Justice Jackson’s Birthright Citizenship Opinion Includes Black Americans In The Story Of The Nation’s Search For Equality

Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing on pending judicial nominations on April 28, 2021, in Washington. Kevin Lamarque/Pool via AP

BY AUSTIN SARAT

WILLIAM NELSON CROMWELL PROFESSOR

OF JURISPRUDENCE AND POLITICA;L

SCIENCE, AMHERST COLLEGE

In the annals of Supreme Court decisions, the public likely remembers what justices wrote for the court in famous cases, such as the Brown v. Board of Education ruling that outlawed racial segregation in public schools.

Or perhaps the public remembers great dissenting opinions that display foresight and speak across the ages. Justice John Marshall Harlan’s dissent in the 1896 Plessy v. Ferguson case, which legalized racial segregation, is a shining example.

But Supreme Court scholars and the public alike seldom pay much attention to concurring opinions, in which a justice expounds on the views of their colleagues in the majority. Some legal experts have denigrated concurring opinions as “the worst form of legal clutter… that are, usually, better left unwritten.”

On June 30, 2026, in the Trump v. Barbara ruling, Justice Ketanji Brown Jackson showed how wrong that view can be when she delivered a monumental concurring opinion in the birthright citizenship case.

Chief Justice John Roberts wrote the majority opinion, ruling that the 14th Amendment guarantees automatic citizenship to virtually everyone born on U.S. soil. The decision invalidated President Donald Trump’s executive order that sought to deny citizenship to children born to foreign parents who are unlawfully in the United States.

Jackson, however, used her concurrence to go far beyond that and offer a new understanding of the origins of the 14th Amendment’s guarantee of birthright citizenship and its promise of equal treatment. She did so while emphasizing the singular contributions of Black Americans to that endeavor.

Along the way, Jackson criticized Justice Clarence Thomas and the court’s dominant originalist jurisprudence – centered on interpreting the Constitution based on how it was understood when it was adopted – for distorting the historical record. Jackson has previously signaled that a responsible use of history requires examining all relevant sources instead of cherry-picking among them to make a particular point.

As a politics scholar who has written about history and law, I believe that years from now, when Americans look back on Trump v. Barbara, it will be Jackson, not Roberts, whom they remember.

No shrinking violet

During her brief tenure on the court, Jackson has shown herself to be no shrinking violet. From the start, she has made her voice heard during oral arguments and in her written opinions.

As political scientists Jake Truscott and Adam Feldman wrote in December 2022, after her first three months as a justice, Jackson “was by far the most active participant in oral arguments.”

Since then, nothing has changed about Jackson’s style on the bench. The Washington Examiner reports that she “took up more than 20% of the Supreme Court’s questioning last term.”

Jackson also is not shy about writing dissenting opinions, and the occasional concurrence, whether in combination with others or alone. In both her dissents and concurrences, Thomas, the court’s only other Black member and its leading proponent of originalism, has been one of her main targets.

For example, in her 2023 dissent from the court’s decision to end affirmative action in higher education, Jackson directly criticized Thomas when she wrote that “those who demand that no one think about race … refuse to see, much less solve for, the elephant in the room – the race-linked disparities that continue to impede achievement of our great Nation’s full potential.”

Originalism, Jackson-style

Jackson has also called herself an originalist. However, she departs from Thomas’ brand of originalism.

For Jackson, to understand how any provision of the Constitution was understood requires unearthing sources of constitutional meaning that have been largely ignored by others on the court.

That vision was on display in her concurring opinion in the birthright citizenship case. There, Jackson paid particular attention to what Black Americans did in inspiring and crafting the 14th Amendment.

This contrasts with the traditional originalist story that highlights white protagonists such as Pennsylvania Rep. Thaddeus Stevens, who introduced the proposal to add the 14th Amendment to the Constitution, or President Andrew Johnson, who resisted the 14h Amendment on the grounds that it infringed on states’ rights.

Justice Thomas embraced this sort of vision in Trump v. Barbara. As he tells it, the birth of the 14th Amendment can be traced to the concerns of members of the Reconstruction Congress that the 1866 Civil Rights Act, which extended certain fundamental rights to “all persons born in the United States,” would be repealed or overturned in the courts.

Black people have little or no role in Thomas’ account.

Black Americans and birthright citizenship

Jackson’s opinion registers her impatience with such an exclusion. She faults Thomas for his “narrow vision of the Fourteenth Amendment (that) bears little relationship to the history of its ratification.”

Instead, Jackson traces the 14th Amendment to work done by people “within and beyond Congress.”

Jackson follows Harvard historian Jill Lepore’s suggestion that originalist judges should always attend to “all the people who are basically knocking on the windows and banging on the doors with their ideas about what should be in the Constitution.”

As Jackson recounts, “In the decades leading up to the ratification of the 14th amendment, black Americans organized and gathered at more than 600 local and national conventions across the country. There, delegates erected the political and intellectual scaffolding of the 14th amendment and, later, for the black civil rights movement more generally.”

Contrary to Thomas, who argues that birthright citizenship applies only to former slaves and their offspring, Jackson notes that Blacks “helped galvanize the push for full equality.” When ratified, Jackson explains, “the citizenship clause thus vindicated the universalist vision of the delegates at the colored conventions and their allies in Congress.”

And in a pointed dig at her colleague, Jackson writes that the “distortion of historical facts – retellings that reimagine and repurpose past events to lend credence to misbegotten aims” – poses a grave threat to the constitutional project and America’s well-being.

Extending the work of the 1619 Project

Jackson’s concurrence in the birthright case builds on the approach to history taken by the so-called 1619 Project. That project, unveiled by The New York Times in 2019, “aimed to reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.”

Nikole Hannah-Jones, creator of the 1619 Project, insists “the United States simply would not exist without us. The idealistic, strenuous, and patriotic efforts of black Americans have helped the country live up to its founding ideals.”

Jackson fully embraces that story and, in her concurring opinion in Trump v. Barbara, extends it to include what happened in 1866 when the U.S. restated and renewed its founding commitment to equality. She suggests that the 14th Amendment would not have come into being without similar “patriotic efforts” by Black Americans.

What makes Jackson’s concurrence extraordinary, Slate’s Robyn Nicole Sanders writes, “is that it insists on telling the 14th amendment story honestly … (and) it is at moments elegiac in its remembrance of the people whose suffering and resistance gave birth to the citizenship clause.”

That is why I believe Jackson’s concurrence will be remembered as one of the great opinions produced by a Supreme Court justice.

