case study of due process of law

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Due Process Supreme Court Cases

A Due Process Clause appears in both the Fifth Amendment and the Fourteenth Amendment to the U.S. Constitution. These provide that nobody may be deprived of life, liberty, or property without due process of law. Courts have developed two branches of due process doctrine: procedural due process and substantive due process.

First, procedural due process involves the steps that must be taken before someone is deprived of an interest involving life, liberty, or property. These vary depending on the situation but typically include notice and an opportunity to be heard, as well as an unbiased decision-maker. Sometimes procedural due process also may entail a right to present evidence, a right to cross-examine opposing witnesses, and an opportunity to be represented by counsel, among other protections.

Meanwhile, substantive due process involves certain fundamental rights that are deeply rooted in American history and tradition. Notable areas in which this doctrine has arisen include reproductive rights, LGBTQ+ rights, and end-of-life decisions. A court usually applies strict scrutiny to government actions that affect fundamental rights, which means that the government must show that its action furthered a compelling interest and was narrowly tailored to achieve that interest. Earlier in its history, the Supreme Court reviewed some economic regulations through the lens of substantive due process, but it has largely abandoned this approach.

Below is a selection of Supreme Court cases involving due process, arranged from newest to oldest.

Author: Samuel A. Alito, Jr.

The Constitution does not confer a right to abortion. Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives.

Author: Elena Kagan

Due process does not require a state to adopt an insanity test that turns on a defendant's ability to recognize that their crime was morally wrong.

Author: Ruth Bader Ginsburg

The Excessive Fines Clause of the Eighth Amendment is an incorporated protection applicable to the states under the Fourteenth Amendment's Due Process Clause.

Author: Anthony Kennedy

The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed outside the state.

Author: Samuel Freeman Miller

The privileges and immunities of citizens of the United States are those that arise out of the nature and essential character of the national government, the provisions of the Constitution, or federal laws and treaties made in pursuance thereof. (The main holding of this case addressed the Privileges or Immunities Clause of the Fourteenth Amendment, rather than the Due Process Clause. However, it is significant for due process doctrine because it made the Due Process Clause the foundation for most Fourteenth Amendment claims involving fundamental rights. This function otherwise might have been served by the Privileges or Immunities Clause.)

Author: Roger Taney

An act of Congress that deprives a citizen of the United States of his liberty or property merely because he came or brought his property into a particular territory of the United States could hardly be dignified with the name of due process of law.

The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.

Author: John Paul Stevens

Vagueness may invalidate a criminal law if it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits, or if it authorizes or encourages arbitrary and discriminatory enforcement.

Author: William Rehnquist

A “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. Thus, a state law banning physician-assisted suicide does not violate due process.

Author: Anthony Kennedy , David Souter , Sandra Day O’Connor

An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

The Constitution does not forbid a state from requiring that evidence of an incompetent person's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence.

Coercive police activity is a necessary predicate to finding that a suspect's confession is not voluntary within the meaning of the Due Process Clause. More generally, the sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.

Author: Byron White

While the legislature may elect not to confer a property interest in public employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.

A due process violation does not arise from the unauthorized failure of state agents to follow established state procedure when the state provides an adequate post-deprivation remedy.

Author: Lewis Powell

When the government intrudes on choices concerning family living arrangements, the usual deference to the legislature is inappropriate, and a court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. More generally, appropriate limits on substantive due process come not from drawing arbitrary lines, but from careful respect for the teachings of history and solid recognition of the basic values that underlie our society.

The Due Process Clause does not require notice and a hearing prior to imposition of corporal punishment in public schools as that practice is authorized and limited by the common law.

Identifying the specific dictates of due process generally requires considering three factors: the private interest that will be affected by the official action; the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (An evidentiary hearing is not required prior to the termination of Social Security disability payments.)

Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause.

Strict judicial scrutiny is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. (Poverty is not a suspect class, and education is not a fundamental right.)

Author: Harry Blackmun

The Due Process Clause protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Although the state cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a compelling point at various stages of the woman's approach to term.

Author: Potter Stewart

The Fourteenth Amendment does not require an opportunity for a hearing prior to the non-renewal of a non-tenured state teacher's contract unless they can show that the non-renewal deprived them of an interest in liberty, or that they had a property interest in continued employment, despite the lack of tenure or a formal contract.

From the standpoint of due process, it is immaterial that a deprivation of property may be temporary and non-final.

Author: William Brennan

A pre-termination evidentiary hearing is necessary to provide a recipient of welfare benefits with procedural due process. The interest of an eligible recipient in the uninterrupted receipt of public assistance, coupled with the state's interest in not erroneously terminating their payments, clearly outweighs the state's competing concern to prevent any increase in its fiscal and administrative burdens.

Author: Earl Warren

A statutory scheme to prevent marriages between persons solely on the basis of racial classifications violates the Fourteenth Amendment.

Author: William O. Douglas

A state law forbidding the use of contraceptives violates the right of marital privacy, which is within the penumbra of specific guarantees of the Bill of Rights.

Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Author: John Marshall Harlan II

Particularly when dealing with a withholding of a non-contractual benefit under a social welfare program, the Due Process Clause interposes a bar only if the statute manifests a patently arbitrary classification, utterly lacking rational justification.

The Due Process Clause no longer should be used to strike down state laws regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.

Author: Felix Frankfurter

Involuntary verbal confessions are inadmissible in a criminal trial under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community's sense of fair play and decency.

Author: Robert H. Jackson

A fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Author: Harlan Fiske Stone

Regulatory legislation affecting ordinary commercial transactions is not unconstitutional unless it is of such a character as to preclude the assumption that the law rests on a rational basis within the knowledge and experience of the legislature. (Footnote 4 laid the foundation for heightened scrutiny in certain situations involving fundamental rights, the political process, and racial, national, or religious minorities.)

Author: Charles Evans Hughes

A restraint or regulation of the liberty to contract is due process if it is reasonable in relation to its subject and adopted for the protection of the community against evils menacing the health, safety, morals, and welfare of the people. Also, in dealing with the relation of employer and employed, the legislature has a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to ensure wholesome conditions of work and freedom from oppression.

Author: Owen Josephus Roberts

The Due Process Clause conditions the exertion of regulatory power by requiring that the end shall be accomplished by methods consistent with due process, that the regulation shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.

Author: George Sutherland

The right of the accused, at least in a capital case, to have the aid of counsel for their defense is one of the fundamental rights guaranteed by the Due Process Clause of the Fourteenth Amendment. This includes the right to have sufficient time to advise with counsel and prepare a defense.

Author: Oliver Wendell Holmes, Jr.

A state may provide for the sexual sterilization of inmates of institutions supported by the state who are found to be afflicted with a hereditary form of insanity or imbecility.

Author: James Clark McReynolds

The fundamental theory of liberty on which all governments in the U.S. rest excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.

A state law forbidding the teaching of any modern language other than English to a child who has not successfully passed the eighth grade invades the liberty guaranteed by the Fourteenth Amendment.

A trial for murder in a state court in which the accused are hurried to conviction under mob domination without regard for their rights is without due process and void.

Legislation fixing hours or conditions of work may properly take into account the physical differences between men and women, but the doctrine that women of mature age require (or may be subjected to) restrictions on their liberty of contract that could not lawfully be imposed on men in similar circumstances must be rejected.

Author: David Josiah Brewer

The regulation of the working hours of women falls within the police power of the state, and a statute directed exclusively to such regulation does not conflict with the Due Process or Equal Protection Clauses.

Author: John Marshall Harlan

It is not within the power of Congress to make it a criminal offense against the United States for a carrier engaged in interstate commerce to discharge an employee simply because of their membership in a labor organization. A provision to that effect is an invasion of personal liberty and the right of property and is unenforceable under the Due Process Clause.

Author: Rufus Wheeler Peckham

The general right to make a contract in relation to one's business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the state in the legitimate exercise of its police power.

A judgment of a state court, even if authorized by statute, whereby private property is taken for public use without compensation made or secured to the owner, is wanting in the due process of law required by the Fourteenth Amendment.

In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, must be embraced the right to make all proper contracts in relation to it.

Author: Joseph Bradley

It is state action of a particular character that is prohibited by the Fourteenth Amendment. Individual invasion of individual rights is not the subject matter of the amendment.

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The first amendment, interpretation & debate, the fourteenth amendment due process clause, matters of debate, common interpretation, substantive due process: text, history, experience, not whether but how: discerning new constitutional freedoms.

by Nathan S. Chapman

Associate Professor of Law at the Univeristy of Georgia School of Law

by Kenji Yoshino

Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and the Director of the Center for Diversity, Inclusion, and Belonging

The Due Process Clause of the Fourteenth Amendment is the source of an array of constitutional rights, including many of our most cherished—and most controversial. Consider the following rights that the Clause guarantees against the states:

• procedural protections, such as notice and a hearing before termination of entitlements such as publicly funded medical insurance;
• individual rights listed in the Bill of Rights, including freedom of speech, free exercise of religion, the right to bear arms, and a variety of criminal procedure protections;
• fundamental rights that are not specifically enumerated elsewhere in the Constitution, including the right to marry, the right to use contraception, and the right to abortion.

