Constitutional Crisis Hotline – Details, episodes & analysis

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.

 

 

Dorothy Roberts is George A. Weiss University Professor of Law & Sociology; Raymond Pace & Sadie Tanner Mossell Alexander Professor of Civil Rights; and Professor of Africana Studies Director, Program on Race, Science and Society.  She is an acclaimed scholar of race, gender and the law. Her pathbreaking work focuses on urgent contemporary issues in health, social justice, and bioethics, especially as they impact the lives of women, children and African-Americans.  In this episode, we discuss her 2022 book, Torn Apart: How the Child Welfare System Destroys Black Families--and How Abolition Can Build a Safer World and her 2019  Her major books include Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than 100 scholarly articles and book chapters, as well as a co-editor of six books on such topics as constitutional law and women and the law.

Read Dorothy Roberts’ Harvard Law Review Foreword, Abolition Constitutionalism (2019), and her November 2022 intervention in the Harvard Law Review Forum, Racism, Abolition, and Historical Resembalnce.

When a constitution reaches a crisis, should amendments be made to address it?  That’s what happens in many constitutional democracies around the world, but the United States has not had a constitutional amendment for thirty years. Article V of the U.S. Constitution, requiring two thirds of both houses of Congress and ratification by three-fourths of the states to amend it, makes our constitution nearly impossible to change in the twenty-first century. In Episode 5 on Article V, Constitutional Crisis Hotline explores alternative amendment processes from other constitutional democracies as well as the history of amending and failing to amend) the U.S. Constitution.

Zachary Elkins is Associate Professor of Government at the University of Texas-Austin.  Professor Elkins’ research focuses on issues of democracy, institutional reform, research methods, and national identity. He is co-author of The Endurance of National Constitutions, and is working on a new book,Steal this Constitution: The Drift and Mastery of Constitutional Design. Professor Elkins co-directs both the Comparative Constitutions Project, a NSF-funded initiative to understand the causes and consequences of constitutional choices, and the website Constitute, which provides resources and analysis for constitutional drafters in new democracies. 

Jill Lepore is David Woods Kemper '41 Professor of American History at Harvard University and a staff writer at the New Yorker Magazine, where she writes about American history, law, literature, and politics. She is the author of many award-winning books, including the international bestseller, These Truths: A History of the United States(2018). Her latest book is IF THEN: How the Simulmatics Corporation Invented the Future,, longlisted for the National Book Award. She is currently working on a study of the history of attempts to amend the U.S. Constitution, and is the director of the Amend Project.

 

Discussed in this episode: 

Jill Lepore’s recent essay, “The United States’ Unamendable Constitution,” The New Yorker, Oct. 26, 2022

Law professors’ draft of a new amendment rule for the United States, Article VIII of The Democracy Constitution, Democracy: A Journal of Ideas, June 2021 (and Julie’s justification of it, in “Opening the Paths of Constitutional Change”)

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), who filed an amicus brief on the role of Legacy-Plus as a non-race-neutral policy, and thus race-conscious admission programs are a balance:

https://www.supremecourt.gov/DocketPDF/20/20-1199/232386/20220801142646237_220703a%20Amicus%20Brief%20for%20efiling.pdf

Black Women Professors (the brief Eleanor Brown signed):

https://www.supremecourt.gov/DocketPDF/20/20-1199/232433/20220801152717806_SFFA%20Amicus%20Brief%20final.pdf

 

Historians’ brief:

https://www.supremecourt.gov/DocketPDF/20/20-1199/232463/20220801160903406_Harvard%20UNC%20Final%20PDF.pdfA.pdf

 

Constitutional Accountability Center brief:

https://www.supremecourt.gov/DocketPDF/20/20-1199/232463/20220801160903406_Harvard%20UNC%20Final%20PDF.pdfA.pdf

 

In 2020, Chilean voters demanded a new constitution to replace the one written in 1980 under the military dictatorship.  But in 2022, Chilean voters rejected the new constitution drafted by political independents elected to a  gender-balanced and indigenous-inclusive assembly.  Why? What was in the constitution that many described as the most progressive constitution written to date?  And what does the vote say about the prospects for constitutional reform in Chile and beyond?

