Reverse Political Process Theory

Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, to the more recent same-sex marriage decision based principally on the fundamental nature of marriage (rather than the political status of gays and lesbians), it is now an uncontroversial observation that when it comes to applying the open-textured provisions of the Constitution, the Court sees no distinction between the powerless and powerful. This Article challenges that conventional wisdom from a perhaps unexpected direction. I argue that the Court has gone further than to merely reject the political process theory of constitutional interpretation, under which powerless discrete and insular minority groups alone would be entitled to heightened judicial solicitude. In several doctrinal areas, the Court has reversed the theory\u27s core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all while withholding similar protections from less powerful counterparts. After describing these doctrinal developments, this Article offers a critical account of the Court\u27s long and tumultuous relationship with political process theory. I conclude that although opponents of the theory may have been fair to question its ability to restrain judges as a positive principle of constitutional adjudication, political process theory ought to retain force as a negative command. That is to say, even if one believes judges cannot avoid substantive value judgments when deciding which groups are so powerless as to warrant extraordinary protection from the democratic bazaar, attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves

Consequences and the Supreme Court

May the Supreme Court consider consequences when it decides the hard cases that divide us? The conventional wisdom is that it may not. Scholars have argued, for example, that consequentialism is a paradigmatic “anti-modal” form of reasoning at the Court. And the Court itself has declared that “consequences cannot change our understanding of the law.” This Article presents evidence of a possible shift in the standard account. Although many kinds of consequentialist arguments remain forbidden, such as naked judicial efforts to maximize social utility, a particular form of consequentialism is now surprisingly common when the Supreme Court confronts hard cases. In the past few years, the Court has issued no fewer than a dozen opinions in which it expressly identifies the potential adverse consequences of its decision, predicts how losing groups may respond, and rules in a manner that ensures those losing groups will have meaningful options for avoiding their consequences after defeat. What is more, this consequentialist turn is transsubstantive, occurring in constitutional, statutory, and administrative law cases alike. After canvassing these rulings, this Article invites debate on whether consequentialist reasoning truly ought to be categorically forbidden in the Supreme Court’s express decision-making process. Some may have the instinct that even the slightest peek through to the consequences of the Court’s decisions is impermissible, a threat to the distinctive methods and professional practices that differentiate law from raw politics. But open attention to harmful consequences—and the ways in which losing groups might avoid them—can serve salutary aims, too. In particular, a genuine concern for the consequences that its rulings threaten to inflict might help the Supreme Court make meaningful inroads against the mounting public perception that the Court is callous, elitist, and out of touch

How Do Judges Decide School Finance Cases?

There is an old riddle that asks, what do constitutional school funding lawsuits and birds have in common? The answer: every state has its own. Yet while almost every state has experienced hotly-contested school funding litigation, the results of these suits have been nearly impossible to predict. Scholars and advocates have struggled for decades to explain why some state courts rule for plaintiff school children—often resulting in billions of dollars in additional school spending—while others do not. If there is rough agreement on anything, it is that “the law” is not the answer: variation in the strength of state constitutional education clauses is uncorrelated with the odds of plaintiff success. Just what factors do explain different outcomes, though, is anybody’s guess. One researcher captured the academy’s state of frustration aptly when she suggested that whether a state’s school funding system will be invalidated “depends almost solely on the whimsy of the state supreme court justices themselves.” In this Article, we analyze an original data set of 313 state-level school funding decisions using multiple regression models. Our findings confirm that the relative strength of a state’s constitutional text regarding education has no bearing on school funding lawsuit outcomes. But we also reject the judicial whimsy hypothesis. Several variables— including the health of the national economy (as measured by GDP growth), Republican control over the state legislature, and an appointment-based mechanism of judicial selection—are significantly and positively correlated with the odds of a school funding system being declared unconstitutional. After presenting these findings, the Article discusses the important implications for school finance advocates and for constitutional and legal theory more broadly

THEMIS Observations of the Magnetopause Electron Diffusion Region: Large Amplitude Waves and Heated Electrons

We present the first observations of large amplitude waves in a well-defined electron diffusion region at the sub-solar magnetopause using data from one THEMIS satellite. These waves identified as whistler mode waves, electrostatic solitary waves, lower hybrid waves and electrostatic electron cyclotron waves, are observed in the same 12-sec waveform capture and in association with signatures of active magnetic reconnection. The large amplitude waves in the electron diffusion region are coincident with abrupt increases in electron parallel temperature suggesting strong wave heating. The whistler mode waves which are at the electron scale and enable us to probe electron dynamics in the diffusion region were analyzed in detail. The energetic electrons (~30 keV) within the electron diffusion region have anisotropic distributions with T_{e\perp}/T_{e\parallel}>1 that may provide the free energy for the whistler mode waves. The energetic anisotropic electrons may be produced during the reconnection process. The whistler mode waves propagate away from the center of the 'X-line' along magnetic field lines, suggesting that the electron diffusion region is a possible source region of the whistler mode waves

Understanding the Mechanism of Electronic Defect Suppression Enabled by Nonidealities in Atomic Layer Deposition.