The Due Process Clause of the Fourteenth Amendment echoes that of the Fifth Amendment. The Fifth Amendment, however, applies only against the federal government. After the Civil War, Congress adopted a number of measures to protect individual rights from interference by the states. Among them was the Fourteenth Amendment, which prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”

When it was adopted, the Clause was understood to mean that the government could deprive a person of rights only according to law applied by a court. Yet since then, the Supreme Court has elaborated significantly on this core understanding. As the examples above suggest, the rights protected under the Fourteenth Amendment can be understood in three categories: (1) “procedural due process;” (2) the individual rights listed in the Bill of Rights, “incorporated” against the states; and (3) “substantive due process.”

Procedural Due Process

“Procedural due process” concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property. The key questions are: What procedures satisfy due process? And what constitutes “life, liberty, or property”?

Historically, due process ordinarily entailed a jury trial. The jury determined the facts and the judge enforced the law. In past two centuries, however, states have developed a variety of institutions and procedures for adjudicating disputes. Making room for these innovations, the Court has determined that due process requires, at a minimum: (1) notice; (2) an opportunity to be heard; and (3) an impartial tribunal. Mullane v. Central Hanover Bank (1950).

With regard to the meaning of “life, liberty, and property,” perhaps the most notable development is the Court’s expansion of the notion of property beyond real or personal property. In the 1970 case of Goldberg v. Kelly , the Court found that some governmental benefits—in that case, welfare benefits—amount to “property” with due process protections. Courts evaluate the procedure for depriving someone of a “new property” right by considering: (1) the nature of the property right; (2) the adequacy of the procedure compared to other procedures; and (3) the burdens that other procedures would impose on the state. Mathews v. Eldridge (1976).

“Incorporation” of the Bill of Rights Against the States

The Bill of Rights—comprised of the first ten amendments to the Constitution—originally applied only to the federal government. Barron v. Baltimore (1833). Those who sought to protect their rights from state governments had to rely on state constitutions and laws.

One of the purposes of the Fourteenth Amendment was to provide federal protection of individual rights against the states. Early on, however, the Supreme Court foreclosed the Fourteenth Amendment Privileges or Immunities Clause as a source of robust individual rights against the states. The Slaughter-House Cases (1873). Since then, the Court has held that the Due Process Clause “incorporates” many—but not all—of the individual protections of the Bill of Rights against the states. If a provision of the Bill of Rights is “incorporated” against the states, this means that the state governments, as well as the federal government, are required to abide by it. If a right is not “incorporated” against the states, it applies only to the federal government.

A celebrated debate about incorporation occurred between two factions of the Supreme Court: one side believed that all of the rights should be incorporated wholesale, and the other believed that only certain rights could be asserted against the states. While the partial incorporation faction prevailed, its victory rang somewhat hollow). As a practical matter, almost all the rights in the Bill of Rights have been incorporated against the states. The exceptions are the Third Amendment’s restriction on quartering soldiers in private homes, the Fifth Amendment’s right to a grand jury trial, the Seventh Amendment’s right to jury trial in civil cases, and the Eighth Amendment’s prohibition on excessive fines.

Substantive Due Process

The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given.

The Court’s decision to protect unenumerated rights through the Due Process Clause is a little puzzling. The idea of unenumerated rights is not strange—the Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.” The most natural textual source for those rights, however, is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the “privileges and immunities” of citizenship. When The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.

The “substantive due process” jurisprudence has been among the most controversial areas of Supreme Court adjudication. The concern is that five unelected Justices of the Supreme Court can impose their policy preferences on the nation, given that, by definition, unenumerated rights do not flow directly from the text of the Constitution.

In the early decades of the twentieth century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers on the ground that they violated those workers’ “freedom of contract,” even though this freedom is not specifically guaranteed in the Constitution. The 1905 case of Lochner v. New York is a symbol of this “economic substantive due process,” and is now widely reviled as an instance of judicial activism. When the Court repudiated Lochner in 1937, the Justices signaled that they would tread carefully in the area of unenumerated rights. West Coast Hotel Co. v. Parrish (1937).

Substantive due process, however, had a renaissance in the mid-twentieth century. In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their “right to privacy.” Griswold v. Connecticut . Like the “freedom of contract,” the “right to privacy” is not explicitly guaranteed in the Constitution. However, the Court found that unlike the “freedom of contract,” the “right to privacy” may be inferred from the penumbras—or shadowy edges—of rights that are enumerated, such as the First Amendment’s right to assembly, the Third Amendment’s right to be free from quartering soldiers during peacetime, and the Fourth Amendment’s right to be free from unreasonable searches of the home. The “penumbra” theory allowed the Court to reinvigorate substantive due process jurisprudence.

In the wake of Griswold , the Court expanded substantive due process jurisprudence to protect a panoply of liberties, including the right of interracial couples to marry (1967), the right of unmarried individuals to use contraception (1972), the right to abortion (1973), the right to engage in intimate sexual conduct (2003), and the right of same-sex couples to marry (2015). The Court has also declined to extend substantive due process to some rights, such as the right to physician-assisted suicide (1997).

The proper methodology for determining which rights should be protected under substantive due process has been hotly contested. In 1961, Justice Harlan wrote an influential dissent in Poe v. Ullman , maintaining that the project of discerning such rights “has not been reduced to any formula,” but must be left to case-by-case adjudication. In 1997, the Court suggested an alternative methodology that was more restrictive: such rights would need to be “carefully descri[bed]” and, under that description, “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997). However, in recognizing a right to same-sex marriage in 2015, the Court not only limited that methodology, but also positively cited the Poe dissent. Obergefell v. Hodges . The Court’s approach in future cases remains unclear.

The most controversial due process doctrine is “substantive due process.” The doctrine has little support in the text and history of the Constitution, and it has long ignited political debate. For good reason: substantive due process replaces popular sovereignty with the views of unelected Supreme Court justices.

The Constitution itself is ordinarily the source of constitutional rights. Its provisions are the fruit of political debate and compromise, the clearest evidence of the People’s will. Not all constitutional provisions, of course, are perfectly clear. To understand vague terms, courts usually examine prior history, other constitutional provisions, and subsequent practice. None of these offer strong support for the rights protected by substantive due process.

First, those rights find little support in the constitutional text. The Due Process Clause guarantees “due process of law” before the government may deprive someone of “life, liberty, or property.” In other words, the Clause does not prohibit the government from depriving someone of “substantive” rights such as life, liberty, or property; it simply requires that the government follow the law. One scholar has therefore described “substantive due process” as an oxymoron, akin to “green pastel redness.”

Nor does the Bill of Rights, incorporated into the Fourteenth Amendment Due Process Clause, provide textual support for substantive due process. The most that can be said is that the doctrine arises from the “penumbras” or “emanations” of the “specific guarantees in the Bill of Rights” – not from those “specific guarantees” themselves. Griswold v. Connecticut (1965).

One might try to solve this textual deficit by locating substantive due process rights in another provision of the Fourteenth Amendment, such as the Privilege or Immunities Clause or the Equal Protection Clause. But this would raise another set of textual and historical difficulties.

Second, history provides little support for substantive due process. Until the late nineteenth century, no court held that due process protected substantive rights. The first Supreme Court opinion to even suggest this was The Dred Scott Case (1857). Scott, a slave, argued that he was free because his owner had taken him to territory where slavery was banned. Chief Justice Taney notoriously replied that declaring Scott to be free would deprive his owner of property without due process of law. The Republicans who enacted the Fourteenth Amendment meant to repudiate that notion, not to apply it against the states. Aside from The Dred Scott Case , there is little historical evidence that courts or Congress thought due process limited the substance of legislation.

Third, substantive due process has consistently generated political controversy. The Court first applied the doctrine at the turn of the twentieth century to invalidate state labor and wage regulations in the name of “freedom of contract,” a notion mentioned nowhere in the Constitution. Those who opposed the labor union movement supported the doctrine. But it became increasingly unpopular with progressives and mainstream Americans during the Depression, when the Court used it to thwart New Deal regulations.

The national dispute ended in a showdown. President Franklin Roosevelt pressured the Supreme Court to abandon substantive due process. In response, a pivotal justice changed sides, and the Court ultimately repudiated the doctrine. This episode illustrates how hard it is to change the Court’s constitutional jurisprudence – even when it flies in the face of the text approved by the People.

The contemporary version of substantive due process has likewise upended democratic politics. The most obvious example is abortion. By putting the issue beyond the reach of ordinary politics, in Roe v. Wade (1973), the Court precipitated the culture war, the re-alignment of the political parties, and the politicization of Supreme Court appointments.

Some defend substantive due process on the ground that it protects fundamental rights. But Americans disagree about what should count as a fundamental right, and many think the fairest way to resolve that disagreement is through political debate. Such debates are not futile; they have resulted in a number of amendments that do expressly protect fundamental rights, such as the freedoms of speech, assembly, and religion, and the right to vote.

Perhaps the best argument for maintaining substantive due process is that the Court has a duty to follow precedent. On one hand, sometimes people rely on past decisions; enforcing those decisions allows people to plan their lives and move on. On the other hand, the Court’s chief duty is to enforce the law enacted by the People, not to perpetuate doctrines of its own making.

