Civil rights litigation is awash in misinformation. Courts find that abortion causes cancer, that adolescent hormone therapy is irreversible, that in-person voter fraud is a growing problem. Except none of that is… Continue Reading

Modeling the Future of Religion in America

“Since the 1990s, large numbers of Americans have left Christianity to join the growing ranks of U.S. adults who describe their religious identity as atheist, agnostic or “nothing in particular.” This accelerating trend is reshaping the U.S. religious landscape, leading many people to wonder what the future of religion in America might look like. What… Continue Reading

Black Wealth Datacenter

“The Black Wealth Data Center was conceived and funded by Bloomberg Philanthropies’ Greenwood Initiative, a program area aimed at increasing generational wealth and addressing systemic underinvestment in Black communities. The Greenwood Initiative conceptualized the Black Wealth Data Center to help address the problem of insufficient and inaccessible data on the topic of Black wealth. Prosperity… Continue Reading