Taney's Zombie: Chief Justice Roger B. Taney's Life in Maryland's Black Belt: Revelations About Dred Scott and the Still Undead Commitment to White Supremacy and Racial Hatred

Teaching and Learning Guide for: Isn’t Every Crime a Hate Crime? The Case for Hate Crime Laws

Zoom-ing in on White Supremacy

The nature and sources of the New Deal Constitutional Revolution are among the most discussed and debated subjects in constitutional historiography. Scholars have reached significantly divergent conclusions concerning how best to understand the meaning and the causes of constitutional decisions rendered by the Supreme Court under Chief Justice Charles Evans Hughes. Though recent years have witnessed certain refinements in scholarly understandings of various dimensions of the phenomenon, the relevant documentary record seemed to have been rather thoroughly explored. Recently, however, a remarkably instructive set of primary sources has become available. For many years, the docket books kept by a number of the Hughes Court justices have been held by the Office of the Curator of the Supreme Court. These docket books supply a wealth of information concerning the internal deliberations of the justices. Justice Pierce Butler’s docket book in particular provides a remarkably rich set of notes on the Court’s discussions of cases in conference. Yet the existence of these docket books was not widely known, and access to them was highly restricted. As a consequence scholars knew very little about the Court’s internal deliberations in the landmark cases of its 1936 October Term. This article, which is based upon a review of all of the surviving docket books from that Term, considers what those sources can teach us about the cases comprising what some have called the “switch-in-time”: West Coast Hotel Co v Parrish, which upheld Washington State’s minimum wage law for women and overruled Adkins v Children’s Hospital; the Labor Board Cases, which upheld the constitutionality of the National Labor Relations Act; and the Social Security Cases, which upheld the constitutionality of provisions of the Social Security Act establishing an old-age pension system and a federal-state cooperative plan of unemployment insurance, as well as corresponding state unemployment compensation statutes. Considered in concert with information previously known, the data revealed by these docket books shed considerable new light on the nature of the Court’s deliberations in each of these three sets of cases, on the reasons for its decisions, and on the contention that the justices wrought a “Constitutional Revolution” in the spring of 1937.

The Lincoln Administration and the Supreme Court during the Civil War: A Letter by Attorney General Edward Bates JONATHAN W. WHITE The Lincoln administration fought the Civil War on numerous fronts. Most obvious were thephysical battlefields scatteredthrough­ out the nation. Ofnear-equal importance were the legal battles waged in state and federal courthouses in nearly every state ofthe Union. Many of Lincoln’s wartime policies engendered strong opposition and ultimately found their way into the courtroom. The issue that led to the most notable litigation was Lincoln’s decision to suspend the privilege of the writ of habeas corpus and to use the military to arrest and try civilians. Historian Mark E. Neely, Jr., has estimated that at least 14,000 civilians were arrested by the Union military during the Civil War; at least 4,271 civilians were tried in military tribunals.1 Dozens of civilians challenged their detentions in the state and federal courts.2 In one of the first cases, Ex parte Merryman (1861), Chief Justice Roger B. Taney ruled that the President did notpossess the authority to suspend the writ of habeas corpus. Other state and federal judges made similar pro­ nouncements both during and after the war. While some of these opinions, such as the Supreme Court’s ruling in Ex parte Milligan (1866), are now hailed as standard maxims of civil liberty, when they were rendered they were often viewed as disloyal attempts to aid the Southern rebellion. The New York Times, for example, accused Chief Justice Taney of wanting “to throw the weight ofthe judiciary against the United States and in favor of the rebels,” for Taney was “at heart a rebel himself.”3 In response to these judicial challenges, Lincoln adopted an unofficial policy ofignoring the courts when he believed that their rulings would undermine the Union war effort.4 One important case, In re Kemp, came before the Supreme Court of Wisconsin after 262 JOURNAL OF SUPREME COURT HISTORY Secretary of War Edwin M. Stanton (above) wanted the Wisconsin court’s Kemp decision to be overturned and agreed with Chief Justice Dixon that it should be reviewed by the U.S. Supreme Court. The Supreme Court of Wisconsin handed down a decision in a case arising out of an instance of draft resistance under the militia draft of 1862, holding that the power to suspend the privilege of the writ of habeas corpus was a legislative power, not an executive one. Luther S. Dixon (above), the chief justice of the Wisconsin court, based his opinion on Chief Justice Roger B. Taney's 1861 decision in Merryman ruling that President Lincoln had exceed­ ed his authority. several men were arrested by the military during a draft riot at Port Washington on November 10, 1862. Nicholas Kemp and other detainees petitioned their state’s highest court for a writ of habeas corpus in Decem­ ber 1862, but Union military authorities refused to bring prisoners before the court, claiming that Lincoln’s September 1862 proclamation suspending the writ of habeas corpus authorized them to detain prisoners without charges. On January 13, 1863, the Supreme Court ofWisconsin handed down its decision in the case. Relying on Taney’s “unanswerable” opinion in Merryman, the court held that suspending the privilege ofthe Once apprised of Stanton’s plan, Attorney General Edward Bates (above) immediately sent him a letter urging that it would be imprudent to appeal the Kemp decision to the U.S. Supreme Court because a favorable outcome was highly improbable. There is no record of the case being appealed. THE LINCOLN ADMINISTRATION AND THE SUPREME COURT 263 writ ofhabeas corpus was a legislative power, not an executive one. As such, President Lincoln exceeded his authority when he suspended the writ. Moreover, the court held that civilians could not be detained and tried by military authorities in “remote districts” far away from the contending armies—in places where “the civil authorities were able, by the ordinary legal process, to preserve order, punish offenders, and compel obedience to the laws.” Chief Justice Luther S. Dixon conceded that Lincoln’s actions were prompted “by the highest motives of patriotism, public honor, and fidelity to the constitution and laws” during...

