To the Editor

Abstract

To the Editor Jon O. Newman, Senior Judge March, 22, 2022 Re Courtney Chistensen’s very interesting article on Trop v. Dulles and the related cases of Perez v. Brownwell and Nishikawa v. Dulles (Vol. 64, No. 3), which (to my surprise) quotes from my law clerk memos to Chief Justice Earl Warren, four comments: 1. In 1967, the Supreme Court rejected its 1958 decision in Perez. The Court ruled 5 to 4 that the Fourteenth Amendment prohibits Congress from terminating United States citizenship. Afroyim v. Rusk, 387 U.S. 523 (1967). 2. As for Trop, it later provoked this astonishing statement by Justice Scalia, “That case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.” Glossip v. Gross, 576 U.S. 863, 899 (2015) (Scalia, J., with whom Thomas, J., joins, concurring). No doubt Scalia was bemoaning Chief Justice Warren’s explicit statement that the Eighth Amendment “must draw its meaning from the evolving standards of [End Page 232] decency that mark the progress of a maturing society,” Trop, 376 U.S. at 101 (Warren, C.J, with whom Black, J. and Douglas, J., join, dissenting), a statement that explicitly rejected an originalist view of the Eighth Amendment. Although scorning Warren’s opinion with its reference to “evolving standards of decency,” Justice Scalia had earlier acknowledged that “this Court has ‘not confined the prohibition embodied in the Eighth Amendment to “barbarous” methods that were generally outlawed in the 18th Century,’ but instead has interpreted the Amendment ‘in a flexible and dynamic manner.’” Stanford v. Kentucky, 492 U.S. 361, 369 (1986) (quoting Griggs v. Georgia, 428 U.S. 153, 171 (1976). And, he interestingly added, “[O]ur job is to identify the ‘evolving standards of decency.’” Ibid, at 378 (quoting Trop, 356 U.S. at 101 (emphasis in original)). 3. The Yale Law Journal comment referred to in Ms. Chistensen’s article, which first advanced the argument that taking away citizenship as punishment for a crime violated the Eighth Amendment, was written by then-second-year law student Stephen J. Poliak, who went on to become Advisor on National Capitol Affairs to President Johnson in 1967, Asst. Attorney General in charge of the Civil Rights Division in 1968, and thereafter a distinguished lawyer in the District of Columbia. 4. Ms. Christensen’s article frequently refers to Trop (and Perez and Nishikawa) as “denaturalization” cases, when in fact they are denationalization cases (involving loss of citizenship acquired at birth, not revocation of a fraudulently obtained naturalization certificate).1 Jon O. Newman, Senior Judge Second Circuit Court of Appeals ENDNOTE 1. Of minor import, page 338 of the article misquotes the word “pasted” (from Warren’s Trop dissent, 356 U.S. at 94) as “posted.” Copyright © 2022 Supreme Court Historical Society