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BOOK REVIEW: “The Fall Of Affirmative Action: Race, The Supreme Court, And The Future Of Higher Education,”

YALE LAW SCHOOL

When the U.S. Supreme Court overturned affirmative action in college admissions in Students for Fair Admissions v. Harvard in 2023, conservatives celebrated the decision as a triumph of colorblindness while liberals despaired that it was the end of racial equity. In his new book, Professor Justin Driver argues that both sides have gotten it wrong.

In “The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education,” Driver examines the consequences of what he calls “the most significant judicial opinion involving race and education since Brown v. Board of Education.”

Despite the opinion’s significance, Driver says SFFA remains profoundly misunderstood. His book sets out to clarify what the decision does and does not mean. He argues that the ruling does not mark the end of racial diversity in higher education but the beginning of a new chapter in the fight for equity.

Driver challenges conservatives by demonstrating that SFFA will create a less desirable admissions system than the old affirmative action model it replaced. He challenges liberals by arguing that their efforts to justify affirmative action have failed to confront powerful objections. Finally, he offers proposals for how universities can adopt innovative policies in the wake of SFFA that foster diversity.

Even prior to publication, the book has garnered significant attention and acclaim. In a front page story about the Trump administration’s efforts to secure university admissions data, The New York Times quoted Driver and mentioned his book. Harvard constitutional law scholar Laurence Tribe recommended the book on X, calling it “a brilliant analysis of a vital issue you may think you understand but almost certainly don't.”

In one chapter, Driver examines Chief Justice John Roberts’ allowance that colleges may award applicants an admissions boost if their personal essays “discuss how race affected his or her life, be it through discrimination, inspiration, or otherwise.” This seems virtually guaranteed to produce results that conservatives will dislike even more than the system that SFFA replaced, Driver writes.

Rather than write essays discussing their passion to study Proust, Plato, or string theory, under the SFFA regime, “Black and brown students are strongly encouraged to produce narratives of racial woe that not only utilize the victimhood mindset that conservatives loathe, but also complicate the tale of America’s racial progress that conservatives prize,” Drives writes. In the new post-SFFA era, even students who would prefer to avoid focusing on race in their essays may now feel compelled to do so, Driver continues.

In another chapter, Driver examines the competing interpretations of the 14th Amendment’s equal protection clause and its impact on affirmative action. Liberal legal scholars interpret the clause as prohibiting the government from perpetuating racial subordination, therefore making affirmative action constitutional. This anti-subordination theory, however, is far more variable than liberals allow, Driver writes. Many conservatives who oppose affirmative action claim that the programs themselves subordinate Black students. By lowering admissions standards, critics argue, affirmative action policies perpetuate the myth of Black intellectual inferiority.

“Traditional anti-subordination scholars have steadfastly refused to treat these arguments with the seriousness they deserve — or even any seriousness at all,” Driver writes.

Despite the “veritable catastrophe” that SFFA represents, Driver believes the decision leaves universities significant legal room to adopt innovative policies that will foster diversity. He devotes a chapter to outlining how universities could provide preferences for descendants of slavery, members of Native American tribes, immigrants, and applicants from low-opportunity rural and urban communities. “The death of affirmative action therefore need not mean the demise of racial diversity in higher education,” Driver writes.

Wesleyan University President Michael Roth wrote in The New York Times that "one can only hope that university leaders, faculty members and students will consult this worthy book."

Driver is the Robert R. Slaughter Professor of Law at Yale Law School and an expert in the field of constitutional law. His first book, “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind,” was selected as a Washington Post Notable Book of the Year and a New York Times Book Review Editor’s Choice.

How The Conservative Federalist Society Will Affect The Supreme Court For Decades To Come

Supreme Court Justices Samuel Alito and Clarence Thomas look on during the 60th presidential inauguration on Jan. 20, 2025, in the U.S. Capitol in Washington. Chip Somodevilla/Pool Photo via AP

AUTHORS:

PAUL M. COLLINS JR.

PROFESSOR OF LEGAL STUDIES AND

POLITICAL SCIENCE, UMASS AMHERST

TIM KOMATSU

PH.D STUDENT IN POLITICAL SCIENCE,

UMASS AMHERST

During the 2016 presidential election campaign, candidate Donald Trump took the unprecedented move of releasing a list of his potential Supreme Court nominees.

But Trump didn’t assemble this list himself. Instead, he outsourced the selection of his judicial appointments to leaders of the Federalist Society, an organization in the conservative legal movement.

As Trump explained in a 2016 interview, “We’re going to have great judges, conservative, all picked by the Federalist Society.”

This was a strategic decision by Trump. By turning to the Federalist Society, he was able to court conservative and evangelical voters who may have been otherwise uneasy with supporting the former New York City real estate mogul.

In his first presidential term, Trump appointed three justices affiliated with the Federalist Society – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – in addition to hundreds of lower federal court judges. Federalist Society affiliates are current or former members of the organization, as well as individuals who interact with the group, such as by attending Federalist Society events, but who may not claim membership.

We are political science scholars who recently published research in a peer-reviewed journal showing that Supreme Court justices affiliated with the Federalist Society are more conservative and more consistently conservative than other justices, meaning they seldom deviate from their conservative voting behavior.

Our research suggests that, despite Trump’s recent criticism of the organization and its leadership, justices affiliated with the Federalist Society will advance the conservative legal agenda decades into the future. But this won’t always involve supporting Trump’s agenda.

Here’s what you should know, and why it matters.

The Federalist Society

The Federalist Society for Law and Public Policy Studies was founded in 1982 with the goal of providing intellectual spaces for conservative law students who felt their views were dismissed by the legal field. It has grown tremendously over the past 40 years. Today, it boasts more than 200 chapters and over 70,000 members.

Unlike other conservative public interest groups, it does not advocate for specific issue positions. Instead, it promotes its goals primarily through education and networking.

The Federalist Society’s educational mission is pursued chiefly in law schools. That’s where it trains the next generation of lawyers in the approaches and goals of the conservative legal movement. This includes promoting the judicial philosophy of originalism – the idea that the best way to interpret the U.S. Constitution is according to how it was understood at the time of its adoption.

Originalism is often used to justify conservative outcomes.

For example, Justice Clarence Thomas, a prominent member of the Federalist Society, has called for using originalism to reconsider Supreme Court precedents involving the right to contraception, same-sex marriage and same-sex consensual relations.

The Federalist Society network also connects junior members with more senior members, helping young lawyers obtain prestigious clerkships and positions in government and the legal profession. These lawyers tend to associate with the Federalist Society throughout their careers.

Federalist Society affiliates learn that promoting the group’s interest is also a way of promoting their self-interests as they move up in the legal world.