Because of His Spotless Integrity of Character”: The Story of Salmon P. Chase: and Currencies Cabinets, Courts, EMILY KENDALL* Salmon P. Chase boasts an impressive re­ sume in American political history, having held both the position ofSecretary ofthe Trea­ sury in President Abraham Lincoln’s Cabinet and that ofChiefJustice ofthe Supreme Court of the United States (1864-1873). His active years during the Lincoln and Ulysses Grant administrations were some of the most politi­ cally charged years in the nineteenth century, coinciding with the Civil War, the Emanci­ pation Proclamation, and Reconstruction. Yet he is most remembered for a single decision made during his time in the Cabinet that came back to haunt him during his tenure on the high Bench: his decision to substitute specie money for fiat currency. As Treasury Secretary, Chase extolled the virtues of fiat currency as absolutely indispensable to the triumph of the Union and the survival of the country.1 As Chief Justice, Chase instead adhered to the po­ sition that legal tender was not in fact lawful, but rather unconstitutional.2 What, if anything, can account for Chase’s holding these two diametrically opposed viewpoints? Did he have a change of heart somewhere between the Cabinet and the Court, or was he yielding to political pressures? As Secretary ofthe Treasury, Chase wrote the Legal Tender Acts, so why did he not recuse himself during the Court’s eventual review of their constitutionality when he was serving as Chief Justice? The following essay seeks to answer these questions and present a complete account of one of the most controversial judicial acts in Supreme Court history, one that called a Chief Justice’s ethics into question. “HIS SPOTLESS INTEGRITY OF CHARACTER” 97 Abraham Lincoln appointed Salmon P. Chase, the most prominent and capable representative of the antislavery element of the Republican party, as his Secretary of the Treasury in 1861. Part I: Chasing the Dream: How Chase Became Lincoln’s Secretary of the Treasury On November 6, 1860, Abraham Lincoln be­ came the sixteenth President-elect after receiv­ ing 180 electoral votes and more than one mil­ lion popular ballots.3 Although he was not in­ augurated until March 4, 1861, President Lin­ coln wasted no time in appointing the men who would become his Cabinet advisors.4 Af­ ter appointing William H. Seward as Secretary of State, Lincoln turned to the vexing problem of staffing his Treasury Department.5 Lincoln was well acquainted with Chase, as the two had run against each other for the Republican nomination in the 1860 presidential election. The President had frequently and without con­ straint expressed his desire to appoint Chase as his Secretary of the Treasury, “not only on account of his acknowledged executive talent, but above all because his spotless integrity of character would at once impart confidence in the national credit.”6 He was confident that Chase was viewed as the most prominent and capable representative of the antislavery ele­ ment ofthe Republican party, and that, as such, his nomination would be favorably viewed by the second-largest element of that party.7 But Lincoln was also conflicted about whom to name to the Treasury position, and well aware that a misguided selection could prove ruinous to his administration.8 His main goal was to restore the American people’s confidence in their nation’s economy, as that confidence had been greatly shaken by mal­ administration and the stirrings of what was to become the Civil War.9 Against his per­ sonal preference for Chase was Pennsylvania’s claim to the appointment for its Senator, Simon Cameron, based on an unauthorized promise of the post by Lincoln’s managers. Pennsyl­ vania was particularly antagonistic to the po­ tential appointment ofChase for other reasons as well: because of Chase’s unwavering be­ lief in the doctrines of free trade, he would undoubtedly be opposed to any protective leg­ islation for manufacturing proposed by Penn­ sylvania.10 Once Lincoln won the election, Cameron believed that the promise of the Treasury po­ sition had all but come to fruition, with the ex­ ception of the actual appointment letter from Lincoln, viewed by Cameron as a meaning­ less formality.11...

Abraham Lincoln’s Appointments to the Supreme Court: A Master Politician at his Craft Michael A. Kahn Abraham Lincoln appointed five men to the Supreme Court during a span of thirty-six months. Four of Lincoln’s appointments were confirmed unanimously by the Senate and the fifth received a single solitary no vote.1 The Senate acted on two ofLincoln’s appointments the same day they were received and confirmed each of Lincoln’s appointees within a week of receiving the nomination. Lincoln’s mastery over this process was an impressive achieve­ ment because he was dealing with an active and energized United States Senate. Indeed, during the 1860s and early 1870s the Senate refused to confirm the last appointment of Lincoln’s predecessor; refused to allow Lincoln’s successor, Andrew Johnson, to ap­ point any Justices (choosing to abolish the seats ratherthan let Johnson fill the vacancies); and, several years later, rejected Ulysses S. Grant’s appointment as ChiefJustice!2 Lincoln was one ofthe most brilliantpoliti­ cians in American history. Lincoln’s deft, but drivenhandling ofhis own political careerbears witness to a Machiavellian genius in the han­ dling of political matters, which has inspired generations ofbiographers. However (to bor­ row from Lincoln’s most famous speech), little noted and not long remembered is the story of how Lincoln successfully packed the Supreme Courtwith right-mindedmen while achieving a myriad ofpolitical goals along the way. Lincoln’s Views ofthe Court Abraham Lincoln ascended to the presi­ dency on apersonal platformthatwas extremely critical of the Supreme Court. During his fa­ mous debates with Stephen Douglas in 1858 and thereafterduringhis campaignforthepresi­ dency in 1860, Lincoln criticizedtheDredScott decision and aggressively advocated its rever­ sal.3 In 1860 the Supreme Court was under at­ tackbythe dominantpolitical forces ofthe North and its very legitimacy was being questioned 66 JOURNAL 1997, VOL. II Abraham Lincoln is pictured here in 1862 reading the Emancipation Proclamation to his Cabinet. Second from the left is Edward Bates, who, unlike today’s Attorneys General, had no say in the selection of nominees for the Supreme Court. In fact, when Bates asked Lincoln to nominate himself as Chief Justice (“as the crowning retiring honor of my life”) the Attorney General was turned down. Also passed over in favor of Treasury Secretary Salmon P. Chase (seated at left of Lincoln) was Postmaster General Montgomery Blair. by abolitionists and unionists who feared the Court, with its reactionary ChiefJustice and its three Southern Justices, would impede the Union cause.4 In this political (and soon to be military) environment, Lincoln’s first pronouncements as president regarding the Court were eagerly anticipated. In his inaugural address, Lincoln addressed the issue of the Court’s legitimacy and role in American life. . . . , the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions ofthe Supreme Court, the in­ stant they are made in ordinary litiga­ tion between parties in personal actions the people will have ceased to be their own rulers, having to that extent practi­ cally resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the Court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault oftheirs ifothers seeks to turn their decisions to political pur­ poses.5 Lincoln thus articulated the first tenant of his political faith: neitherthe Court nor the laws, nor the rebellious acts oftraitors, would be per­ mitted to override the people’s right to form and keep the Union. He also left himselfopen to persuasion that extreme measures, in extreme circumstances, would override even the Court’s will, but he refused to openly defy or challenge the legitimacy ofthe Court. Though Lincoln had never appeared before the Supreme Court, as a sophisticated litigator he had a healthy appreciation of its potential LINCOLN’SAPPOINTMENTS 67 power and considerable respect for its process from his background. In March 1861 Lincoln could not precisely foresee the clashes his ad­ ministration would have with the judiciary over the suspension of habeas corpus, the...