Given substantive due process’s sordid history, it is unsurprising that justices continue to disagree about it. Some current justices would extend it; some would scale it back; and others would drop it entirely. Regardless of the Court’s future approach, one thing seems certain: substantive due process will continue to foment political controversy.

Incorporation of the Bill of Rights

By contrast, the incorporation of the Bill of Rights against the states—applying some of its provision to state governments as well as the federal government—is far less controversial. Although the text and history of the Due Process Clause may not support the incorporation of every provision of the Bill of Rights, between the Due Process Clause and the other clauses of the Fourteenth Amendment, incorporation is on solid ground.

Some continue to urge the Court to apply all of the provisions of the Bill of Rights against the states. Conversely, others argue that applying some provisions to the states was a mistake.

In particular, some scholars and judges argue that it makes little sense to apply the Establishment Clause of the First Amendment to the states. The Establishment Clause originally prohibited Congress not only from establishing a federal religion, but also from interfering in a state establishment. In part, then, the Clause protected state establishments; it didn’t prohibit them.

Despite this history, the Court is unlikely to reverse course. Prohibiting state religious establishments has broad political support, and it reinforces the religious liberty secured against the states by the incorporation of the Free Exercise Clause.

One of the most vibrant and contentious debates relating to the Due Process Clause concerns the “substantive due process” jurisprudence. Under this area of law, the Supreme Court has protected rights not specifically listed in the Constitution. Currently, such unenumerated rights include the right to direct the education and upbringing of one’s children, the right to procreate, the right to bodily integrity, the right to use contraception, the right to marry, the right to abortion, and the right to sexual intimacy. For well over a century, the Court has grappled with how to discern such rights. This controversy continues to this day, and the Court’s 2015 decision in this area— Obergefell v. Hodges —breaks new ground in that storied debate.

The debate about whether the Court should be in the business of recognizing such rights has raised legitimate concerns on both sides. On the one hand, when the Court strikes down a state law (for example, a prohibition on same sex marriages) because it violates a right that is not specifically mentioned in the Constitution, the Court runs the risk of facing amplified charges of “judicial activism.” It is one thing when the Court strikes down a legislative enactment based on some specific right spelled out in the Constitution. It is quite another thing when it invalidates such an enactment based on a right that has no textual basis within the Constitution. The fear is that five Justices on the United States Supreme Court will make law for the entire nation based solely on their personal policy preferences, given that they have no text to guide or constrain them. As the Court itself once said, it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights (1992).

On the other hand, the idea that the Constitution only protects rights that are specifically mentioned is also deeply problematic. Even the staunchest textualist must account for the Ninth Amendment, which states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparate others retained by the people.” As such, the Amendment provides a textual warrant for finding textually unenumerated rights in the Constitution. The ethos behind the Ninth Amendment also seems sound. No Constitution could purport to enumerate every single right that a people might deem fundamental. On natural law or other grounds, most individuals would probably bristle at the idea that they lacked a constitutional right to marry. Finally, as a purely doctrinal matter, over a century of precedent guarantees such unenumerated rights under the Fourteenth Amendment’s Due Process Clause. Few if any Justices on the current Court appear to take the position that all the rights listed above should be rolled back entirely.

The live debate, then, is not whether to recognize unenumerated rights, but how to do so. While a full discussion of the methodological debate cannot be elaborated here, we can at least contrast two major approaches.

In 1997, the Court issued a landmark decision that set forth a more restrictive methodology. The issue in Washington v. Glucksberg was whether an individual had the right to physician-assisted suicide. The Court rejected the existence of any such right. In doing so, it articulated a general two-part test for how such rights should be found. First, it observed that the right had to be “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.” Second, it required a “careful description” of the liberty interest at issue. The first restriction—that a right must be “deeply rooted” in history–ensured that due process would be, as one scholar has put it, “backward-looking” in order to “safeguard[] against novel developments brought about by temporary majorities who are insufficiently sensitive to the claims of history.” The second restriction—a “careful description” of the liberty interest at stake—ensured that jurists would not be able to claim that a novel right was “deeply rooted” in history by describing the right at  a higher level of generality. For instance, arguing that while physician-assisted suicide had not been traditionally protected, the “right to control one’s own body” was. (As this example suggests, the level of generality at which one casts a particular right will often determine whether a tradition supports it.)

In 2015, however, Obergefell v. Hodges dramatically changed the substantive due process methodology. Obergefell will probably be best known—now and in the future—as the case that held that same-sex couples had the right to marry. However, its more overarching contribution to constitutional law may well lie in its seeming wholesale revision of the Glucksberg test. After all, under Glucksberg , it was clear that same-sex marriage was not “deeply rooted in this Nation’s traditions and history.” And if the right had to be specifically described in order to be protected, then the “right to marry” is too general to protect the “right to same-sex marriage.”  So how did Obergefell reach its result?

The answer was, as Chief Justice Roberts noted in dissent, that Obergefell “effectively overrule[d]” Glucksberg . First, it put an end to the idea that the due process methodology was backward looking. Amplifying a comment he had made in a 2003 case, Justice Kennedy’s majority opinion observed that “[t]he nature of injustice is that we may not always see it in our own times.” He elaborated: “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the freedom of all persons to enjoy liberty as we learn its meaning.” Put differently, Justice Kennedy observed that the refusal of the Framers of the Fourteenth Amendment to specify which liberties were protected meant that they intended to leave the meaning of that concept to the judgment of subsequent generations. In doing so, he struck the shackles of history from the due process analysis.

Similarly, Obergefell also challenged—although less categorically—the notion that the Court had to offer a “careful description” of the right. Justice Kennedy observed that while the “careful description” methodology “may have been appropriate” for the right at issue in Glucksberg (physician-assisted suicide), “it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy.” He noted that when interracial couples or prisoners sought to marry, the Court did not construe the right as the right of interracial couples to marry or the right of prisoners to marry, but simply as the right to marry. He simply rejected the idea that the Court should not climb up the ladder of generality in analyzing the right presented. And while he explicitly declined to overrule Glucksberg on this point, he also did not offer a principled distinction between why the rights of marriage and intimacy might differ from other rights.

Obergefell represented a clear victory for those who believe, as many progressives do, in a more expansive vision of substantive due process jurisprudence. At the same time, it did not announce unlimited discretion for the judiciary in this area. Instead, it endorsed the approach taken in a canonical dissent by Justice Harlan in the 1961 case of Poe v. Ullman . The Poe dissent rejected any formulaic approach to substantive due process in favor of a more open-ended common law approach whereby courts addresses questions about fundamental rights case-by-case, striving in each decision to balance the Constitution’s respect for individual liberty and the demands of organized society. It remains to be seen what future rights such an approach might yield.

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US government and civics

Course: us government and civics   >   unit 3.

• The Fifth Amendment
• The Sixth Amendment
• Miranda v. Arizona

Due process and the rights of the accused: lesson overview

• Due process and the rights of the accused

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Introduction.

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment , ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures. Most of this article concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation

The Fifth Amendment's reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states; the Bill of Rights was interpreted to only apply against the federal government, given the debates surrounding its enactment and the language used elsewhere in the Constitution to limit State power. (see Barron v City of Baltimore (1833)). However, this changed after the enactment of the Fourteenth Amendment and a string of Supreme Court cases that began applying the same limitations on the states as the Bill of Rights. Initially, the Supreme Court only piecemeal added Bill of Rights protections against the States, such as in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897) when the court incorporated the Fifth Amendment's Takings Clause into the Fourteenth Amendment. The Court saw these protections as a  function of the Due Process Clause of the Fourteenth Amendment only, not because the Fourteenth Amendment made the Bill of Rights apply against the states. Later, in the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause "incorporated" most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is "incorporated" in the "due process" requirement of the Fourteenth Amendment, state and federal obligations are exactly the same. For more information on the incorporation doctrine, please see this Wex Article on the Incorporation Doctrine . 

Substantive due process

The words “due process” suggest a concern with procedure rather than substance, and that is how many—such as Justice Clarence Thomas, who wrote "the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness" —understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process—such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that "the Due Process Clause protected individuals from state legislation that infringed upon their ‘privileges and immunities’ under the federal Constitution” (see this Library of Congress Article:  https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/due-process-of-law.html ) 

Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one's children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues).

The promise of legality and fair procedure

Historically, the clause reflects the Magna Carta of Great Britain, King John's thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain's Seventeenth Century struggles for political and legal regularity, and the American colonies' strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that the government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause is often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, the government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn't say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”

How can we know whether process is due (what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If "due process" refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court's struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court held that only politics (the citizen's “power, immediate or remote, over those who make the rule”) controlled the state's action setting the level of taxes; but if the dispute was about a taxpayer's individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether. 

Distinguishing due process 

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn't govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver's licenses, government jobs, and welfare enrollment  are "rights" or a "privilege." An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected. Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, a state job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had "property" would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served "at will" — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was "due," constitutional “property” was no longer just what the common law called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen. Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly , a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient's benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

What procedures are due

Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney's help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court's basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge , tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The approach it defined has remained the Court's preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

• First, the private interest that will be affected by the official action;
• Second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
• Finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more likely to be able to find other "potential sources of temporary income" than a person who is arguably impoverished but provisionally denied welfare assistance. Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one's medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency's files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government's claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that "resources available for any particular program of social welfare are not unlimited." Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the "good-faith judgments" of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that constitute the procedure that is "due," the opinion emphasizes that each setting or program invites its own assessment. The only general statement that can be made is that persons holding interests protected by the due process clause are entitled to "some kind of hearing." Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made concretely and holistically. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context.

Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization. Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy. Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost. Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural "due process" claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual's position. The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of "due process" and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerat­ions (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

While there is no definitive list of the "required procedures" that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

• An unbiased tribunal.
• Notice of the proposed action and the grounds asserted for it.
• Opportunity to present reasons why the proposed action should not be taken.
• The right to present evidence, including the right to call witnesses.
• The right to know opposing evidence.
• The right to cross-examine adverse witnesses.
• A decision based exclusively on the evidence presented.
• Opportunity to be represented by counsel.
• Requirement that the tribunal prepare a record of the evidence presented.
• Requirement that the tribunal prepare written findings of fact and reasons for its decision.

This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a "due process" argument, roughly in order of their perceived importance.

The original text of this article was written and submitted by Peter Strauss

[Last updated in October of 2022 by the Wex Definitions Team ]

• the Constitution
• constitutional law
• wex articles
• constitution
• U.S. CONSTITUTION
• constitutional amendment
• SUBSTANTIVE DUE PROCESS
• PROCEDURAL DUE PROCESS

Legal Dictionary

The Law Dictionary for Everyone

Due Process

The Due Process Clause is included in both the Fifth and Fourteenth Amendments to the United States Constitution . The clause prohibits the government from depriving a person of their right to liberty or property without due process. This clause has helped the federal and state governments adopt fairness standards to ensure people’s rights are not violated. When the justice system fails to treat a person accused of a crime in a fair manner, this treatment violates the person’s rights to Due Process. To explore this concept, consider the following Due Process Clause definition.

Definition of Due Process Clause

• Clause included in the Fifth and Fourteenth Amendments to the United States Constitution ensuring that no person is deprived of his life, liberty, or property without due process of law.

Proposed in 1788, Fourteenth Amendment ratified to include Due Process in 1868.

Adoption of the Due Process Clause

The subject of Due Process dates back to 1215 when King John of England issued clause 39 of the Magna Carta. During his rule, King John promised his people that they would not be stripped of their basic human rights. This English rule set the standards for due process in the United States and other countries around the world. James Madison drafted the Due Process Clause in 1788, after New York asked Congress to consider adding “due process language” to the U.S. Constitution. Madison made some changes to the language recommended by New York, and Congress adopted the Bill of Rights as part of the Constitution in 1791. In 1868, the Fourteenth amendment was ratified to include a Due Process Clause.

Types of Protection Provided by Due Process

Though some laws in certain jurisdictions have slightly different interpretations of individual rights, they all prevent the government from harming a person without following the specified procedures of the law. This is known as “due process.” The Due Process Clause provides four basic areas of protection, all of which are overseen by the U.S. Supreme Court:

• Substantive due process
• Procedural due process
• Prohibition against vague laws
• As a means to incorporate the Bill of Rights

Substantive Due Process

Substantive Due Process pertains to those rights not listed specifically in the U.S. Constitution, but which are recognized as an important part of an individual’s liberty. Substantive due process is often related to areas such as voting, minorities, and the rights of children. When determining whether the government has violated a person’s substantive due process rights, the judicial system first determines whether the issue at hand was a fundamental right.

Procedural Due Process

Procedural due process protects individuals during governmental proceedings, whether they are civil or criminal. Procedural due process also pertains to parole hearings, governmental benefit hearings, and full criminal trials. The rights afforded in this section include, but are not limited to:

• The right to an unbiased trial
• The right to be given notice of the proposed trial and the reason for it
• The right of the individual to be aware of evidence against him
• The right to cross-examine witnesses for the opposition
• The right to present evidence and call witnesses
• The right to be represented by counsel

Prohibition Against Vague Laws

The Due Process Clause protects citizens against laws that are too vague for the average person to understand. If the laws are written in such a manner that an ordinary person cannot determine whether the conduct is expressly prohibited, or that a punishment can be rendered if they carry out the conduct, the court can determine the law to be “void for vagueness.” This prohibition against vague laws ensures that the laws are understandable and that ignorance cannot be used as a defense in criminal offenses.

Incorporating Protections into the Bill of Rights

The Bill of Rights was originally intended to apply only to the federal government , but the ratification of the Fourteenth Amendment placed prohibitions on the actions of individual states as well. As time went on, the Supreme Court made a number of rulings that certain state laws or policies violated protections guaranteed by the Bill of Rights, thus “incorporating” those protections, applying them to all U.S. citizens.

Related Legal Terms and Issues

• Fifth Amendment – The Fifth Amendment protects people from being tried for the same crime twice, and specifies that no person can be compelled to testify against himself.
• Seventh Amendment – The Seventh Amendment ensures an individual’s specific right to a fair trial.
• Fourteenth Amendment – The Fourteenth Amendment extends American citizenship to all people that are born or naturalized in the country.
• Ratify – To sign or give consent making something such as a law or Amendment officially valid.

Liberty, Equality and Due Process: Cases, Controversies, and Contexts in Constitutional Law

Ruthann Robson

Copyright Year: 2018

Last Update: 2019

Publisher: CALI's eLangdell® Press

Language: English

Formats Available

Conditions of use.

Learn more about reviews.

Reviewed by Melissa Randall, Instructor, Colorado State Board of Higher Education on 11/16/19

Professor Robson does an excellent job identifying and editing cases related to the current issues in Constitutional Law. While discussing some important historical cases and principles, her focus is on current legal standards and issues about... read more

Comprehensiveness rating: 5 see less

Professor Robson does an excellent job identifying and editing cases related to the current issues in Constitutional Law. While discussing some important historical cases and principles, her focus is on current legal standards and issues about which students will need and want to learn.

Content Accuracy rating: 5

Professor Robson's book is written as a law school case book. Her introductions to legal concepts are concise and as unbiased as possible given the hot button issues the cases address. She introduces the cases and poses reflection questions to encourage honest student dialogue around those issues.

Relevance/Longevity rating: 4

This book is subject to the dynamic nature of the evolving body of law. As soon as the courts announce opinions related to Constitutional rights, a case book will need to be updated. This is the unavoidable nature of law. However, this book is organized around legal principles in a way that should make updating the book relatively straightforward.

Clarity rating: 5

For a law textbook, this case book is very accessible to readers. The legal terminology is necessary and appropriate, especially when the precise meaning of the legal terms of art are at issue in the cases. It is clear that Professor Robson's goal is to help students understand the law, not to lose them in an avalanche of pedantic paragraphs.

Consistency rating: 5

Professor Robson's organization and presentation of concepts are consistent throughout the book.

Modularity rating: 5

The book is organized extremely well, especially given the complex legal principles in the cases. The book is organized by overarching legal concepts, with a brief introduction to the legal principles, followed by the relevant edited cases, and ending with homework/reflection questions. It is obvious that Professor Robson has devoted significant time thinking through how to present the information in modules for her students so that they can use the case book as their primary source for class preparation and discussions.

Organization/Structure/Flow rating: 5

The book follows a logical order of topics. After discussing federalism and judicial review, the book delves into the historical development of slavery and race issues. From there, the book starts to follow more thematic than chronological topics--equal protection in the context of different protected groups and evolving issues.

Interface rating: 4

This book focuses on the language of the court cases, along with written descriptions of them. As a result, there are not any interface issues regarding images and graphics. However, some of the edited cases may be challenging for students utilizing e-readers because of the density and formatting of the court cases.

Grammatical Errors rating: 4

For the length of the book, there are very few typos and grammatical errors. The main typo that I found affecting the meaning of the content is on page 149 in the discussion of Loving v. Virginia. There is a typo in the sentence regarding the year in which they pleaded guilty.

Cultural Relevance rating: 5

This case book discusses the equal protection of different protected classes under the US Constitution, with a final chapter discussing some state constitutional provisions. Therefore, it has extensive examples of individuals from different groups within our society. The tone of Professor Robson's writing is culturally sensitive and unbiased, even when the US Supreme Court Justices are not.

This book is written for law students who are studying Constitutional Law and, therefore, utilizes a traditional case book format. A case book may not fit the needs of instructors outside of the law school environment. However, Professor Robson's introductions and summaries of key legal principles may be useful in undergraduate law classes, and her editing of the court opinions is extremely well done. As a result, the edited cases may be useful for instructors to use when preparing for their classes, even if they do not assign the book to their students.

Table of Contents

• Chapter One: An Introduction to Constitutional Law and The Issue of State Action
• Chapter Two: Introduction To Constitutional Interpretation and Judicial Review
• Chapter Three: Slavery and Racial Equality
• Chapter Four: Race and Equal Protection
• Chapter Five: Nonracial Classifications and Equal Protection
• Chapter Six: Fundamental Rights and Equal Protection
• Chapter Seven: The Privileges or Immunities Clause
• Chapter Eight: Incorporation and Fundamental Rights
• Chapter Nine: The Second Amendment
• Chapter Ten: Unenumerated Rights and Due Process
• Chapter Eleven: Liberty, Due Process, and Equal Protection
• Chapter Twelve: State Constitutions

Ancillary Material

• Ancillary materials are available by contacting the author or publisher .

