Modeling Terrorist Radicalization

Recent high-profile terrorism arrests and litigation in New York, Colorado, and Detroit have brought public attention to the question of how the government should respond to the possibility of domestic-origin terrorism linked to al Qaeda. This symposium essay identifies and discussing one emerging approach in the United States and Europe which attends to the process of terrorist “radicalization.” States on both sides of the Atlantic are investing increasingly in developing an epistemology of terrorist violence. The results have implications for how policing resources are allocated, whether privacy rights are respected, and how religious liberty may be exercised. This essay traces the development of state discourses on “radicalization” in the United States and the United Kingdom. It argues that understanding this new “radicalization” discourse entails attention to interactions between nations and between the federal government and states as well as to the political economy of counter-terrorism

Article II and Antidiscrimination Norms

The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump v. Hawaii. Contrary to the Court’s apparent assumption, the internment cannot easily be rejected if the 2017 travel ban is embraced. There is no analytically defensible and practicably tractable boundary between the two. Recognizing this disjunction and explaining why the Court’s effort to separate past from present practice cannot prevail, I argue, reveals what might be called an “Article II discretion to discriminate.” By identifying and mapping this form of executive discretion, the Article offers a critique of the Court’s recent construction of executive power in light of historical precedent and consequentialist justifications. It further illuminates downstream distributive and regulatory consequences of executive power in the context of ongoing judicial constriction of Article II discretion over regulatory choices

The Counterdemocratic Difficulty

Since the 2020 elections, debate about the Supreme Court’s relationship with the mechanisms of national democracy has intensified. One important thread of that debate focuses critically on the possibility of a judicial decision flipping a presidential election or thwarting the will of national majorities respecting progressive legislation, and pushes concerns about the Court’s effect on national democracy. A narrow focus on specific interventions, however, does not exhaust the subtle and consequential ways in which the Court influences whether and how the American democratic system thrives or fails. A narrow focus is partial because it construes democracy as merely the aggregation of specific acts or moments, not a complex system made up of electoral institutions, the rule of law, and parties disposed to accept electoral loss. This Article offers a new analysis of the relation between judicial power and the quality of American democracy. This account is nested in a wider, systemic perspective accounting for both political and economic forces. Drawing on recent empirical work in political science and economics, this Article situates the Roberts Court at the nexus of three intersecting “long crises” of American democracy. The first is the democratic deficit embedded in the Constitution’s original 1787 design. The second is a sharp increase in wealth inequality since the 1970s. The third is the more recent reemergence of a sometimes violent “white identity politics” as a rift starkly bisecting the electorate. The fragility of American democracy arises from an untimely confluence of these three forces, which until now have been unfolding along separate tracks at different tempos. The Roberts Court arbitrages between these three counterdemocratic dynamics in ways that impose considerable pressure on the inclusive norms and representative mechanisms through which democracy works. Four lines of precedent merit attention in understanding the convergence of the “long” crises of democracy. These (1) guarantee economic capital, but not associations, a political return; (2) gerrymander civil society by rewarding hierarchical, but not egalitarian, mobilization; (3) facilitate a pernicious form of white identity politics; and (4) undermine electoral and nonelectoral foundations of democratic rotation. Through these lines of jurisprudence, economic, social, or cultural capital is parlayed into disproportionate political power. This doctrine hence entrenches such power into a form of durable incumbency. These decisions, in other words, “encase” extant distributions of economic and sociocultural power from democratic challenge. Drawing out these elements, this Article maps out the “counterdemocratic difficulty” of judicial review as presently employed

Racial Equity in Algorithmic Criminal Justice

Algorithmic tools for predicting violence and criminality are increasingly deployed in policing, bail, and sentencing. Scholarly attention to date has focused on these tools’ procedural due process implications. This Article considers their interaction with the enduring racial dimensions of the criminal justice system. I consider two alternative lenses for evaluating the racial effects of algorithmic criminal justice: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I argue first that constitutional doctrine is poorly suited to the task. It often fails to capture the full spectrum of racial issues that can arise in the use of algorithmic tools in criminal justice. Emerging technical standards of algorithmic fairness are at least attentive to the specifics of the relevant technology. But the technical literature has failed to grapple with how, or whether, various technical conceptions of fairness track policy-significant consequences. Drawing on the technical literature, I propose a reformulated metric for considering racial equity concerns in algorithmic design: Rather than asking about abstract definitions of fairness, a criminal justice algorithm should be evaluated in terms of its long-term, dynamic effects on racial stratification. The metric of nondiscrimination for an algorithmically assigned form of state coercion should focus on the net burden thereby placed on a racial minority

Why Judicial Independence Fails

Judicial independence seems under siege. President Trump condemns federal courts for their political bias; his erstwhile presidential opponents mull various court-packing plans; and courts, in turn, are lambasted for abandoning a long-held constitutional convention against institutional manipulation. At the same time, across varied lines of jurisprudence, the Roberts Court evinces a deep worry about judicial independence. This preoccupation with threats to judicial independence infuses recent opinions on administrative deference, bankruptcy, patent adjudication, and jurisdiction-stripping. Yet the Court has not offered a single, overarching definition of what it means by the term “judicial independence.” Nor has it explained how its disjointed doctrinal interventions add up to a coherent theory of institutional autonomy. And it remains unclear how debates on judicial independence among jurists relate to debates about the same term in the larger public sphere. This Article’s first contribution is to analyze how the Roberts Court understands the term judicial independence and how its doctrinal rules fall far short of realizing even the aspirations the Court has for that term. This case study in doctrinal specification illuminates the gap between the Justices’ own ethical aspiration toward judicial independence and its institutional realization—a gap that generates confusion, uncertainty, and opportunities for circumvention. This Article then abstracts away from the particulars of the Roberts Court’s jurisprudence to explore the origins of this aspiration– implementation gap. To motivate this more general analysis, it first demonstrates that there is a large range of constitutional-design options for a founder seeking to create independent courts. The Framers of Article III embraced certain of these options and rejected others. Specifically, they preferred ex post to ex ante checks on political interference in the judiciary. Subsequent experience, though, has demonstrated that their choice of judicial independence’s institutional forms rested on flawed presuppositions. In particular, the Framers failed to anticipate the rise of partisanship as a motivating principle for national political action, and also the unexpectedly strong incentives that push legislatures toward vague or ambiguous statutory texts, leaving ample discretion for judges’ policy preferences. Today, it is possible to identify a range of instruments through which elected actors can achieve such unraveling. The three most important can be labeled cracking, packing, and stacking by analogy to techniques of partisan gerrymandering. This taxonomical exercise illuminates how, in practice, the jurisprudence and politics of judicial independence fall so far short of professed ethical aspirations. This exercise further points toward the possibility of a more institutionally grounded account of what plausibly can be expected in terms of federal court autonomy from the partisan currents of American political life

The People Against the Constitution

A review of Jan-Werner Müller, What Is Populism?