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

<i>Cooley v. Board of Wardens</i> and its Nineteenth‐Century Legacy

Comments on Mark Seidenfeld’s “Revisiting Congressional Delegation of Interpretive Primacy as Foundation for <i>Chevron</i> Deference”

“Hooted Down the Page of History”: Reconsidering The Greatness of Chief Justice Taney Paul Flnkelman What is the office of ChiefJustice, if it has been used to betray Human Rights? The crime is great according to the position ofthe criminal.—SenatorCharles Sumner, February23,1865 In February 1865 the United States Senate considered what should have been a simple ap­ propriation. Four months earlier Chief Justice Roger Brooke Taney had passed away. The bill beforethe Senatewouldhaveprovidedmoneyfor a bust ofthe late Chief Justice to be placed with busts of all other deceased Justices. This was almost a pro forma honor. No other Justice had ever been denied his place in the pantheon of Americanjurists. But, no other Justice was like Roger Taney. At the time of his death, in 1864, he was de­ nounced and vilified. He was the author of the Supreme Court’s opinion in Dred Scott v. Sandford,1 and that was enough for opponents of slavery, like Senator Charles Sumner ofMassa­ chusetts, to oppose having his bust placed along side all other departed Justices. Sumner argued that “[i]f a man has done evil during his life he must not be complimented in marble.” Sumner noted that England had never honored the hated ChiefJustice Jeffreys, “famous for his talents as for his crimes.” Like Jeffreys, the Justice from Roger Brooke Taneyserved as ChiefJustice ofthe United States for twenty-eightyears butis primarilyremembered for one decision: DredScott. 84 JOURNAL1994 Maryland had been “the tool of unjust power.” Neither deserved honor. Taney had “adminis­ tered justice at last wickedly, and degraded the judiciary ofthe country, and degraded the age.” He was not to be remembered by a marble bust; rather Taney was to be dealt with inthe works of scholars. There, Sumner confidently predicted “the name ofTaney isto be hooted downthepage of history.”2 Taney and Historians In 1873, afterthe death ofTaney’s successor, Salmon P. Chase, who had been an active aboli­ tionist throughout his career, Congress finally appropriated money for busts of the last two ChiefJustices. ThisavoidedadebateoverTaney’s merits, butit did notrehabilitate him. Sincethen ChiefJustice Taney’s reputation has waxed and waned, often shaped by scholarly views about slavery, race, the Civil War, and economic devel­ opment. Most historiansofthe latenineteenth century had little good to say about Taney. ForNorthern­ ers, writing after the Civil War, Taney was a spokesman for the slavocracy that caused the War. They argued he had attempted to write the theories of John C. Calhoun into constitutional law. That was sufficient. The hooting down the pages of history continued until the turn of the century. The great nationalist historian John Ford Rhodes concluded that inDredScoffTaney “committed a grievous fault” and he “deserve[d] censure because he allowed himself to make a political argument, when only ajudicial decision was called for.” Rhodes thought “Taney sinned as a judge; and while patriotism and not selfseeking impelled him, thebetter motive does not excuse the Chief Justice; for much is demanded fromthe manwho holds thathighoffice. Poster­ ity must condemn Taney.”3 At the turn ofthe century, as American race relations changed, Taney’s reputationgrew. The North and the Supreme Court abandoned south­ ern blacks in what Rayford Logan accurately describedasthe“Betrayal oftheNegro.” Laissezfaire capitalism and social Darwinism shaped attitudes about race and politics while scholars adopted new views about slavery, race, and the coming of the Civil War. Popular culture, best exemplified by the movie Birth of a Nation, After the death of Salmon P. Chase in 1873, Congress appropriated funds for busts of Chase and Taney. By combiningthefundsintoalumpsum,Congressavoidedthe heated debate over Taney’s merits that had marked the earlier attempt to commemorate the ChiefJustice. reinforcedthese scholarlychanges.4 Not surpris­ ingly, scholars reconsidered Taney’s role in American constitutional history. Edward S. Corwin, for example, found Taney’s DredScott decisionconsistentwithAmericanconstitutional jurisprudence, althoughinthe end he considered the entire performance by the Court in that case “a gross abuse of trust.”5 In American Negro Slavery, published in 1918, Ulrich B. Phillips argued that slavery had in fact been benign, and ifnot apositive good for African-Americans, then certainly it had not beena great evilforthemeither. Phillips, the son of a former slaveowner from Georgia, had re­ ceived a Ph.D...