About the Book

This Casebook is intended to be used in a course which concentrates on Constitutional Rights and centers the Fourteenth Amendment. It can be used in a first year Law School course with a title such as “Liberty, Equality, and Due Process,” as it is at CUNY School of Law, an upper division Constitutional Rights course, or an advanced undergraduate course focusing on constitutional rights, especially equality and due process.

The Casebook begins with the threshold issue of “state action” which orients students to a basic but often under-taught principle of constitutional law. The Casebook then considers judicial review and constitutional interpretation. Chapters 3-6 center on equality, including slavery before the Reconstruction Amendments, equal protection for racial, gender, and other classifications, affirmative action, and fundamental rights in equal protection doctrine. Chapters 7-9 are shorter chapters that consider the Privileges or Immunities Clause, Incorporation of Bill of Rights provisions to the states, and the Second Amendment. Chapter 10 focuses on substantive due process, with Chapter 11 treating the “synergy” between due process and equal protection regarding fundamental rights. The brief last Chapter, Chapter 12, includes materials on state constitutional rights, which can be omitted or integrated into previous subjects.

About the Contributors

Ruthann Robson is Professor of Law and University Distinguished Professor at the City University of New York (CUNY) School of Law.

She is the author of FIRST AMENDMENT : CASES , CONTROVERSIES , AND CONTEXTS (eLangdell).

Her other books include DRESSING CONSTITUTIONALLY: HIERARCHY, SEXUALITY, AND DEMOCRACY (2013); SAPPHO GOES TO LAW SCHOOL (1998); GAY MEN, LESBIANS, AND THE LAW (1996); and LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW (1992).

She is also the editor of the three volume set, INTERNATIONAL LIBRARY OF ESSAYS IN SEXUALITY & LAW (2011). She is one of two editors of the Constitutional Law Professors Blog and a frequent commentator on constitutional and sexuality issues.

She is one of the 26 professors selected for inclusion in WHAT THE BEST LAW TEACHERS DO (Harvard University Press, 2013) .

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5 Equal Justice and Due Process of Law

• Published: September 2003
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The principles of equality and due process lie at the heart of the rule of law, when interpreted as an ideal of constitutionalism, based on each citizen's equal dignity. The meaning of the rule of law cannot be confined to matters of procedure, narrowly interpreted: ‘procedure’ is merely an aspect of ‘process’, whose integrity preserves the fundamental right of equality, or equal citizenship. Since due process supplements fair procedures by insisting on the application, by public officials, of appropriate criteria of decision, it imposes substantive limitations on their power. Legislative and administrative judgments alike must be made within a constitutional framework that identifies, and enforces, explicit and widely acknowledged precepts of justice. Conformity to these precepts ensures a genuine —substantive —equality of all before a law that serves a coherent (if capacious and adaptable) conception of the common good. This chapter discusses administrative justice and constitutional principle, judicial functions and executive agencies, and legislative classifications and the definition of ‘act of attainder’.

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Procedure Established by Law vs Due Process of Law

Last updated on October 9, 2023 by Alex Andrews George

In this post, we shall see the meaning of two important terms often cited in Supreme Court Judgments ie. Procedure Established by Law and Due Process of Law.

“Procedure Established by Law” and “Due Process of Law” are two legal principles that relate to the protection of individual rights and the application of law in legal proceedings. While these principles may seem similar, they have distinct implications and are used in different legal systems around the world.

The former is Indian constitutional doctrine and the latter is American, but now the boundaries are very narrow.

Let’s start our discussion with Article 21 of the Indian Constitution. What does it say?

Also read: Sealed Cover Jurisprudence

Table of Contents

Article 21 in The Constitution Of India

Protection of life and personal liberty:  No person shall be deprived of his life or personal liberty except according to the procedure established by law.

Article 21 of the Indian Constitution uses the term “Procedure Established by Law,” which means that no person shall be deprived of their life or personal liberty except according to a procedure established by law.

This implies that if the government follows the prescribed legal procedures while depriving a person of their life or liberty, it is constitutionally valid, irrespective of whether the procedure is fair, just, or reasonable.

As we have seen, the term “procedure established by law” is used directly in the Indian constitution . Due Process of Law has much wider significance, but it is not explicitly mentioned in the Indian Constitution. The due process doctrine is followed in the United States of America, and Indian constitutional framers purposefully left that out. But in most of the recent judgments of the supreme court, the due process aspect is coming into the picture again. Let’s see the difference in detail.

Case 1: Procedure Established by Law

“Procedure Established by Law” is a principle that is primarily associated with legal systems based on common law, including India. In countries following this principle, the government enacts laws, and individuals must comply with those laws.

The government has the authority to set the procedures and processes for implementing and enforcing these laws. Under this principle, as long as the government follows the procedures it has established, its actions are considered valid, even if they may appear unfair or unjust to individuals.

It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the  procedure established by law.

So, if Parliament passes a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of that law.

This doctrine has a major flaw. What is it?

It does not seek whether the laws made by Parliament are fair, just, and not arbitrary.

“Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to the life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of the due process of law.

Case 2: Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also sees if the law made is fair, just, and not arbitrary.

If SC finds that any law is not fair, it will declare it null and void. This doctrine provides for a more fair treatment of individual rights.

Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person, and laws that the state enacts must conform to the laws of the land like – fairness, fundamental rights, liberty, etc. It also gives the judiciary to access fundamental fairness, justice, and liberty of any legislation.

“Due Process of Law” is a legal principle commonly found in legal systems based on the common law tradition, particularly in countries like the United States.

• Under this principle, the government must follow fair and just procedures before depriving an individual of life, liberty, or property. Due process ensures that individuals have the right to be heard, to present evidence, and to be treated fairly before any government action is taken against them.

The difference in layman’s terms is as below:  Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary.

Also read: Must Know Articles of Indian Constitution

Extra Articles worth reading

• Of constitutional ‘due process’: The Hindu – Are we shifting from original constitutional norms?
• On MCOCA: Tehelka – A Law Inconsistent With The Idea Of India .
• Due Process of law: Manupatra .

History of Due Process of Law

Due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England but did become incorporated into the Constitution of the United States.

Unlike “Procedure Established by Law,” “Due Process of Law” requires the government to respect certain fundamental rights and treat individuals fairly and impartially. It places a higher emphasis on individual rights and procedural safeguards.

In the United States, the Fifth and Fourteenth Amendments of the U.S. Constitution include the Due Process Clause, which prohibits the government from depriving any person of life, liberty, or property without due process of law.

Procedure established by law: Maneka Gandhi vs Union of India case (1978)

In India, a liberal interpretation is made by the judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ synonymous with ‘Due process’ when it comes to protecting individual rights.

In the Maneka Gandhi vs Union of India case (1978) SC held that – the  ‘ procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law clause in America.

“Procedure Established by Law” focuses on the formal adherence to legal procedures set by the government, while “Due Process of Law” emphasizes the protection of individual rights and fairness in the application of law and legal proceedings.

The choice between these principles has significant implications for the protection of individual rights in a legal system.

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Reader Interactions

January 28, 2014 at 11:49 pm

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January 29, 2014 at 9:59 pm

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May 23, 2015 at 7:20 am

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August 21, 2015 at 9:16 pm

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October 28, 2015 at 5:03 am

Thanks for describing clear views

December 25, 2015 at 3:08 am

In order to surmount the uncertainty, which would arise because of broadening of scope of rights like in America, Indian constitution makers restricted it to procedure established by law.16 The phrase “procedure established by law” seems to be borrowed from article 31 of the Japanese Constitution, which gives the legislature the final word.

August 24, 2023 at 6:28 pm

Clear and to the point explanation, thank you Sir!

December 25, 2015 at 3:10 am

https://www.frontline.in/static/html/fl2905/stories/20120323290507900.htm

December 25, 2015 at 3:12 am

tell me the difference between Due Process of Law and Procedure established by Law? Me: Sir, Procedure Established by Law is any procedure which may be established by a duly enacted legislation or made by the administration while Due process of Law involves the principles of natural justice. Here the Law itself have to be just and can be questioned in the Courts. CM: When this Due Process did enter our constitution? Me: Sir, In Menaka Gandhi’s case in 1978. CM: Tell me what happened in the Menka Gandhi case? Me: Sir, the passport of Menaka Gandhi was impounded by the airport authorities and proper hearing was not given to her. The Supreme Court held that the principles of natural jutice have not been followed and struck down the decision of the authorities.

January 17, 2016 at 9:34 am

Nice explanation sir, thank you

June 12, 2016 at 3:45 pm

Very informative

August 26, 2016 at 9:46 pm

This website is so good… It not only provides knowlege about imp topics but that too in a very clear and understable way… I find this website soooooo useful…. Thank u ???

November 2, 2017 at 8:31 am

Clearly explained, in a very brief manner.!👍 Thank you.

December 19, 2018 at 7:29 pm

Judicial review resemble the due procedure of law as it makes Indian parliament not soverign.