Silicon germanium (SiGe) is a multifunctional material considered for quantum computing, neuromorphic devices, and CMOS transistors. However, implementation of SiGe in nanoscale electronic devices necessitates suppression of surface states dominating the electronic properties. The absence of a stable and passive surface oxide for SiGe results in the formation of charge traps at the SiGe-oxide interface induced by GeOx. In an ideal ALD process in which oxide is grown layer by layer, the GeOx formation should be prevented with selective surface oxidation (i.e., formation of an SiOx interface) by controlling the oxidant dose in the first few ALD cycles of the oxide deposition on SiGe. However, in a real ALD process, the interface evolves during the entire ALD oxide deposition due to diffusion of reactant species through the gate oxide. In this work, this diffusion process in nonideal ALD is investigated and exploited: the diffusion through the oxide during ALD is utilized to passivate the interfacial defects by employing ozone as a secondary oxidant. Periodic ozone exposure during gate oxide ALD on SiGe is shown to reduce the integrated trap density (Dit) across the band gap by nearly 1 order of magnitude in Al2O3 (<6 × 1010 cm-2) and in HfO2 (<3.9 × 1011 cm-2) by forming a SiOx-rich interface on SiGe. Depletion of Ge from the interfacial layer (IL) by enhancement of volatile GeOx formation and consequent desorption from the SiGe with ozone insertion during the ALD growth process is confirmed by electron energy loss spectroscopy (STEM-EELS) and hypothesized to be the mechanism for reduction of the interfacial defects. In this work, the nanoscale mechanism for defect suppression at the SiGe-oxide interface is demonstrated, which is engineering of diffusion species in the ALD process due to facile diffusion of reactant species in nonideal ALD

Reconfigurable Self-Assembly of Mesoscale Optical Components at a Liquid-Liquid Interface

Magnetic fields template the self-assembly of 2D mesoscale optical components consisting of magnetically responsive parts at a liquid–liquid interface. These optical components are tiles of reflective diffraction gratings. Their orientations, and the resulting optical effects, are reconfigurable by a change in the magnetic field. Transferring the assembled structure onto solid substrates generates optically functional coatings or films.Chemistry and Chemical Biolog

A Fate Worse Than Warming? Stratospheric Aerosol Injection and Global Catastrophic Risk

Injecting particles into atmosphere to reflect sunlight, stratospheric aerosol injection (SAI), represents a potential technological solution to the threat of climate change. But could the cure be worse than the disease? Understanding low probability, yet plausible, high-impact cases is critical to prudent climate risk management and SAI deliberation. But analyses of such high impact outcomes are lacking in SAI research. This paper helps resolve this gap by investigating SAI's contributions to global catastrophic risk. We split SAI's contributions to catastrophic risk into four interrelated dimensions:1. Acting as a direct catastrophic risk through potentially unforeseen ecological blowback.2. Interacting with other globally catastrophic hazards like nuclear war.3. Exacerbating systemic risk (risks that cascade and amplify across different systems);4. Acting as a latent risk (risk that is dormant but can later be triggered).The potential for major unforeseen environmental consequences seems highly unlikely but is ultimately unknown. SAI plausibly interacts with other catastrophic calamities, most notably by potentially exacerbating the impacts of nuclear war or an extreme space weather event. SAI could contribute to systemic risk by introducing stressors into critical systems such as agriculture. SAI's systemic stressors, and risks of systemic cascades and synchronous failures, are highly understudied. SAI deployment more tightly couples different ecological, economic, and political systems. This creates a precarious condition of latent risk, the largest cause for concern. Thicker SAI masking extreme warming could create a planetary Sword of Damocles. That is, if SAI were removed but underlying greenhouse gas concentrations not reduced, there would be extreme warming in a very short timeframe. Sufficiently large global shocks could force SAI termination and trigger SAI's latent risk, compounding disasters and catastrophic risks. Across all these dimensions, the specific SAI deployment, and associated governance, is critical. A well-coordinated use of a small amount of SAI would incur negligible risks, but this is an optimistic scenario. Conversely, larger use of SAI used in an uncoordinated manner poses many potential dangers. We cannot equivocally determine whether SAI will be worse than warming. For now, a heavy reliance on SAI seems an imprudent policy response.</jats:p