The first full term of Roberts Court was momentous. The two newest justices--the chief justice and Justice Alito--pledged judicial modesty in their Senate confirmation hearings, but they disregarded settled law on politically charged issues: abortion, affirmative action, campaign finance reform, punitive damages for tobacco companies, and separation of church and state. Justice Kennedy replaced Justice O'Connor as swing vote, hewing Court further to political right, while Roberts and Alito voted together in 92 percent of nonunanimous decisions. The Roberts Court has become highly activist--not shy about circumventing precedent, invalidating policy decisions by elected branches of government, and ignoring principles of federalism. The Supreme Court is moving quickly to a doctrine of constitutionalism in reverse, protecting interests of privileged over powerless. In midst of all this, there was a major victory that may be most important environmental case ever decided by Supreme Court. In Massachusetts v. EPA, Justice Kennedy joined with liberal wing of Court in a five to four decision, with Roberts writing dissent. (1) The Court held that Environmental Protection Agency has authority to regulate heat-trapping gases emitted by automobiles. Justice Stevens, writing for Court, said agency could not sidestep its authority to regulate greenhouse gases that contribute to global climate change unless it could provide a reasoned, scientific basis for its refusal. This marked first time that Supreme Court has opined about global warming. The Case In 1999, environmental groups petitioned EPA to regulate greenhouse gases, including carbon dioxide, under Clean Air Act. Their petition was supported by respected scientific opinion that a significant increase in atmospheric concentration of greenhouse gases is causing an alarming rise in global temperatures. The Clean Air Act requires agency to regulate the emission of any from ... new motor vehicles ... which causes or contributes to, pollution ... reasonably anticipated to endanger public health or welfare. (2) In 2003, EPA denied rule-making petition, reasoning (contrary to opinions of its former general counsels) that it lacks power to address global climate change and that, even if it had authority, it would be unwise to do so due to conflicting administration priorities and scientific uncertainty. The Supreme Court has repeatedly used issue of standing (the legal right to initiate a law suit) to block private individuals from challenging government actions, especially in environmental cases. Justice Scalia has led this effort, and chief justice appears to fully support Scalia's endeavor. But in this case, Court found that Massachusetts has a special position as a sovereign state whose population is at actual and imminent risk of harm from global warming: a precipitate rise in sea levels, irreversible damage to natural ecosystems, increased spread of disease, and more ferocious weather events. (3) The EPA's unwillingness to regulate motor vehicle emissions should be seen within backdrop of administration's steadfast refusal to act on global climate change: withdrawing support for Kyoto Protocol, undercutting an EPA report blaming human activity for climate change, and altering scientific reports to minimize threat of global warming. Most recently, at G-8 Summit, President Bush adamantly opposed hard targets for reduction of greenhouse gases. The EPA believes Congress did not intend for agency to regulate in sphere of global climate change. It argued before Supreme Court that carbon dioxide is not an air pollutant despite Clean Air Act's capacious definition that includes any physical or chemical substance emitted into ambient air. …

Chief Justice as Chief Executive: Taft’s Judicial Statesmanship KEVIN J. BURNS William Howard Taft is the only Ameri­ can to have served as the head of two branches of the national government. After his term as President (1909-1913), he was appointed ChiefJustice in 1921 by his fellow Ohioan, Warren G. Harding. Taft was a remarkable success as Chief Justice, putting his formidable abilities to work strengthening the powers ofthe ChiefJustice and reshaping both the Supreme Court and the federal judiciary as a whole. As a result of his lobbying, in 1922 Congress created the Conference of Senior Circuit Judges (now the Judicial Conference) and gave the Chief Justice and senior circuit court judges the ability to eliminate delays in the nation’s busiest courts by transferring judges between courts.1 Three years later, he convinced Congress to pass the 1925 Judges’ Bill, which tremendously expanded the Supreme Court’s certiorari jurisdiction and allowed it to focus on the most important constitutional and statutory questions ofthe day.2 These two reforms, taken together, made the Chief Justice the formal head and chief executive of the federal judiciary and greatly increased the power of the Supreme Court. Felix Frankfurter wrote that for his reform work, “Chief Justice Taft had a place in history.. .next to Oliver Ellsworth, who originally devised the judicial system.”3 The scholarship on Taft, the Chief Justiceship, and the Supreme Court typically tells us two things about Taft and the Taft Court. First, it tells us that William Howard Taft was ajudge at heart; he had never been a competent executive and had always wished to be Chief Justice rather than President. As Chief Justice, he was finally freed from executive responsibility and his true talents as a knowledgeable judge and skillful administrator were allowed to show them­ selves. Louis D. Brandeis summed up the sentiment well: “It’s very difficult for me to understand why a man who is so good a Chief Justice . . . could have been so bad as President.”4 Second, it views the Taft Court as reactionary; the major modern work on the Taft Court insists that under Taft, the Court “retreated from progressivism,” giving “high 48 JOURNAL OF SUPREME COURT HISTORY priority to protection of private property.”5 Even his judicial reforms have been seen as attempts to strengthen the courts in order to repress progressive legislation. One author argues that Taft was a “conservative” reformer, rejecting “social reform” and accepting “efficiency progressivism” only “to ward off specific threats to an indepen­ dent federal judiciary and to preserve a social and political equilibrium which seemed ever precarious.” Thus, he concludes that Taft’s interest injudicial reform was “but rhetoric” to hide his true desire to protect property against democratic reformers.6 As Felix Frankfurter would later opine, “The Supreme Court under Taft had reached the zenith of reaction.”7 I will argue that the traditional view of Chief Justice Taft and his Court is incom­ plete. First, modem scholarship, by seeing Taft as nothing but the Court’s chief bureau­ crat, may not only miss Taft’s real executive abilities, but it may also fail fully to understand the executive powers wielded by the modern Chief Justice. I will show that as Chief Justice, Taft made himself a true chief executive, institutionalizing a politicalexecutive power over a newly strengthened judiciary. Second, in contrast to the tradi­ tional view that claims that Taft simply worked to strengthen the Court as an oligarchic defender of property, I will contend that Taft’s work to increase the Court’s efficiency was an explicit effort to decrease the costs of litigation in order to make the administration of justice more affordable and available to the poor. This article will be divided into three parts. First, it will examine Taft’s work as Chief Justice to strengthen and expand the executive powers of his office; second, it will show the effects his reforms had in rejuve­ nating the federal judiciary as a whole and strengthening the Supreme Court in particu­ lar; and finally, it will explain, in Taft’s own terms, the progressive results of his judicial reforms. The Chief Justice Taft was deeply devoted to...