For Supreme Court justices, this networking has tangible benefits. For instance, Justice Samuel Alito accepted a luxury fishing vacation in 2008 organized by Leonard Leo, the former executive vice president and current co-chair of the Federalist Society. The estimated cost of the fishing trip was more than $100,000.

And Thomas was treated to decades of high-end vacations and private school tuition for his grandnephew – whom he raised as a son – by billionaire businessman Harlan Crow, a Federalist Society donor.

In short, the Federalist Society is a network of lawyers and judges who share a conservative outlook on the world and aspire to etch the conservative agenda into law through judicial decisions.

Our research

Our research sought to answer two interrelated questions. Are justices affiliated with the Federalist Society more conservative than nonaffiliated justices, and are they more consistently conservative?

To illustrate this, consider former Justice David Souter, whom President George H.W. Bush appointed in 1990 and who had no connections to the Federalist Society. Despite being a Republican appointee, Souter often voted with the court’s liberal members, such as upholding abortion rights in 1992. In 2005, he wrote the majority opinion in a ruling that prevented the Ten Commandments from being displayed in courthouses and public schools.

To determine whether justices affiliated with the Federalist Society are different from even other judges appointed by Republican presidents, we examined almost 25,000 votes cast by Supreme Court justices between 1986 and 2023. We started with 1986 because that’s when the first justice affiliated with the Federalist Society – Antonin Scalia – joined the high court.

We classified votes as conservative or liberal according to a well-established methodology. For example, conservative votes support the restriction of reproductive freedom, are anti-business regulation and generally disfavor policies that promote the rights of vulnerable populations, such as the LGBTQ+ community. Liberal votes do the opposite.

We found that justices connected to the Federalist Society are about 10 percentage points more likely to cast a conservative vote than other justices, even other justices appointed by Republican presidents. And they are more consistent in their voting behavior, seldom casting votes that go against their conservative values.

The Federalist Society’s lasting impact

These findings have important implications. Justices on the modern Supreme Court serve for about a quarter century on average. And every current Republican-appointed member of the court is affiliated with the Federalist Society.

This means that Americans are likely to see justices affiliated with the Federalist Society advance the agenda of the conservative legal movement for decades to come. This has already happened in recent decisions that curtailed reproductive freedom, eliminated affirmative action in college admissions and expanded the powers of the president, including immunizing the president from criminal prosecution.

President Trump has recently had a high-profile breakup with the Federalist Society, calling Leo a “sleazebag” and expressing his disappointment with the organization.

Trump’s outburst followed a ruling by the U.S. Court of International Trade that blocked his sweeping tariff program against China and other nations. This happened despite one of Trump’s first-term judicial appointees sitting on the panel.

Notwithstanding this acrimony, this term will give justices affiliated with the Federalist Society the opportunity to further solidify the conservative agenda. Cases involving LGBTQ+ rights and federal elections are on the docket. And the court will be adding other important issue areas as it fills out its caseload for the 2025-26 term, which starts on the first Monday in October.

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Federal Threats Against Local Officials Who Don’t Cooperate With Immigration Orders Could Be Unconstitutional − Justice Antonin Scalia Ruled Against Similar Plans

In a 1997 opinion, Supreme Court Justice Antonin Scalia wrote that the Constitution barred the federal government from ‘impress[ing] into its service…the police officers of the 50 States.’ Alex Wong/Getty Images

BY CLAIRE B. WOFFORD

ASSOCIATE PROFESSOR OF POLITICAL

SCIENCE, COLLEGE OF CHARLESTON

President Donald Trump has begun to radically change how the U.S. government handles immigration, from challenging long-held legal concepts about who gets citizenship to using the military to transport migrants back to their countries of origin.

Trump’s administration is doing more than reshaping the approach of the federal government toward migrants: It has now ordered state and local officials to comply with all federal immigration laws, including any new executive orders. It has warned that if those officials refuse, it may criminally prosecute them.

The specter of a federal prosecutor putting a city’s mayor or a state’s governor in jail will raise what may be the greatest source of conflict in the U.S. Constitution. That conflict is how much power the federal government can wield over the states, a long-standing and unresolved dispute that will move again to the front and center of American politics and, in all likelihood, into American courtrooms.

Investigate for potential prosecution

Besides the avalanche of executive orders remaking the federal government’s policies for the nation’s borders, a new directive from the Department of Justice provoked political backlash. Legal action may very well follow.

In the Jan. 21, 2025, memo, Acting Deputy Attorney General Emil Bove, one of Trump’s former private attorneys, directs federal prosecutors to “investigate … for potential prosecution” state and local officials who “resist, obstruct, or otherwise fail to comply” with the new administration’s immigration orders.

The memo lists multiple federal statutes that such conduct could violate, including one of the laws used to charge Donald Trump related to the Jan. 6, 2021, violence at the U.S. Capitol.

Several of Trump’s executive orders, across a range of policy areas, have already provoked lawsuits. One was declared “blatantly uconstitutional” by a federal district court judge just three days after it was signed. Others fall easily within the bounds of presidential power.

But the Department of Justice memo is different.

By ordering federal prosecutors to potentially arrest, charge and imprison state and local officials, it strikes at a fundamental tension embedded in the nation’s constitutional structure in a way that Trump’s other orders do not. That tension has never been fully resolved, in either the political or legal arenas.

Bulwark against tyranny

Recognizing that division of power was necessary to prevent government tyranny, the nation’s founders split the federal government into three separate branches, the executive, legislative and judicial.

But in what, to them, was an even more important structural check, they also divided power between federal and state governments.

The practicalities of this dual sovereignty – where two governments exercise supreme power – have had to play out in practice, with often very messy results. The crux of the problem is that the Constitution explicitly grants power to both federal and state governments – but the founders did not specify what to do if the two sovereigns disagree or how any ensuing struggle should be resolved.

The failure to precisely define the contours of that partitioning of power has unfortunately generated several of the country’s most violent conflicts, including the Civil War and the Civil Rights Movement. The current Justice Department memo may reignite similar struggles.

As Bove correctly noted in his memo, Article 4 of the U.S Constitution contains the supremacy clause, which declares that federal laws “shall be the supreme Law of the Land.”

But Bove failed to mention that the Constitution also contains the 10th Amendment. Its language, that “(a)ll powers not granted to the federal government are reserved to the states or to the people, respectively,” has been interpreted by the Supreme Court to create a sphere of state sovereignty into which the federal government may not easily intrude.

Known as the “police powers,” states generally retain the ability to determine their own policies related to the health, safety, welfare, property and education of their citizens. After the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health removed federal protection for abortion rights, for instance, multiple states developed their own approaches. Marijuana legalization, assisted suicide, voting procedures and school curriculum are additional examples of issues where states have set their own policies.