January 7, 2019 at 12:46 am

Thanks a lot sir,,,,,

February 11, 2019 at 6:51 pm

You’ve just copied it from quota and pasted it here without giving due credits to the author. This act of yours amounts to theft of creative work, will gradually lower the standard of UPSC preparation. Make sure not to steal somebody’s work instead produce your own.

February 11, 2019 at 7:03 pm

Hi Manonmani,

Being an aspiring civil servant, you should be able to see both sides. Why didn’t you think if it is actually the reverse?

In fact, it is.

We have written about “Procedure Established by Law vs Due Process of Law” in 2014, and many copied the same from ClearIAS.com and posted in Quora in 2015, 2016, and 2017 – without giving any credit to us. Just do a Google Search “Procedure Established by Law vs Due Process of Law” and notice the dates coming up.

PS: Hope you meant ‘Quora’ when you typed ‘Quota’.

February 11, 2019 at 8:44 pm

When I typed ‘Procedure established by Law’ on Google first the article from Quora appeared. After reading that I went through the same worded article here. That’s what I was enraged. And the autocorrection option in my keypad automatically tries to correct the words. I remember of typing ‘Quora’ but it later changed to quota that I overlooked.

February 25, 2019 at 3:11 pm

Galti se sikh lo dear.. bina sabuto ke kisi pr iljamat nai lagate.

April 27, 2019 at 12:34 pm

really nice explained. thank u so much

July 25, 2019 at 5:29 pm

Good explanation,sir

July 18, 2020 at 1:13 pm

Do we accept procedure established by law from Japan??

April 21, 2021 at 4:34 am

Sir, based on the Article 32 and Article 226 the person can go to the court if his and her rights are getting violated. Isn’t that solve this flaw?

May 7, 2021 at 10:20 am

December 13, 2022 at 6:18 pm

really appreciate you.

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Home > Journals > WMBORJ > Vol. 24 (2015-2016) > Iss. 4 (2016)

William & Mary Bill of Rights Journal

Matthew J. Steilen

Due Process as Choice of Law: A Study in the History of a Judicial Doctrine

This Article argues that procedural due process can be understood as a choice of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law—personal notice, oral hearing, neutral judge, and jury trial—and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It begins with a reading of due process cases in state courts before the Civil War, and argues that, in many of these cases, courts were asked to negotiate the institutional conflict between themselves and various summary bodies, including non-common-law courts, magistrates, commissioners, corporations, and even legislatures, which played a significant role in the administration of government. The Article then reconstructs federal due process cases in the period from 1870 to 1915, arguing that the Supreme Court limited the use of summary procedures by testing their fit with the so-called public interest, or public right, ostensibly at issue. Finally, the Article turns to the due process “revolution” and “counter-revolution,” showing how the traditional choice-of-law framework broke down, resulting in the Mathews decision.

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A Case Study in Due Process

The specific reasons for his conversion to Socialism and then to Trotskyism do not emerge clearly in his autobiography, The Case of the Legless Veteran . But it seems highly improbable that they were ideological; neither in his book, nor in his recorded testimony before any of the hearing boards he has faced in recent years, does Kutcher give any impression of familiarity with or even interest in the fine shadings of doctrine which distinguish Trotskyites from all other men, and the Socialist Workers party, to which he belongs, from all other Trotskyites. On the whole, Kutcher seems far more likely to have been motivated by personal loyalties; one gets the impression that these have, in his case, always been rather strong.

So far, his life was essentially uneventful. But it diverged from the pattern of millions of his contemporaries, who, while they had more or less similar experiences during the depression, did not become Trotskyites. Those who did never exceeded a few thousand in all. Except to the Communist party, which customarily cited them to the Dies Committee and similar bodies as proper objects of investigation, the Trotskyites hardly seemed a major menace. Kutcher’s Trotskyism seems to have supplied him with a social life of sorts, to have caused him to join a certain number of picket lines and distribute a good many leaflets, and to have filled many of his leisure hours with the addressing of envelopes. Essentially a shy and almost timid man, he appears to have done little if any direct proselytizing for his cause.

Then, on January 21, 1941, he was drafted into the United States Army. As a Trotskyite, he was opposed to the war; he was also theoretically committed to trying to win other soldiers over to the Trotskyite point of view. In fact, according to his own testimony and that of fellow soldiers, he did nothing of the kind. Instead, he tried to become a good soldier, obeyed orders, and on November 9, 1943, was seriously wounded by a mortar shell near San Pietro in Italy. On the same evening, both his legs were amputated. Then came almost two years of treatment and training in the use of artificial legs. Finally, on September 27, 1945, he was discharged from the army.

He received a disability pension. This, together with the small Social Security pay- received by his parents (and the fact that they lived in a low-rent public housing development), just about met the family’s expenses on a very modest standard. The rising cost of living placed Kutcher under increasing financial pressure; even more important, he wanted the feeling of usefulness and belonging that a job would give. He therefore took and passed a civil service examination, and in August 1946 he was appointed a clerk in the Newark office of the Veterans Administration.

Of this job, Kutcher writes:

My pay started at $38 a week, rising to $39 a year later. Veterans who wanted to get a loan under the GI Bill to buy a house or start a business had to come to the Loan Guarantee Division for a certificate of eligibility. I entered their claims in a register, stamped their discharge papers, and issued the certificate which was typed up by one of the girls in our office. My efficiency rating in this job was “excellent.” After more than a year, I was transferred to the Vocational and Rehabilitation Division where I handled contracts made between employers and veterans getting on-the-job training. I recorded information about the amount and frequency of wage increases due the veterans, checking to make sure the wage progressions were correct. My rating in this job was “very good.” Toward the end of my second year Congress passed a bill granting pay increases of about $6 a week to all civil service employees. . . . For the first time in my life, I had a sense of security. For the first time I had a real job. I was filling it satisfactorily, and although I did not magnify its importance I was making a slight contribution to the welfare of other veterans. But above all was the realization that I was not socially useless after all, that despite my disability I could hold a job like other people, that in certain ways I was even better off than before I was drafted! All in all, this was the happiest time of my life since my schooldays. . . . I remained a member of the party, interested as before in social and political developments, but not as active; I still took minutes at meetings, but had no time now to help in the clerical work. . . . And then on August 16, 1948, came a bombshell more stunning than any I ever experienced in the war: The manager of the Veterans Administration in Newark . . . handed me a letter telling me I was scheduled to be fired within 30 days on the ground that I was “disloyal” to the government of the United States.

_____________

Thus was James Kutcher launched on a career as a national figure. For from that day on, he has been engaged in a continuing fight to defend himself (and his parents as well) against the attacks of various government agencies.

The charges against Kutcher, brought under President Truman’s loyalty program, Executive Order 9835 of March 21, 1947, all arose out of his membership and activity in the Socialist Workers party. This ineffectual splinter group was certainly no instrument of any foreign power. It was devoted to the doctrines of Leon Trotsky, and was anathema to the Communists.

Nonetheless, it had long been an object of special concern to the government. Its leaders were the first persons prosecuted under the Smith Act. In 1941, years before the first prosecution directed against the leaders of the Communist party, eighteen major and minor leaders of the Socialist Workers party were convicted and sentenced to prison in a trial initiated by the then Attorney General, Francis Biddle. About the same time, Biddle drew up a more or less informal list of subversive organizations for the guidance of government agencies. This list included a number of Communist and Fascist groups, as well as the Socialist Workers party, the dissident Trotskyists of the Workers party (later called the Independent Socialist League), and the Industrial Workers of the World. Executive Order 9835 gave official status to a revised and expanded version of this list, drawn up by Attorney General Tom Clark. Membership in any organization on the list was to be considered as showing a need for further investigation of an employee’s loyalty. In drawing up the list, neither Biddle nor Clark gave any hearing to the organizations concerned. Later, the courts held (in the case of the Joint Anti-Fascist Refugee Committee) that the failure to grant a hearing was a violation of due process. Nevertheless, the Socialist Workers party has to this day been unable to secure such a hearing. (Its application for one was rejected by Attorney General Brownell on the ground that it was signed only by the party’s secretary, Farrell Dobbs, and not by its chairman, James Cannon.)

The lack of due process in establishing the Attorney General’s list does not, of course, mean that membership in organizations on the list is irrelevant to fitness for a sensitive position in the government. It merely means that the list itself is not valid proof of such relevance. Certainly there are a great many positions of such a nature that membership in the Socialist Workers party and adherence to its doctrines would be ample ground for disqualification. This is true even without going into the question of security—it is obvious, for instance, that a member of the SWP would not be a much better choice than Judith Coplon was for the position she held in the Department of Justice.

But the case of James Kutcher has never, in any of its aspects, even remotely involved security, or even suitability. The action taken against Kutcher seems to have been intended to punish him for his beliefs and affiliations, and it seems neither to have had nor pretended to have any other purpose.

Kutcher replied to the charges by affirming his membership in the SWP and challenging the validity of the loyalty program in general and the Attorney General’s list in particular. In accordance with the procedure established under the executive order, he was given a hearing before the Veterans Administration Branch Loyalty Board on September 10, 1948. The government representative opened the hearing by declaring: “The charges are based upon investigation, reports of which are in the possession of the Board, and no witnesses will be presented on behalf of the government. I wish to call the Board’s attention to the reply of the employee by letter dated August 25, 1948, wherein it was stated in paragraph 2, ‘I have never denied my membership in the Socialist Workers Party; I do not deny it now; on the contrary, I proudly affirm it.’ I have nothing further to present at this time.”