Previous articleNext article FreeReading Regents and the Political Significance of LawCristina M. RodríguezCristina M. Rodríguez Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreWhen the Supreme Court handed down its decision in Department of Homeland Security v. Regents of the University of California, in June 2020, advocates celebrated. DACA—an acronym that no longer requires definition—lived to see another day.1 Newspaper headlines marked the decision as a decisive rebuff of the Trump administration’s efforts to end the Obama-era program that shielded so-called Dreamers from deportation while authorizing them to work in the United States.2 Initiated in 2012, the Deferred Action for Childhood Arrivals program had survived almost four years of a presidential administration overtly hostile to immigrants and immigration—a government bent on unraveling as much of the administrative and political legacy of its immediate predecessors as possible.3 The Supreme Court largely affirmed the Ninth Circuit’s holding that efforts by the Department of Homeland Security (DHS) to rescind DACA were arbitrary and capricious and therefore invalid, sending DHS back to the drawing board to accomplish its objectives.4 With the 2020 presidential election less than five months away and the very real possibility of regime change in the air, the decision seemed decisive. The Supreme Court had saved DACA, at least for the time being.On the other side of the presidential election, we can now say that the Dreamers and their lawyers succeeded in using the courts to run out the clock on one of the more high-profile efforts of the Trump presidency. This success calls for an explanation. The original legal theory of DACA was predicated on its discretionary and therefore defeasible character. The government justified DACA as a series of individual acts of prosecutorial discretion, defined as the inherent discretion law enforcement officials possess to forbear from enforcement, at their convenience, in order to prioritize enforcement resources. DACA’s founding document—a memorandum issued by the Secretary of Homeland Security—included the disclaimer standard in Executive orders and agency guidance documents: “this memorandum confers no substantive right.”5 DACA’s promise, then, lasted as long as the Executive wanted it to. The promise was durable as long as President Obama remained in office but unenforceable should the Executive branch fall into the hands of officials hostile to the program.Given the apparently weak anchor DACA provided, why was it so difficult for a new administration, whose enforcement priorities did not include categorical forbearance for Dreamers, to reorient the enforcement system in its preferred direction? A conventional answer, repeated as a description of many of the Trump administration’s stumbles across regulatory arenas, was that officials were incompetent, sloppy, and disingenuous. The myriad court opinions in the DACA rescission litigation of the Trump years, from across the country and up and down the judicial hierarchy, reflected a version of this thesis. No court concluded that DACA was required by law. All parties, including the Supreme Court, seemed to agree that an administration could end the program.6 But despite efforts to respond to the demands and criticisms of the lower courts, the Trump administration could not find its way to its desired conclusion.But if the Court has implicitly acknowledged that DACA is not legally required and expressly stated that the government has the authority to wind it down, in what sense was Regents a major victory? In this essay, I argue that Regents is not a triumph in immigration law or even a decision of immigration law; far from it, the opinion contains a roadmap to DACA’s demise. The decision’s salutary outcome for immigrants also distracts us from a more ominous turn in the Roberts Court toward a reading of the immigration laws that empowers both Congress and the President to do as they please—a reading exemplified by one of the Term’s other decisions, Department of Homeland Security v. Thuraissigiam, in which the Court rejects a Suspension Clause challenge to expedited removal proceedings.7Regents does reflect a kind of political triumph, however, not just because DACA was saved but because the Court calls attention to the profound interests its recipients have in remaining in the United States and thus to their new social status, separate and apart from their legal status. And yet, within the Regents decision itself, as well as in the legal claims made against the Trump administration, are the very tools with which courts might again stymie political change designed to advance immigrants’ rights, relying on the exacting procedural regularity championed in Regents by Chief Justice Roberts.I. The Trump Administration’s Failed RescissionChief Justice Roberts opened his opinion in 2012, at the moment of DACA’s inception. But to understand what DACA sought to achieve as a matter of administration, it is important to understand what it replaced. As most every court to have heard a DACA-related dispute has recognized, implicit in the operation of an immigration enforcement regime is the authority of Executive officials to set priorities for law enforcement agents. Those priorities can encourage agents to forbear from arresting or deporting otherwise removable non-citizens as part of a larger systemic interest in channeling resources toward removals in the government’s highest interests. Beginning in 2010, Obama-era DHS officials articulated a set of priorities in guidance documents (known as the Morton Memos) in an effort to encourage line-level officials to consider non-enforcement against certain types of individuals, including those who met the criteria that would eventually define DACA – the hundreds of thousands of non-citizens lacking immigration status who had been brought to the United States as youth.8 After two years of trying to steer the enforcement system with these exhortations, DHS officials determined that few obvious or publicly visible changes to enforcement practices had occurred. The Department’s political leadership, in conjunction with the White House, thus devised DACA to protect Dreamers from deportation. The program, adopted by what came to be known as the Napolitano memorandum, invited applications for forbearance from those who satisfied carefully drawn eligibility criteria, virtually ensuring, though not guaranteeing, protection and work authorization for Dreamers.9By the time President Donald Trump took office, more than 750,000 Dreamers had been granted DACA status,10 which provided them actual and psychological relief from removal and enabled them to enter the workforce and live as if their immigration status were immaterial. As a candidate, Donald Trump vowed to rescind DACA immediately, but in his initial months in office, President Trump himself expressed ambivalence and even reservations.11 In September 2017, however, Attorney General Jefferson Sessions sent a one-page, four-paragraph letter to Acting DHS Secretary Elaine Duke to “advise” that DHS should rescind the Napolitano memorandum initiating DACA on the ground that DACA was “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of the authority of the Executive Branch.”12 The next day, in what had to have been a coordinated decision within the administration, Secretary Duke released her own memorandum terminating DACA,13 citing the Attorney General’s letter and the litigation that had called into question the legal authority for a second but now moribund Obama-era deferred action policy (Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)).14 The timing and content of each of these two administrative documents became central to the Supreme Court’s resolution of the legal question before it—whether the Trump administration’s efforts to rescind DACA had been lawful.The court case began in three different circuits, where an array of plaintiffs raised numerous substantive claims, two of which ended up before the Supreme Court: that the rescission of DACA was arbitrary and capricious