This is not to say that the federal government is barred from making policies in these areas. Indeed, the great puzzle of federalism – and the great challenge for courts – has been to figure out the boundaries between state and federal power and how two sovereigns can coexist.

If it sounds confusing, that’s because it is. The country’s best legal minds have long wrestled with how to balance the powers granted by the supremacy clause and the 10th Amendment.

Push and pull

Reflecting this tension, the Supreme Court developed a pair of legal doctrines that sit uneasily alongside each other.

The first is the doctrine of “preemption,” in which federal law can supersede state policy in certain circumstances, such as when a congressional statute expressly withdraws certain powers from the states.

At the same time, the court has limited the reach of the federal government, particularly in its ability to tell states what to do, a doctrine now known as the “anti-commandeering rule.” Were the Trump administration to go after state or local officials, both of these legal principles could come into play.

The anti-commandeering rule was first articulated in 1992 when the Supreme Court ruled in New York v. United States that the federal government could not force a state to take control of radioactive waste generated within its boundaries.

The court relied on the doctrine again five years later, in Printz v. United States, when it rejected the federal government’s attempt to require local law enforcement officials to conduct background checks before citizens could purchase handguns.

In an opinion authored by conservative icon Antonin Scalia and joined by four other Republican-appointed Supreme Court justices, the court held that the Constitution’s framers intended states to have a “residuary and inviolable sovereignty” that barred the federal government from “impress[ing] into its service … the police officers of the 50 States.”

“This separation of the two spheres is one of the Constitution’s structural protections of liberty,” Scalia wrote. Allowing state law enforcement to be conscripted into service for the federal government would disrupt what James Madison called the “double security” the founders wanted against government tyranny and would allow the “accumulation of excessive power” in the federal government.

Justice John Paul Stevens dissented, pointing out that the 10th Amendment preserves for states only those powers that are not already given to the federal government.

What happens at the Supreme Court?

The anti-commandeering and preemption doctrines were on display again during the first Trump administration, when jurisdictions around the country declared themselves “sanctuary cities” that would protect residents from federal immigration officials.

Subsequent litigation tested whether the federal government could punish these locales by withholding federal funds. The administration lost most cases. Several courts ruled that despite its extensive power over immigration, the federal government could not financially punish states for failing to comply with federal law.

One circuit court, in contrast, formulated an “immigration exception” to the anti-commandeering rule and upheld the administration’s financial punishment of uncooperative states.

The Supreme Court has never directly ruled on how the anti-commandeering rule works in the context of immigration. While the Printz decision would seem to bar the Justice Department from acting on its threats, the court could rule that given the federal government’s nearly exclusive power over immigration, such actions do not run afoul of the anti-commandeering doctrine.

Whether such a case ever makes it to the Supreme Court is unknown. Recent events, in which a Chicago school’s staff denied entry to people they thought were immigration agents, seem to be heading toward a federal and state confrontation.

As a court watcher and scholar of judicial politics, I will be paying close attention to see whether the conservative majority on the court, many of whom recently reiterated their support for the anti-commandeering doctrine, will follow Scalia and favor state sovereignty.

Or will they do an ideological about-face in favor of this chief executive? It would not be the first time the court has taken this latter option.

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What To Expect From Federal Judges Appointed By Trump or Harris − based On What We’ve Seen From Trump And Biden Picks For The Supreme Court And Lower Courts

BY PAUL M. COLLINS JR.

PROFESSOR OF LEGAL STUDIES 

AND POLITICAL SCIENCE,

UMASS AMHERST

The past eight years have clearly demonstrated that who sits on the federal courts matters.

The country has watched the Supreme Court take a sharp turn to the right on issues such as abortion, the Second Amendment and presidential power.

And the public has lost faith in the Supreme Court, which has an approval rating of 40%, a record low.

The opening of the court’s term on Oct. 7, 2024, provides an opportunity to think about how presidential candidates Donald Trump and Kamala Harris differ with respect to the appointment of judges.

During their terms, the Trump-Pence administration appointed 223 federal district court and court of appeals judges, and the Biden-Harris administration has thus far appointed more than 210 district court and court of appeals judges. Together, this makes up just over half of all judges serving on these courts.

As a leading expert in the selection of federal judges and judicial decision-making, I have thoroughly analyzed both candidates’ records regarding judicial nominations. What emerges is a stark contrast between the two.

The Trump-Pence administration emphasized the selection of very conservative jurists with deep ties to the conservative legal movement. In contrast, the Biden-Harris administration sought to diversify the federal bench, making it more closely reflect the America it represents.

Trump-Pence administration’s extreme, conservative judges

During the 2016 presidential campaign, Trump made two unprecedented moves regarding the appointment of federal judges.

That year, Trump was the first candidate in American history to release a list of his potential Supreme Court picks during the campaign, which he did again in 2020. He has not yet done this in his 2024 election bid.

True to his word, Trump’s three Supreme Court nominees came from these lists, which were assembled and made public to alleviate the concerns of conservatives skeptical of his candidacy.

Second, Trump outsourced the selection of his federal judges to elites in the conservative legal movement, a network of wealthy individuals and organizations devoted to advancing conservative causes in the legal system. Issues central to the movement include restricting access to abortion, limiting business regulation and promoting originalism, a judicial philosophy based on the idea that the Constitution has a fixed meaning.

Elite individuals with ties to the Federalist Society and Heritage Foundation, two of the most powerful organizations in the conservative legal movement, played the foremost roles in selecting Trump’s judicial nominees.

In particular, Leonard Leo, the current co-chairman and former executive vice president of the Federalist Society, which describes itself as placing a “premium on individual liberty, traditional values, and the rule of law,” was primarily responsible for the selection of the judges Trump nominated to the federal bench.

For Trump and the conservative legal movement, this was a winning strategy. With Republicans in control of the Senate during Trump’s presidency, these judges were overwhelmingly confirmed even when they lacked the qualifications expected of a typical federal judge, such as trial court experience.

Once confirmed, Trump’s judicial nominees advanced the conservative agenda through their votes and opinions. The overturning of Roe v. Wade, which was opposed by more than 60% of the public, is clearly demonstrative of this conservative agenda, and there is a broader pattern.

Research shows that judges affiliated with the Federalist Society are substantially more conservative than even their counterparts in the Republican Party who are not associated with the organization.

Since Trump was able to appoint more than 200 federal judges to lifetime terms, including three Supreme Court justices, this means that the conservative turn will last for decades, if not generations.

In short, Trump’s judges are true believers in the mission of the conservative legal movement, and their decision-making reflects this.