In accordance with the regulations under which it operated, the Board refused to permit any evidence designed to challenge the validity of the Attorney General’s designation of the SWP as subversive; it held that his decision on this point was binding on it. It did, however, permit Kutcher to testify as to his own beliefs, his relation to the party, and his interpretation of its doctrines. And the government stipulated that his job was not a sensitive one. On October 12, Kutcher received notice that, after considering all the evidence, the Board had decided that there were reasonable grounds for believing him disloyal, and that he was suspended from his job. Despite the formal reference to “all the evidence,” it was clear that his dismissal was based solely on his membership in the SWP.

Had there been any doubt on this point, it was dispelled by the decison of the Assistant Administrator of the Veterans Administration in response to Kutcher’s appeal. On December 29, 1948, he wrote: “. . . there is no choice but to affirm the action of the Deputy Administrator in suspending you from duty and pay. You have admitted and therefore it must be concluded to be a fact that you are a member of the Socialist Workers Party. . . . The Attorney-General has determined that the Socialist Workers Party is an organizaton that seeks to alter the form of government of the United States by unconstitutional means. The Veterans Administration is bound by that determination of the Attorney General. The Chairman of the Loyalty Review Board, in a memorandum dated December 17, 1948, copy of which is enclosed, states that section 9A of the Hatch Act makes it mandatory to remove from the service any employee found to be a member of that organization.”

Kutcher then appealed to the national Loyalty Review Board. Here his case was heard by a panel of three distinguished and liberal-minded men: John Harlan Amen, John Kirkland Clark, and Henry Parkman. The Loyalty Review Board agreed to hear testimony on the doctrines of the SWP from the party’s secretary, Farrell Dobbs—and then decided that the determination of the Attorney General was binding on it as a matter of law, and that it therefore had no choice but to affirm Kutcher’s dismissal. Kutcher was notified of this on April 25, 1949.

There remained the courts. Here, after the Federal District Court had upheld his dismissal, he secured a reversal from the Court of Appeals of the District of Columbia. The court held on October 16, 1952, that, despite the hearing board’s statement that it had considered all the evidence, the Administrator had based his action solely on Kutcher’s membership in the SWP. And this, it held, was insufficient basis for dismissal under the Executive Order. It therefore directed the Administrator to reconsider the case, taking all the evidence into account.

The Administrator, holding that the court had found fault with his determination, but not with the original loyalty hearing, did not convene a new loyalty board to hear the case de novo . He did, however, give Kutcher a new hearing before the VA’s Loyalty Board of Appeals. This took place on March 9, 1953. The Board questioned Kutcher rather extensively on his views; it was clearly seeking to develop further evidence, beyond Kutcher’s membership in the SWP, to prove him subversive. In response to specific and repeated questions, he reiterated his own opposition to the use of force, violence, or other unconstitutional means to alter the form of government of the United States. (In the original hearing, some very confused questions on these points had produced answers which were not models of clarity—although they were not inconsistent with the position Kutcher now stated unequivocally.)

Three points in the questioning deserve specific mention, because they were cited by the Board as part of the basis for its ruling, handed down on February 7, 1955, reaffirming Kutcher’s dismissal. In the questioning on his beliefs, the following colloquy took place:

Mr. Lynch (board member): Have you read the Communist Manifesto? Mr. Kutcher: Yes, sir. Mr. Lynch: Do we find therein representative views of Karl Marx? Mr. Kutcher: Yes, sir. Mr. Lynch: And you say that we would not find therein advocacy or force and violence? Mr. Kutcher: That’s right. Mr. Lynch: Do you advocate the course of action as advocated by Karl Marx? Mr. Kutcher: Yes, sir. Mr. Lynch: Does that include world revolution? Mr. Kutcher: That includes bringing about socialism all over the world. Mr. Lynch: Is that action based upon destruction by force and violence, if necessary, of our present capitalistic system, the system under which we live under the Constitution of the United States? Mr. Kutcher: It doesn’t say that at all.

In its decision, the Board used this as a basis for impeaching the integrity of Kutcher’s testimony, asserting: “He denied that the Communist Manifesto . . . contemplated revolution and destruction by force and violence, if necessary, of our present constitutional Government and way of life. Such denials were made in the face of his assertion of having read the Manifesto and, what appears to be, in fact, his fair understanding of the teachings of Marx set out, among other places, in the Communist Manifesto. . . .” The Board then quoted the concluding paragraph of the Manifesto, calling for “the forcible overthrow of the whole extant social order.”

The Board also asked Kutcher a number of questions as to whether he remembered certain activities of various individuals in the SWP. He answered that he did not; then, after a recess in which he conferred with his counsel Joseph Rauh, he changed his testimony and admitted that he did remember them and had denied it in order to avoid involving others. This also seemed to the Board to cast “serious question” on the integrity of Kutcher’s testimony.

And as a clincher, the Board cited Kutcher’s testimony, in answer to a hypothetical question, that if he knew “a very close friend” to be a member of the Communist party, he did not think he would voluntarily go and report him to the FBI if the individual in question had not committed any overt act against the government. On the basis of this, the Board declared: “In other words, his pretended loyalty to this Government is overcome by his admitted loyalty to those who seek to destroy it.” This writer suspects that if Kutcher’s answer on this point is proof of disloyalty, many, many other people would have to be branded as disloyal—though perhaps not all of them would be as truthful about it as Kutcher if their jobs were at stake.

Aside from these points the Board based its decision on the subversive character of the Socialist Workers party—buttressing its case by citing the evidence in the 1941 Smith Act trial.

Kutcher again appealed to the courts for relief. His petition, turned down by the United States District Court, is now before the United States Court of Appeals. It is based partly on procedural grounds, one of which is the use by the Board of evidence (including the material on the SWP’s subversive character) which had not been presented at the hearing so that Kutcher could refute it. It again challenges the listing of the SWP. And it maintains that dismissal from a non-sensitive post on the grounds given violates Kutcher’s rights under the First Amendment.

Meanwhile, new troubles were brewing for Kutcher. In July 1952 Congress passed the Gwinn Amendment to the Independent Offices Bill, barring from federally aided public housing all members of organizations on the Attorney General’s list. Hence the Newark Public Housing Authority demanded in December 1952 that all tenants of the Seth Boyden Housing Project, where Kutcher lives with his parents, certify that neither they nor any members of their families belonged to any such organization. Kutcher’s old and ailing father was not himself a member; neither was Kutcher’s mother. But as long as their son lived with them, they could not make the required certification. The Kutchers therefore went to court to seek an injunction against the enforcement of the requirement. This was granted by the lower court, appealed through various stages by the Newark Housing Authority, and affirmed on December 19, 1955, by the New Jersey Supreme Court, in a decision which avoids the constitutional issues involved. The Newark Housing Authority is seeking to appeal this decision to the Federal courts, which also have before them a number of other decisions in Gwinn Amendment cases by state and lower Federal courts—almost all of them favorable to the tenants. The United States Supreme Court will probably have to decide on the validity of the Gwinn Amendment. In view of the near unanimity of lower court decisions, the Court seems unlikely to uphold the provision; the question seems to be whether it will base its decision on the narrow grounds of lack of due process in the promulgation of the Attorney General’s list, or will deal with the broader constitutional issues.

The decision of the New Jersey Supreme Court came at a time when Kutcher was faced with what many regarded as the most outrageous attack of all. This was an attempt to deprive him of his disability pension on the ground of his membership in the SWP. On December 12, 1955, he was presented with a statement of charges and notice of suspension of pension payments, based on a provision of the law providing for the revocation of pensions in case of mutiny, sabotage, treason, or rendering assistance to the enemy. It was charged that by his membership in and activities on behalf of the SWP, Kutcher had assisted the North Koreans and Chinese during the Korean war.

This was the first time this provision had been invoked in a case similar to Kutcher’s. In the hearing on Kutcher’s case, which took place on December 30 before the VA’s Central Committee on Waivers and Forfeitures, the chairman stated that a number of cases of revocation under the same provision had taken place overseas. Further investigation reveals that most if not all of these were cases of veterans of World War I who had returned to their native countries and then served against the United States in World War II. If they had resumed their original citizenship—or perhaps had never become American citizens—they were obviously not guilty of treason. But they were certainly guilty of assisting the enemy. It appears more than probable that the law’s reference to “rendering assistance to the enemy” was intended to cover such cases, not to apply to persons whose political activities in the United States might be held to be indirectly of such assistance.

The actual precedent for the proceedings in the Kutcher case was the revocation of the disability pensions of two Communist leaders, Robert Thompson and Saul Well-man. Even these cases were by no means precisely parallel to Kutcher’s case; Thompson and Wellman had been convicted under the Smith Act—though not of the offense on the basis of which their pensions were revoked—and they had not concealed their sympathy for the Chinese and North Korean governments. But they were similar in that they represented a stretching of the law, of no conceivable benefit to the security of the United States, to deprive Americans of their contractual rights to pensions, under circumstances not contemplated by the law, for their political activities. (It is perhaps worth noting that after the Civil War, men who had risen in armed rebellion against the United States were nevertheless permitted to retain pensions based on prewar service.)