in violation of the Administrative Procedure Act and that the rescission violated the Equal Protection Clause of the Constitution. In its culminating opinion, the Supreme Court first concluded that DACA did not fall into the class of non-enforcement decisions long held to be unreviewable by courts on the authority of Heckler v. Chaney.15 DACA amounted, instead, to a full-blown program for granting immigration relief and attendant benefits, justifying judicial review—review that jurisdiction-stripping provisions of the Immigration and Nationality Act (INA) also did not preclude. The Court then proceeded to hold that the rescission of DACA in its entirety was indeed inconsistent with the requirements of the APA but that none of the plaintiffs’ allegations established a “plausible” claim of racial animus under the Equal Protection Clause.But DACA was a discretionary program that the administration should have been able to undo easily, not a program that should have survived more than three years of a concerted rescission effort (assuming Trump officials’ hearts were in it). Why did a clearly permissible outcome evade the Trump administration? Though incompetence has been charged repeatedly in public commentary, the explanations offered by Chief Justice Roberts underscore that the federal courts’ conceptualization of the administration’s fault changed throughout the litigation.In his letter to Secretary Duke, Attorney General Sessions justified the rescission as legally required, in part citing the litigation risk that maintaining the program posed, given that the Fifth Circuit had invalidated President Obama’s similarly structured DAPA initiative.16 At the time, Adam Cox and I argued that the administration was hiding behind flimsy legal arguments to duck political responsibility and accountability for ending a widely popular and successful program.17 The lower courts quickly put a stop to this evasion by demanding that the Trump administration provide reasons for the rescission beyond what the courts viewed to be erroneous legal claims.18 Judge John Bates in the District for the District of Columbia actually gave the administration an opportunity to remedy the APA violation by providing the court with a more extended rationale for the rescission.19 The administration obliged with a memorandum from a new DHS Secretary, Kirstjen Nielsen, in which she purported not to disturb the Duke memorandum and its legal conclusions but added multiple policy reasons to justify the rescission.20 By elaborating on its legal reasoning and offering a policy rationale for ending DACA that could justify the rescission if the court continued to find the legal reasoning wanting—just the sort of rationale courts typically do not second-guess—the path to rescission seemed to have been cleared.And yet, at the Supreme Court, the sufficiency of the Nielsen memo went untested. In its opinion, the Court dismisses the memo’s relevance because it had been framed as an elaboration of the Duke memo and yet bore “little relationship” to the original purported basis for the agency action.21 Under hornbook administrative law, then, the Nielsen memo constituted an irrelevant post hoc rationalization. In support of this conclusion, the Court lists the familiar case law, for which the standard citation is SEC v. Chenery Corp.22, and the reasons for rejecting an elaborated justification and insisting that the agency start a new policy process or issue a new decision to invoke new reasons: that such requirements promote accountability, ensure the parties and public can respond to the agency’s authority, preserve the orderly process of review, and constrain the agency from making its reasons and therefore its policy a moving target.23Thus focused on the Duke memo, the Supreme Court offers a two-part reason for finding the rescission procedurally flawed, each part of which I consider in more detail in Part II. The first is a legal rationale not yet hit upon by the federal courts but offered by the respondents from the District of Columbia: according to the Court, the Sessions letter had concluded that DACA was unlawful because it contained the same legal defects the Fifth Circuit had found in DAPA. Because the Fifth Circuit focused its analysis on the benefits DAPA conferred (primarily eligibility for work authorization), the Secretary failed to appreciate that the Sessions letter left her with discretion to decouple the two parts of DACA and consider whether its forbearance policy standing alone, without benefits, passed legal muster.24 The second of the Court’s rationales also sounds in basic administrative law—that when it changes a policy, an agency must consider the reliance interests engendered by that policy, not because those interests are necessarily legally dispositive, but because they are always substantively relevant.25 Leaving aside the puzzlement expressed by Justice Thomas in his partial dissent—why should these reliance interests matter if some or all of the program itself was without legal foundation?—the Court gave the administration two clear assignments on remand if it hoped to continue the rescission effort.With this move, Chief Justice Roberts found a political sweet spot for someone hoping not to take sides on the merits. He did not allow the rescission to proceed, but he also avoided concluding that DACA was lawful. He thus did not close the door to an eventual gutting of DACA through elimination of the path to work authorization that made it so valuable. But whether Regents amounts to a “win” depends both on whose perspective we take and the timeframe we adopt. In the months after the decision, DACA recipients had clearly triumphed. The story’s denouement unfolded in a courtroom in the Eastern District of New York. After Regents, the government did indeed return to the drawing board. Attorney General William Barr rescinded all DOJ authorities relevant to the case, including a 2014 memorandum from the Office of Legal Counsel elaborating why the much larger DAPA program was consistent with the INA and within the Secretary’s authority.26 At DHS, Acting Secretary Chad Wolf rescinded the Nielsen and Duke memoranda and styled his own memo as beginning the process of considering DACA anew. He pledged that, while DHS conducted its fresh process, the agency would honor existing DACA grants but would no longer adjudicate new or pending applications. In his memorandum explaining these steps, Acting Secretary Wolf acknowledged the reliance interests of existing DACA holders by repeating back the Supreme Court’s articulation of those interests. But he then offered: “[w]hatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking” for those who had never received deferred action in the first place.27Litigants immediately challenged this new quasi-rescission. But rather than determine if DHS had properly adhered to the procedural path cleared by the Supreme Court, Judge Nicholas Garaufis found Wolf’s appointment to have been unlawful, thus invalidating his actions as lacking authorization—a conclusion reached by numerous courts reviewing various DHS actions in the waning days of the Trump administration.28 Whether DHS could correct this structural defect and try yet again to rescind DACA became moot with the election of Joseph R. Biden to the presidency in November 2020. Biden pledged during the campaign to shore up DACA. Not long after his inauguration, he followed through by declaring his intention to “fortify” the program.29But even though the election brought the rescission saga to an end, a deeper, more speculative strain of Regents is now in play. Despite being a procedural decision on its surface and in its holdings, Chief Justice Roberts’s novel reasoning forecasts still more legal wrangling over both DACA’s validity and, more generally, the capacity of a new president to chart a different path on immigration policy.II. Immigration and the Roberts CourtRegents ensured that DACA would survive into a new administration determined to preserve it. But the decision itself is neither a victory for immigrants’ rights in a jurisprudential