Biden-Harris administration’s focus on diversity

The Biden-Harris administration took a different approach to selecting federal judges.

For almost all of the nation’s history, federal judges were chosen from an elite group of white men.

Qualified individuals were kept out of becoming federal judges because of their race, gender, ethnicity, religion, sexual orientation or a combination of these identities. Under Trump, 84% of judges confirmed were white and 76% were men.

This resulted in an American judiciary that looked very different than the mosaic that makes up the country.

Biden pledged to change this.

And he did.

This was most obvious in Biden’s 2022 promise to appoint the first Black women to the Supreme Court, which resulted in the nomination of Ketanji Brown Jackson.

It was also demonstrated by the administration’s lower court nominations.

Unlike the Trump-Pence administration, whose federal judicial appointees were overwhelmingly white men, the Biden-Harris administration identified and nominated a diverse group of qualified federal judges. In fact, the federal judiciary under the Biden-Harris administration is the most diverse in terms of race, gender and ethnicity in the nation’s history. Only 38% of judges confirmed under the Biden-Harris administration were white, and only 36% were men.

And racial and gender diversity on the bench matters. Judges admit that their personal experiences can shape how they approach cases, and research confirms this. Scholars have shown that female judges and judges of color are more progressive than other judges, particularly on issues that they have unique experiences with, such as gender and racial discrimination.

For instance, Biden appointee Judge Candace Jackson-Akiwumi is only the second Black women to serve on the 7th U.S. Circuit Court of Appeals. In a 2022 case, she wrote the majority opinion allowing a Black couple to present their claims of racial discrimination relating to housing to a jury. In contrast, Trump appointee Amy Joan St. Eve, a white woman, dissented and downplayed the negative consequences of the racial epithets used against the couple.

And beyond judicial decisions, research also shows that having diverse representation on the courts can lead to an increase in support for courts among women and people of color.

Although it is a bit too early to reach firm conclusions, it appears that the Biden-Harris administration’s judicial appointees are moderate liberals. For instance, thus far Brown Jackson is more moderate than liberal Justices Elena Kagan and Sonia Sotomayor, who were appointed by President Barack Obama.

The bottom line

The Trump-Pence and Biden-Harris administrations took very different approaches to the selection of federal judges.

Trump will be remembered for his ideological approach, working with elites in the conservative legal movement to select very conservative judges. In contrast, the Biden-Harris administration’s legacy will be its focus on diversity, which resulted in the appointment of judges who reflect the many identities of the American public.

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In ‘Lovely One,’ Ketanji Brown Jackson Credits The Mentors Who Lifted Her Up

Justice Ketanji Brown Jackson at NBC Studios to discuss her memoirs "Lovely One" on September 3, 2024, Image: Nathan Congleton/NBC

BY ALEXANDRA JACOBS

Justice Ketanji Brown Jackson handed down many important decisions on her way to becoming the first Black woman appointed to the nation’s highest court in 2022. But perhaps the most astute was rejecting a career in the magazine industry before anyone could see it was dying.

In a packed but fast-moving new memoir, “Lovely One,” Jackson tells how 30 years before, during a brief stint as a reporter-researcher at Time, she suggested that a top editor might want to send someone to cover Hurricane Andrew. “Oh, we don’t do weather stories,” he replied dismissively of the storm that would cause $27 billion in damage, including ripping the roofs off most homes on her parents’ street in Miami.

“Win or lose a case, the law was logical and understandable,” she writes, “whereas in journalism the criteria for one story being chosen over another seemed subjective and often somewhat arbitrary.”

Subjective? Supreme Court cases? Never.

Jackson also considered becoming a Broadway actress, teaching herself to sing for a college revue about Billie Holiday, and her book could probably be optioned for a bio-musical itself. (Imagine the big “Immunity” number!) “Lovely One” is about motivation and mentors, swooshing through a résumé without apparent flaw. It’s a great glass elevator of uplift.

The title is the translation of Jackson’s given name, Ketanji Onyika, a phrase from an untraced African dialect suggested by her Aunt Carolynn, a missionary. Ketanji was born in Washington, D.C., on Sept. 14, the same date as Constance Baker Motley, the first Black female federal judge, who became her “personal heroine and forever role model.”

Her father, Johnny, was a school-board attorney; her mother, Ellery, became a principal after teaching science, and little Ketanji was “an enthusiastic pupil, a Mama-pleasing little sponge,” whose foundational texts included “Danny Dunn and the Homework Machine” and the blessedly inclusive “Schoolhouse Rock!” Her younger brother, Ketajh, was more of a risk taker; he became a drug-enforcement detective in the Baltimore unit that inspired “The Wire” and served in Operation Enduring Freedom before settling down to nice relaxing work in commercial litigation.

The family’s ancestors were enslaved on plantations across the South, and the arc from there to here is majestic. Jackson describes vividly her maternal grandfather, Horace, who got fed up with chauffeuring white customers in the Jim Crow era and started a landscaping business in Florida, and her grandmother Euzera, a housekeeper turned nurse’s aide. They moved from a community on the edge of Miami known as “Colored Town” to raise their five children in a public works project called Liberty Square, which at Christmas rang out with the sound of roller skates on asphalt.

Euzera and Ellery consistently told Ketanji that she was destined for greatness and above engaging with the prejudice that lingered after desegregation, painful and plentiful as it was. At 7 or 8, the mother of a white playmate broke up the friendship after finding her “too different.” While at Palmetto High, she was a debate star (and a few years behind Jeff Bezos) — yet followed with suspicion by a salesperson when shopping for poster materials to advertise a bake sale. At Harvard, someone hung a Confederate flag in a dorm window; Jackson took part in the subsequent protests, but also cited Toni Morrison warning against racism as a distraction. When working as an associate in corporate law — this after clerking for Justice Stephen Breyer — she was more than once mistaken for a secretary.

Since her swearing-in, Jackson has been commended for her assertiveness as a junior member of the liberal minority; in the words of one law professor, she “came to play.” But you’ll glean more about the dynamic with her fellow judges by reading Supreme Court opinions than from this book, from which Samuel A. Alito Jr. and Clarence Thomas are entirely absent and the rest of the gang mentioned only briefly.

“Lovely One” is formally written, but quite personal. The judge unwinds her fairy-tale love story with Patrick Jackson, a Boston Brahmin surgeon she met as an undergraduate, and their challenges raising two daughters, one with autism spectrum disorder, while working long hours. There are the indignities of breastfeeding and pumping, and naps stolen in a Safeway parking lot. She explains how the trademarked Sisterlocks method has made her hair routine easier, and the statement necklaces that accent her robes, like Ruth Bader Ginsburg’s collars. Readers disappointed by Breyer’s own recent, dry entry into the booming Supreme bookstakes, “Reading the Constitution,” will be gratified to see him pop up here in bicycle shorts, recommending French restaurants.