Samuel Issacharoff is Bonnie and Richard Reiss Professor of Constitutional Law at NYU School of law and the author of Fragile Democracies: Contested Power in the Era of Constitutional Courts (2015). His research ranges from civil procedure to American and comparative constitutional law. He is one of the pioneers in the law of the political process, and is a co-author of the Law of Democracy casebook.

Sergio Verdugo is an Assistant Professor of Law at the IE Law School in Spain, where he teaches Constitutional Law and Human Rights Law. He is also an Editor of the International Journal of Constitutional Law (ICON) and the Secretary General of the International Society of Public Law (ICON-S). Before joining the IE University, he was the Director of the Center for Constitutional Justice of the Universidad del Desarrollo School of Law, Chile. 

Camila Vergara is a critical legal theorist, historian, and journalist from Chile and author of Systemic Corruption: Constitutional Ideas for an Anti-Oligarchic Republic.She is currently a Marie Skłodowska-Curie Fellow at the University of Cambridge.  Her writings about social movements and the constitutional process in Chile have appeared in New Left Review and Jacobin. 

• Read Sergio’s post on I-Connect Blog, The Paradox of Constitution-Making in Democratic Settings
• Read Camila’s article in New Left Review, Chile’s Rejection.
• Read the proposed new constitution for Chile. 

Dahlia Lithwick is the senior legal correspondent at Slate and host of Amicus, Slate’s award-winning biweekly podcast about the law.  Her work has also appeared in The New York Times, Harper’s, The New Yorker, The Washington Post, The New Republic, and Commentary, among other places. Her new book Lady Justice: Women, the Law, and the Battle to Save America  showcases women lawyers who have taken on Trumpism since 2016. In this episode, Fordham Law students ask: how will women save America from the continuing threats to equality?

Read Dahlia’s book, Lady Justice: Women, the Law, and the Battle to Save America

Read Julie’s New York Times book review of Lady Justice in the New York Times.

On this first episode of Constitutional Crisis Hotline, we start off with the big question: should the U.S. Constitution be scrapped?

 

Guest bios

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. Levinson is the author of approximately 400 articles, book reviews, or commentaries in professional and popular journals. His books include Constitutional Faith (1988); Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)(2006); Framed: America's 51 Constitutions and the Crisis of Governance (2012) and, with Cynthia Levinson, Fault Lines in the Constitution:  The Framers, Their Fights, and the Flaws that Affect Us Today(September 2017). Sandy recently led a group of law professors and political scientists to write a new constitution for the United States, published in Democracy: A Journal of Ideas.

• Read Sandy’s Introduction to the Democracy Constitution

 

Samuel Moyn is Chancellor Kent Professor of Law and History at Yale University. He has written several books in his fields of European intellectual history and human rights history, including The Last Utopia: Human Rights in History (2010), and Humane: How the United States Abandoned Peace and Reinvented War (Farrar, Straus, and Giroux, 2021). Over the years he has written in venues such as Boston Review, the Chronicle of Higher Education, Dissent, The Nation, The New Republic, the New York Times, and the Wall Street Journal.

• Read Sam’s op-ed in The New York Times, “The Constitution Is Broken and Should Not Be Reclaimed”

 

Additional background:

• Listen to Julie’s Constitution Day 2022 remarks on “Does the United States Need A New Constitution?” at Knox College to commemorate the 1858 debate between Lincoln and Douglas in the same location. 

Read about Jed’s take in Slate in 2019 on  “Are We in a Constitutional Crisis?”

Join Fordham Law School professors Jed Shugerman and Julie Suk as we navigate breaking news about democracies breaking. With threats to constitutional democracy at home and abroad surfacing almost daily, Jed and Julie will have real debates assessing them. Are we in a constitutional crisis yet? Is the U.S. Constitution itself the crisis? How can the law help?

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).