sense nor a particularly probative data point in a more holistic account of immigration law in the Roberts era. Most immediately, the opinion provides a roadmap to DACA’s demise by inviting litigants and judges to separate its two pillars—categorical forbearance from removal on the one hand and eligibility for work authorization and benefits tied to deferred action status on the other—and to invalidate the latter. Beyond DACA, the prospects for a jurisprudence that restrains the coercive power of the government against non-citizens grew even dimmer this Term, despite Regents. In the unrelated decision, the Roberts Court yet another challenge to the of a enforcement and removal power expressly by what to be the Court’s from its of of the INA with a for basic process This opinion much less interest from the and public than the of DACA, but it is of far to the of immigration law first to DACA through the courts is its which the Regents Court to do As DACA was an exercise of the Secretary’s enforcement of typically from judicial The so-called benefits of DACA from the decision to forbear from removal in of and administrative back that those benefits to a of deferred it that the Obama administration deferred action as the through which to provide Dreamers some relief because of these legal discretion to an established regulatory with a and process by which recipients of forbearance could for authorization documents in various of the litigation over both DACA and the Supreme Court and the lower courts have the government’s across that the are unreviewable of enforcement In Regents, the Court to Heckler v. and its holding that the decision to to the law is not to judicial because it is to agency discretion, that is not a non-enforcement By an process to who met criteria, the administration a for immigration not a non-enforcement By DACA as a program with each to legal review, the Court thus the for the government by the of what the administration to accomplish in a way that more procedural and the of judicial despite finding DACA to be the Court does not to the of its parts on the merits. the Court fault with the Secretary’s own to decouple DACA’s two and then the and of a In finding this legally to the Secretary, Roberts is the Sessions letter to Secretary Duke, as the Chief Justice himself the Secretary’s in not clearly the Roberts and legal on DACA as a But Roberts on the that DACA policy has the same legal defects that the courts as to to chart his through the In the litigation over the Fifth in v. United had determined the relevant legal question to be whether the Secretary had authority to DAPA recipients for benefits, not whether he had authority to forbear from the class of who into the In other even under letter and the of litigation risk raised by the Fifth the Secretary could have a version of DACA. And under administrative v. agency to rescind a policy must consider in its whether the of the existing might be Because forbearance was at the very of DACA, DHS to have a policy of without and the Sessions letter did not that Regents opinion thus gave the Trump administration a a to DACA and for The agency could return to the drawing find the benefits to be legally while maintaining a policy, which it then could have out if it had articulated policy reasons for this of enforcement that took into account reliance interests on which And as in what out to be the waning months of the Trump administration, Chad Wolf the rescission process to a that the Court’s before Judge Garaufis found his authority the Court’s roadmap is no longer of to the administration But it does steer litigants of for to challenge DACA’s very down a clear path that the Court Despite not DACA’s the and reasoning of the Court’s opinion are both forbearance the of work authorization and other benefits is in This in part from the on by the Chief Justice of the Fifth Circuit’s reasoning in v. United which after a lower court decision an immigration relief program not actually at issue in Regents and that did not in a Supreme Court decision on the merits. be Attorney General Sessions put the Fifth Circuit opinion at issue by to on it in his DACA letter to the But not does Chief Justice Roberts v. United States and the of DAPA into his of the of the DACA he in an extended of the Fifth Circuit’s analysis when Secretary that she had no legal discretion to continue DACA. In his of the decision, Chief Justice Roberts up making a case for the of the And by that the Secretary consider this he is at the very least that it well be legally if not legally put if the Chief Justice it that a forbearance policy the legal it would have been for to the matter back to the agency for of an to the litigation over DAPA its not to raised the categorical forbearance it same legal Justice Thomas in his Regents opinion from the APA in which he Congress has not categorical to the removal But by the time the DAPA case had reached the Fifth that court seemed to have forbearance as a of the authority to prioritize removal for a court to the forbearance of DACA would be a of a very basic enforcement As Adam Cox and I have DACA is no less enforcement discretion for the of discretion to the Secretary and away from individual even as individual agents continue to that we have a presidential administration that to rather than wind down DACA, the central of in the Regents opinion into the courts the Biden administration to continue eligibility for work authorization other to recipients of deferred action under the DACA DACA’s to its on the to this Though a promise of forbearance the and psychological with the of eligibility for work authorization is what has made DACA for hundreds of thousands of non-citizens without legal status who are Chief Justice Roberts does not on the merits whether DHS has the authority to eligibility for work But he also does not take the of of the lower courts, which the Trump administration’s conclusion that DACA was He offers as an for the agency a that work authorization for being Sessions had but on with if the administration had through with such an and it had reached the Supreme Court a second time, Roberts and his upon would have in that of work authorization was After the making deferred action recipients to for back to the The administration would then have had to rescind or those after through and and why it was so – that, as even Justice recognized, would be no But would the Chief Justice have sent the Trump administration back for more memoranda he them to and for all up with articulated policy reasons for all of DACA, the for the Court to the of DACA on the the Court was to a decision on the the 2020 election have its the Biden administration has its intention to DACA through and This to more procedural to the program in the of it through what be a legal by the of and some of its in the District of where the who invalidated DAPA now on the and when DACA to the Court under this new no one should be if forbearance at the end, it to Congress to provide a anchor of for the The way the Chief Justice in Regents the work authorization question as for legal and the expressed by some of the at in the DAPA case back in justify the litigation risk with DACA as the Court does indeed to on a version of DACA, its decision Regents as an of the Court’s of administrative and an that Executive be by clear and even In so the Court would the of the Executive branch to and into its of a deportation regime that Congress thus far has been or to This of the Executive in the of accountability and the of would in turn another of immigration law that the Supreme Court but has been in years, including during the a of decisions over the years, the Court has the of its opinion in Regents, finding that DHS has power to to the immigration laws in of In at least two the Court rejects the of and on the political in that from And in other the Court provisions with to that would be of immigrants’ including in that in basic In other the real of the Roberts Court’s immigration jurisprudence has been to the political in with waning interest in the Executive the power Congress has to