At a moment when the court is under intense scrutiny, Jackson goes heavier on work-life balance, lighter on the scales of justice — with some notable exceptions. One is the case of her Uncle Thomas, “a nonviolent bit player in a small-time drug scheme,” sentenced to life without parole — more than many murderers — when he was caught with 14 kilos of powder cocaine in his car after a few minor offenses. A friend took his case pro bono, and President Obama granted him clemency, but he died soon after being released from 28 years of imprisonment.

“There, but for the grace of God, go I,” Jackson has thought many times about him and other defendants; a phrase that seems to underline her thinking as much as the “progressive originalism” for which she’s been both lauded and attacked.

A footnote: If there’s any vestige of Jackson’s time at Time in this book, it’s a generous sprinkling of the magazine’s tradition of inverted syntax, famously parodied by the humorist Wolcott Gibbs (“Backward ran sentences until reeled the mind”). Or maybe lines like “Never again would I allow fear to shut me down when faced with the deep end of any circumstance” were the contribution of Jackson’s collaborator, Rosemarie Robotham. Either way, they add unnecessary starch to an otherwise billowingly triumphant American tale of early promise fulfilled.

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This Supreme Court Has Redefined The Meaning Of Corruption

American elections are awash in corporate cash. Dedraw Studio via Getty

BY CIARA TORRES-SPELLISCY

PROFESSOR OF LAW

STETSON UN IVERSITY

The U.S. Supreme Court is deregulating corruption, with arguably grim consequences for American democracy.

The latest example of this troubling trend was the case known as Snyder v. United States. At first glance, this may have seemed like a narrow, wonky case about whether a part of the U.S. criminal code that outlaws bribery also covers “gratuities.”

Yet the court’s decision, issued on June 26, 2024, kneecaps federal prosecutors’ power to go after corrupt government officials.

Snyder follows a pattern of the current Supreme Court I’ve documented in three books. Since John Roberts became its chief justice in 2006, the court has made prosecuting corruption, especially at the state and local level, nearly impossible for federal prosecutors.

Gift, gratuity or bribe?

The Snyder case centered on a former mayor of Portage, Indiana, who was charged with violating federal anti-corruption law while he was mayor. He accepted US$13,000 from a truck company in 2014 after the city had signed a $1.1 million contract to buy trash trucks.

Mayor James Snyder showed up at the trucking business and said, “I need money.” He claimed the payment was a consulting fee, or gratuity.

In a 6-3 decision, along ideological lines, the court’s conservative majority overruled the lower court that convicted Snyder of bribery and the appeals court that had affirmed his conviction. The mayor should not have been prosecuted, the justices said, because federal anti-corruption statute Section 666 in question covers only bribes and not gratuities.

And bribes, it said, are paid before an official action, not after that official action is complete.

In his majority opinion, Justice Brett Kavanaugh explained why it’s not desirable for federal prosecutors to go after small-time local crooks. For one thing, he argued, many states and cities already have their own laws about politicians and gratuities; thus, the Department of Justice need not play Big Brother.

“Section 666 does not supplement those state and local rules by subjecting 19 million state and local officials to up to 10 years in federal prison for accepting even commonplace gratuities,” Kavanaugh wrote.

Deregulating campaign finance

The Supreme Court has also been narrowing what counts as corruption in campaign finance.

In a 2007 case called WRTL II, the court blew a huge hole in a federal campaign finance law called the Bipartisan Campaign Reform Act, also known as McCain-Feingold. Among other regulations, McCain-Feingold had barred “electioneering communication,” when corporations and unions buy campaign ads in the lead-up to voting.

In WRTL II, the court ruled that “corruption” in political campaigns must be “of the ‘quid pro quo’ variety, whereby an individual or entity makes a contribution or expenditure in exchange for some action by an official.”

This definition means that a briber must be cartoonishly bold in demanding a specific vote from a lawmaker in exchange for cash. Most bribery in the real world is more subtle, as the Supreme Court once recognized.

Under Roberts’ predecessor, Chief Justice William Rehnquist, the majority of justices – both left-leaning and right-leaning – saw efforts by political donors to set the agenda for political parties and elected officials as an improper corruption of the political process.

As the Rehnquist Court once concluded, corruption occurs “not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment, and the appearance of such influence.”

Money in politics

The Roberts Court’s most notorious acquiescence to money in politics was Citizens United. Issued in 2010, the Citizens United decision decided that corporations have a First Amendment right to spend as much money as they want on political ads in any American election.

Limiting corporate spending on political ads has “a chilling effect” on corporate free speech, Justice Anthony Kennedy wrote, and the government’s “anti-corruption interest” does not trump that concern.

The court reiterated this stance in 2014, when it threw out the federal limit of $123,000 in total donations per person to federal candidates over a two-year election cycle. In McCutcheon v. FEC, the court again insisted that campaign finance regulations must target only quid pro quo corruption – or “dollars for political favors.”

“Campaign finance restrictions that pursue other objectives impermissibly inject the Government” into deciding who wins an election, wrote Roberts in his majority opinion.

The chief justice was unswayed by arguments that strong campaign finance rules ensure rich and poor have an equal say in elections.

“No matter how desirable it may seem, it is not an acceptable governmental objective to ‘level the playing field,’” he wrote in McCutcheon.

Today, individual donors may sink unlimited funds into a federal election.

Redefining fraud

The Roberts Supreme Court has substantially narrowed the definition of corruption in white-collar crime cases, too.

In 2016’s McDonnell v. United States, the justices declared that Virginia Gov. Bob McDonnell did nothing wrong when he touted a dubious health product on behalf of a man who had paid for McDonnell’s wife’s clothes and his daughter’s wedding.

Four years later, the Supreme Court decided that the federal government could not prosecute a woman named Bridget Anne Kelly involved in the 2013 Bridgegate Scandal, when aides to New Jersey Gov. Chris Christie, including Kelly, intentionally caused a stifling traffic jam on the George Washington Bridge to punish one of Christie’s political opponents.

“Not every corrupt act by state or local officials is a federal crime,” wrote Justice Elena Kagan, typically considered a liberal justice, in Kelly v. United States.

The Supreme Court continued this trend in a 2023 case called Percoco v. United States.

Joseph Percoco, an aide to New York Gov. Andrew Cuomo, had been convicted of fraud in 2018 for accepting $315,000 from two New York-based corporations to promote policies that favored their businesses. The Supreme Court threw out the conviction, in large part because the money exchanged hands while he was working on Cuomo’s 2014 election campaign – meaning he was not technically in government.