You know what they say in show business: never follow an act with little kids, puppies, or chief justices. But here I go anyway. Before I proceed, however, for the benefit of our students I would like to acknowledge what appears to be an Albany Law School contingent sitting up in front in the audience. There is Court of Appeals Judge Victoria Graffeo; Presiding Justice of the Appellate Division, Third Department, Anthony Cardona; Appellate Division, First Department Justice Bernard Malone; and Appellate Division, Third Department Justice Anthony Carpinello. Judge and Justices, can I ask you to stand up and take a bow for our students? Thank you. And the four of them are seated next to Court of Appeals Judge Susan Read, who is an honorary Albany Law grad today. I. STATE SUPREME COURTS IN THE FEDERAL SYSTEM We have heard from some of the most eminent figures of the American judiciary today: Chief Judge Judith S. Kaye of New York, Chief Justice Shirley S. Abrahamson of Wisconsin, Chief Justice Christine Durham of Utah, and Chief Justice Jim Hannah of Arkansas. To be perfectly frank, let me tell you that I for one--and I am certainly not alone in this view--would much prefer that my rights and liberties were placed in their hands than in the majority of the current United States Supreme Court. Indeed, Justices of the Supreme Court itself share that view. They believe that is actually how our federal system of government should work. Some of the Supreme Court Justices take that view because they believe that their own Court has in recent decades abdicated its ultimate responsibility of zealously safeguarding constitutional rights and liberties--i.e., that the Court has been failing to enforce rights and liberties as vigorously as it should. Consequently, in our federal system that duty must fall upon the state supreme courts. (1) It has always been there anyway as an essential role of the American judiciary as a whole, state as well as federal. But with the much less rights-protective posture of the current Supreme Court, the state supreme courts' role is especially critical. Other Justices of the United States Supreme Court think it is entirely appropriate that the decision be left largely to the state supreme courts whether to protect the rights and liberties of their own citizens and that, if they choose to do so, they do so under their own state law. These Justices do not believe that the role of the United States Supreme Court is to be the zealous enforcer of rights and liberties. In fact, they view the Federal Constitution as a very limited, static document. They view the Bill of Rights and the Fourteenth Amendment in a minimalist, narrow fashion--as affording only the most undeniable, explicit guarantees. (2) This characterization of these Justices--and the similar characterizations of these justices by others (3)--is not opinion. Years ago, I had the opportunity to spend some time with Chief Justice William H. Rehnquist. This was shortly following his ceremonial swearing-in at the Supreme Court as Chief Justice, which--interestingly, in the context of these remarks--happened to take place together with the swearing-in of Antonin Scalia as Associate Justice. (4) At that time, I asked the Chief Justice about several very recent cases in which the United States Supreme Court had reversed decisions of the New York Court of Appeals. The New York court--somewhat audaciously in light of the Supreme Court's increasing retrenchment on rights and liberties--had actually construed and enforced constitutional protections quite broadly. The United States Supreme Court reversed the New York decisions in each of those cases on the ground that the state high court had provided too expansive an interpretation of federal constitutional rights. (5) I said to the Chief Justice that there seem to be a growing number in our country who believe that the United States Supreme Court is no longer the moral conscience of the nation, that it is no longer being viewed as the primary guardian of our rights and liberties. …

This essay explores reparative design pedagogies to advance intersecting racial justice and climate goals through the case study of the “CoDesign Field Lab: Black Belt Study for the Green New Deal.” Through engaged community design processes with Afro-descendant communities in the Black Belt South, the design action research seminar sought to reimagine and future the region as fount and staging ground for a reparation-based Green New Deal. We examine the course design and setup—including relational infrastructures to deepen collaboration between regional youth and community elders and graduate students of urban planning, architecture, landscape architecture, and design studies—and the resulting future histories of reparative infrastructures for the Black Belt. The concluding discussion considers case implications for design pedagogies, including the importance of shifting away from knowledge bases and design-cultures predicated on whiteness and white supremacy, and supporting community-based processes of reparative design and reparations centering those who have directly suffered harm and their descendant communities.