Yet, Percoco used a New York government phone approximately 837 times during that period, suggesting he wanted the outside world to perceive him as a government insider with access to political power.

Traditionally, private individuals found to have “dominated and controlled” government business, as Percoco was alleged to have done, could be guilty under federal law of what’s called “honest-services-fraud.” Since Percoco, that term now covers only bribery and kickbacks.

The Supreme Court’s lax stance on corruption endangers the integrity of American democracy, as I explain in my latest book, “Corporatocracy.” From McDonnell to Kelly to Percoco to Snyder, its rulings have eviscerated anti-corruption law. That sends a message to the corrupt: “You can be venal with few legal consequences.”

Corrupt people get a pass; good government takes another hit.

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Biden Unveils A Proposal To Establish Term Limits For The Supreme Court

President Joe Biden arrives at the White House from Camp David, Sunday, July 28, 2024. (AP Photo/Manuel Balce Ceneta)

BY AAMER MADHANI

WASHINGTON (AP) — President Joe Biden has unveiled a long-awaited proposal for changes at the U.S. Supreme Court, calling on Congress to establish term limits and an enforceable ethics code for the court’s nine justices. He’s also pressing lawmakers to ratify a constitutional amendment limiting presidential immunity.

The White House on Monday detailed the contours of Biden’s court proposal, one that appears to have little chance of being approved by a closely divided Congress with just 99 days to go before Election Day.

Still, Democrats hope it’ll help focus voters as they consider their choices in a tight election. The likely Democratic nominee, Vice President Kamala Harris, who has sought to frame her race against Republican ex-President Donald Trump as “a choice between freedom and chaos,” quickly endorsed the Biden proposal. She added that the changes are needed because “there is a clear crisis of confidence facing the Supreme Court.”

The White House is looking to tap into the growing outrage among Democrats about the court, which has a 6-3 conservative majority, issuing opinions that overturned landmark decisions on abortion rights and federal regulatory powers that stood for decades.

Liberals also have expressed dismay over revelations about what they say are questionable relationships and decisions by some members of the conservative wing of the court that suggest their impartiality is compromised.

“I have great respect for our institutions and separation of powers,” Biden argues in a Washington Post op-ed published Monday. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”

Harris in a statement said the reforms being proposed “will help to restore confidence in the Court, strengthen our democracy, and ensure no one is above the law.”

The president planned to speak about his proposal later Monday during an address at the LBJ Presidential Library in Austin, Texas, to mark the 60th anniversary of the Civil Rights Act.

Biden is calling for doing away with lifetime appointments to the court. He says Congress should pass legislation to establish a system in which the sitting president would appoint a justice every two years to spend 18 years in service on the court. He argues term limits would help ensure that court membership changes with some regularity and adds a measure of predictability to the nomination process.

He also wants Congress to pass legislation establishing a court code of ethics that would require justices to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.

Biden also is calling on Congress to pass a constitutional amendment reversing the Supreme Court’s recent landmark immunity ruling that determined former presidents have broad immunity from prosecution.

That decision extended the delay in the Washington criminal case against Trump on charges he plotted to overturn his 2020 presidential election loss and all but ended prospects the former president could be tried before the November election.

Most Americans supported some form of age limit for Supreme Court justices in an AP-NORC poll from August 2023. Two-thirds wanted Supreme Court justices to be required to retire by a certain age. Democrats were more likely than Republicans to favor a mandatory retirement age, 77% to 61%. Americans across age groups tend to agree on the desire for age limits – those age 60 and over were as likely as any other age group to be in favor of this limit for Supreme Court justices.

The first three justices who would potentially be affected by term limits are on the right. Justice Clarence Thomas has been on the court for nearly 33 years. Chief Justice John Roberts has served for 19 years, and Justice Samuel Alito has served for 18.

Supreme Court justices served an average of about 17 years from the founding until 1970, said Gabe Roth, executive director of the group Fix the Court. Since 1970, the average has been about 28 years. Both conservative and liberal politicians alike have espoused term limits.

“If justices have this much power, then they should be individuals who reflect America as it currently is, not the America of 30 or 40 years ago, the dead hand of the president who appointed them still influencing policy,” Roth said.

An enforcement mechanism for the high court’s code of ethics, meanwhile, could bring the Supreme Court justices more in line with other federal judges, who are subject to a disciplinary system in which anyone can file a complaint and have it reviewed. An investigation can result in censure and reprimand. Last week, Justice Elena Kagan called publicly for creating a way to enforce the new ethics code, becoming the first justice to do so.

Still, when it comes to the Supreme Court, creating an ethics code enforcement mechanism isn’t as easy as it sounds.

The attorney general has always had the power to enforce violations of the financial and gift disclosure rules but has never apparently used that power against federal judges, said Stephen Gillers, a legal ethics expert at NYU School of Law.

The body that oversees lower court judges, meanwhile, is headed up by Roberts, “who might be reluctant to use whatever power the conference has against his colleagues,” Gillers wrote in an email.

The last time Congress ratified an amendment to the Constitution was 32 years ago. The 27th Amendment, ratified in 1992, states that Congress can pass a bill changing the pay for members of the House and the Senate, but such a change can’t take effect until after the next November elections are held for the House.

Trump has decried court reform as a desperate attempt by Democrats to “Play the Ref.”

“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court. We have to fight for our Fair and Independent Courts, and protect our Country,” Trump posted on his Truth Social site this month.

There have been increasing questions surrounding the ethics of the court after revelations about some of the justices, including that Thomas accepted luxury trips from a GOP megadonor.

Justice Sonia Sotomayor, who was appointed during the Obama administration, has faced scrutiny after it surfaced her staff often prodded public institutions that hosted her to buy copies of her memoir or children’s books.

Alito rejected calls to step aside from Supreme Court cases involving Trump and Jan. 6, 2021, insurrection defendants despite a flap over provocative flags displayed at his homes that some believe suggested sympathy to people facing charges over storming the U.S. Capitol to keep Trump in power. Alito says the flags were displayed by his wife.

Leonard Leo, co-chairman of the conservative and libertarian Federalist Society, said changes proposed by Biden are about “Democrats destroying a court they don’t agree with.”

“No conservative justice has made any decision in any big case that surprised anyone, so let’s stop pretending this is about undue influence,” said Leo, who assisted the Trump administration with the selections and confirmations of Justices Neil Gorsuch and Brett Kavanaugh.

Democrats say the Biden effort will help put a bright spotlight on recent high court decisions, including the 2022 ruling stripping away women’s constitutional protections for abortion, by the conservative-majority court that includes three justices appointed by Trump.

The announcement marks a remarkable evolution for Biden, who as a candidate had been wary of calls to reform the high court. But over the course of his presidency, he has become increasingly vocal about his belief that the court has abandoned mainstream constitutional interpretation.

Associated Press writers Mark Sherman, Seung Min Kim, Amelia Thomson DeVeaux, Lindsay Whitehurst and Michelle L. Price contributed to this report.

FRAUD AND FEDERALISM: HOW THE MODERN COURT HAS USED THE MEANING OF “PROPERTY” TO RESHAPE FEDERAL FRAUD JURISPRUDENCE

BY BENJAMIN G. SMITH

For the past several decades, the Supreme Court has repeatedly sought to reinterpret the meaning of “property” within federal fraud statutes to limit the degree to which federal prosecutors can regulate state official misconduct. While the Court’s renewed interest in the federal fraud statutes has drawn varying degrees of praise and criticism from different sides of the legal community, this Note seeks to assess—in an apolitical, value-neutral fashion—whether the Court’s doctrinal approach is effective in furthering the stated goal of drawing boundaries between federal and state actors in corruption cases.

The Note first undertakes a deep-dive analysis of the evolution of the Court’s mail and wire fraud jurisprudence. It then shows how even the most faithful applications of the Court’s fraud doctrine lead to inconsistent outcomes and fail to provide lower courts or prosecutors with clear guidance on exactly what types of misconduct can fall within the purview of the fraud statutes. 

Concluding that the dissonance between the Court’s clearly stated ideological objectives and the actual black-letter law of fraud jurisprudence is unsustainable, this Note explores alternative doctrinal approaches that might fix the current state of fraud jurisprudence. This Note contributes to the existing body of scholarship by not only offering a detailed accounting of the current state of fraud jurisprudence, but also providing a lens to analyze Supreme Court decisions that can be applied well beyond the fraud statutes themselves.

In federal criminal law, the meaning of “fraud” is at a crossroads. In Ciminelli v. United States, the Supreme Court considered a complex scheme to secure a billion-dollar contract with the State of New York.1 The defendants, a mix of private actors and state officials, rigged the bidding process in their favor.2 Crucially, this case did not hinge on the wrongdoing itself, but instead focused on whether the government’s theory of fraud was compatible with the Court’s conception of “property” as defined in its fraud jurisprudence.3 The government’s theory, rooted in the Second Circuit’s “right to control” conception of property fraud, was that the defendants deprived New York of the right to valuable economic information needed to make discretionary economic decisions.4 In a unanimous opinion, the Court rejected this theory of property and reversed the defendants’ convictions. This result is neither surprising nor unprecedented; Ciminelli is but the latest in a line of cases to reverse fraud convictions despite obvious “wrongdoing[,] deception, corruption, [and] abuse of power”5 by the defendants. Although predictable, this reversal continues a trend of troubling cases that have generated scholarly debate for decades.

On one hand, the federal mail and wire fraud statutes remain one of the most versatile and valued tools in the white-collar prosecutor’s arsenal.7 During much of the twentieth century,8 the Supreme Court rarely reviewed mail fraud convictions,9 and it even more rarely reversed appellate decisions for substantive error.10 During this era, the federal government found increasingly novel applications for the mail fraud statute.11 Even in recent years, prosecutors have secured fraud convictions in such varied cases as the “Dieselgate” emissions scandals,12 the use of state money for private campaign activities,13 the “Varsity Blues” college admissions scandal,14 the bribery of college athletes,15 and countless other applications.16

On the other hand, fraud prosecutions have faced intense scrutiny from the Supreme Court in recent decades, particularly in cases that implicate states.17 Since the 1980s, the Supreme Court reversed lower courts in four of the six cases in which the meaning of “property” was at issue.18 Each reversal exhibited three important characteristics: (1) the purported victim (or defendant) was a state actor;19 (2) the scheme did not have a “property interest” as its aim;20 and (3) the opinion was motivated in part by the Court’s announced desire to preserve state–federal divisions by limiting creative theories of fraud prosecution.21

The ideological considerations underlying the Supreme Court’s modern case law have sparked intense debate. Detractors have criticized these decisions as hindering the federal government’s ability to punish otherwise hard-to-reach instances of state corruption,22 while supporters have defended the Court’s decisions as a necessary prophylactic that protects against federal overreach into state affairs.23 Rather than joining the already-crowded debate as to the correctness of the Court’s ideological views, this Note critically examines the effectiveness of the modern fraud doctrine relative to the Court’s stated federalist agenda.

This Note argues that at the heart of the Court’s modern fraud doctrine lies a vague, superficially simple “property-or-not” test that leads to paradoxical outcomes.24 Originally rooted in cases that interpreted federal fraud to require property as a necessary element of the crime, the modern test defines property differently based on both the identity of the victim25 and the extent to which the right or interest at issue was considered property under early common law.26 In practice, the modern mutation of the property-or-not test creates outcomes in which the same fundamental right or interest might be a “property interest” in the hands of a private party while simultaneously constituting a nonproperty “regulatory interest” in the hands of a state. This Note argues that the doctrine’s reliance on the meaning of property is not only practically and analytically unworkable, but also fundamentally fails to further the Court’s ideal division between the federal and state balance of criminal power.

This Note proceeds in three parts: Part I first traces the expansion and contraction of mail and wire fraud jurisprudence and explains that the modern doctrinal shift toward property as a limiting principle was driven by the Supreme Court’s renewed interest in federalist principles. It then examines the incremental evolution of the Court’s property-or-not test from 1987 to the present day.

Part II explains how this doctrine fails to achieve the Court’s stated policy goals. Section II.A first demonstrates that the property-or-not test fails to provide lower courts a workable test in day-to-day applications. II.B then provides specific examples to illustrate how the modern property fraud doctrine fails to meaningfully prevent prosecutors from intervening in state misconduct, concluding that property fraud jurisprudence amounts to little more than a handful of technical pleading requirements.

Finally, Part III considers different methods to unravel the “property paradox” created by the current doctrine. This Part ultimately concludes that to develop a fraud doctrine that truly limits prosecutors’ ability to convict certain types of state-level wrongdoing, the Court must abandon its property-centric approach to fraud entirely. By systematically deconstructing the modern fraud doctrine and reimagining it from the ground up, this Note raises novel observations about the Court’s ideological and doctrinal approaches to federal criminal jurisprudence. These observations are not only immediately useful to the federal criminal practitioner but also carry implications about the Court’s jurisprudence that reach well beyond the fraud statutes themselves.

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