The threat to Kutcher’s pension resulted in an immediate outcry throughout the nation, from conservatives as well as liberals. Indeed, it would be hard to find a voice which defended the proposed revocation. The situation had, indeed, been similar when Kutcher was originally brought up on the loyalty charge in relation to his job. At that time, he had the support of almost every one of the many newspapers which commented on the case, as well as of organized labor and numerous other groups.

The one significant exception was the Communist party, whose West Coast organ, People’s World , declared on June 24, 1949: “To talk of ‘civil liberties’ for a Kutcher is to talk of ‘civil liberties’ for a Ward Warren or a Louis Budenz. It is to argue for the rights of a stool pigeon or a paid agent of fascism to sink a knife into the back of the people in their search for a better world. The American people are not in favor of awarding a purple heart to Hitler.” This position, however, completely isolated the Communists even from most of their closest friends; thus Kutcher received the support of Harry Bridges’ International Longshoremen’s and Warehousemen’s Union. Perhaps because of that experience, or because they had come to a belated realization that they could use the attack on Kutcher to serve their own purposes, the Communists now gave Kutcher half-hearted support.

Like the Communists, the Veterans Administration also now apparently realized that the Kutcher case was a very hot potato. Or perhaps it was simply that the law on pension forfeitures, by requiring that guilt be proved beyond a reasonable doubt, gave them an out which they lacked under the security program. In any case, the Committee on Waivers and Forfeitures ruled on January 6, 1956, that a reasonable doubt did exist and Kutcher could keep his pension.

The case of James Kutcher is in some ways the most outrageous example of its kind which has so far come to light. No other person seems to have been exposed to the multiple forms of jeopardy which the government has visited on him. But the infliction of a single injustice is bad enough, though a triple injustice is certainly worse. His case has a special pathos because of his personal circumstances; a persecution which would in any case be wrong becomes a supreme example of bureaucratic callousness. But James Kutcher’s physical condition is not the source of the wrong done to him; it merely aggravates it. Kutcher is a follower of Trotsky. But the treatment to which he has been subjected would be no more just if he were a Communist. The country is certainly no safer now that Robert Thompson and Saul Wellman have been deprived of their disability pensions and, it is reported, called on to refund the payments they have received since the end of the war. (Even under the Veterans Administration’s own highly questionable interpretation of the law, there would seem no basis for this last demand; the United States was not at war with any Communist power prior to 1950. It should also be noted that, even if Thompson’s conviction under the Smith Act were considered a substitute for a hearing on the charge of rendering assistance to the enemy, all the acts involved in his trial took place before 1950 and hence have no relevance to the charge; he has been convicted without a hearing of any sort in respect to the only acts relevant to the pension case, those committed during the Korean war.)

If the revocation of veterans’ pensions has been based on a strained and questionable interpretation of the law, the denial of Social Security funds to former Communist party officials (e.g. Alexander Bittelman) is based on a fantastic one. The assertion that the Communist party, because it has been designated as an agent of a foreign government by the Subversive Activities Control Board, comes under the exclusion of foreign government agencies from the provisions of the Social Security Act, represents a deliberate confusion of two very different things. The type of foreign government agency excluded from the Social Security Act has diplomatic or consular status; its exclusion follows from the legal inability of our government to tax it. It does not appear likely that the government plans to confer diplomatic immunity on the officials of the Communist party. The status of that party, under the determination—with which this writer agrees—that it is a foreign agent, is analogous to that of the various public relations firms which are paid propagandists for foreign governments. And it has not been suggested that they be excluded from the Social Security Act. (Of course, if the Communist party had not paid Social Security taxes, it would have been prosecuted for failing to do so.)

Some of these things have been done without warrant in law, or under laws of doubtful constitutionality. Others may be legally sound. But all of them have in common an absence of relation to any genuine considerations of security, a lack of moral justification, a departure from the basic principle that punishment shall be inflicted only in the form of prescribed penalties for definite offenses after a fair trial.

Any limitation of liberty without a clear need is tyranny; any injury to the individual without a clear benefit to society is pointless cruelty; any punishment without adequate grounds or due process of law is injustice. No matter what guilt men may bear, we still retain a basic responsibility toward them as human beings as long as we permit them to live at all—yes, even though they may be Communists or Fascists.

When the Russian army entered Germany near the end of the war, a Russian soldier whose whole family had been slaughtered by the Nazis vowed to an American correspondent to kill every German who fell into his hands. A few days later the correspondent observed him giving a cigarette to a German prisoner, and asked him how he explained his change of heart.

“Well,” said the soldier, “one kills, or one lets live. And if one lets live, a man must smoke.”

Revolution Number IX

What Happens When You Have to Win a War

Capitalism—Now More Than Ever

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Due Process Denied: A Case Study on the Failures of U.S. Affirmative Asylum

Jun 1, 2023 | Content , Online Features , Online Scholarship , The Impact of International Law on Refugees and Migration

Anna R. Welch and Sara P. Cressey *

With this new [asylum] program in place, we will be better equipped to carry out the spirit and intent of the Refugee Act of 1980 by applying the uniform standard of asylum eligibility, regardless of an applicant’s place of origin. We can thus implement the law based on a fair and consistent national policy and streamline what has sometimes been a long and redundant process. [1]

Gene McNary, Commissioner of the Immigration and Naturalization Service, in remarks given weeks before opening of first asylum offices.

Amelia fled her home country in central Africa after the country’s repressive ruling regime singled her out based on her perceived political affiliations, subjected her to severe physical and sexual violence, murdered her sibling, and kidnapped and likely killed one of her children. [2] After arriving in the United States, she found an attorney who assisted her in preparing and submitting her affirmative asylum application along with extensive supporting documentation, including expert medical reports documenting the ongoing physical and psychological effects of her trauma. A year after submitting her application, Amelia had her asylum interview with a hostile asylum officer who spent several hours interrogating her as she recounted the harrowing persecution she had suffered. Another year of waiting passed before Amelia received a request for additional evidence and a notice that she would need to attend a second interview at the asylum office. Amelia complied with both notices but was nevertheless referred to immigration court, where she spent another five years awaiting a merits hearing. She was finally granted asylum by an immigration judge eight years after her original asylum application was filed.

Introduction

America’s promise of safe haven to those fleeing from persecution, an obligation enshrined in both international and domestic law, [3] too often remains unfulfilled, particularly for racial minorities and other marginalized groups. Indeed, the right to seek asylum at the southern border has been virtually nonexistent since Title 42 was implemented in the early days of the COVID-19 pandemic. [4] Meanwhile, those who do manage to make it into the United States to lodge an asylum claim face a Byzantine administrative process plagued by “monumental” backlogs, leading to years-long (or even decades-long) wait times. [5] This Article focuses on one particular aspect of the asylum system, reporting on the first ever comprehensive study into the inner workings of an asylum office in the United States. [6] The findings of the study, set forth in the full report “Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers,” reveal larger systemic failures within the broader affirmative asylum system. [7]

The investigation into the Boston Asylum Office, spearheaded by lead investigator Anna Welch, involved both qualitative and quantitative research methods. Researchers analyzed documents and data produced by U.S. Citizenship and Immigration Services (USCIS) in response to litigation brought to compel compliance with a Freedom of Information Act (FOIA) request, as well as USCIS Quarterly Stakeholder Reports. In addition, researchers conducted more than one hundred interviews with former supervisory asylum officers, former asylum officers, immigration attorneys, asylum seekers, and asylees. The research was completed in January 2022, and the report was released to the public on March 23, 2022. This Article reproduces the findings of the  report,  presented  as  a  resource  for practitioners, scholars, and policymakers. The report’s major conclusion is that the Boston Asylum Office maintains an asylum grant rate well below that of the national average. [8]

The Refugee Act of 1980 formalized the right to seek asylum in the United States, but “the law itself did little to define or prescribe the mechanics of obtaining this status.” [9] During the 1980s, the adjudication of affirmative asylum applications was governed by a set of interim regulations [10] under which immigration officers within Immigration and Naturalization Service (INS) District Offices would adjudicate asylum claims. [11] During that period, criticism of the INS abounded as “unspecialized, under-paid, and over-worked” INS officers [12] struggled to apply the complex refugee definition. [13] On July 27, 1990, the INS issued a final rule establishing procedures to be used in determining asylum claims and mandating the creation of “a corps of professional Asylum Officers” who would receive specialized training in international law and conduct asylum interviews in a nonadversarial setting. [14] The INS then established – for the first time – seven asylum offices, with the goal of creating a fairer and uniform affirmative asylum process. [15]

Federal regulations still require that asylum officers receive “special training in international human rights law” and “nonadversarial interview techniques.” [16] USCIS training materials for asylum officers emphasize the importance of the nonadversarial interview:

It is not the role of the interviewer to oppose the principal interviewee’s request or application. Because the process is non-adversarial, it is inappropriate for you to interrogate or argue with any interviewee. You are a neutral decision- maker, not an advocate for either side. In this role you must effectively elicit information from the interviewee in a non- adversarial manner, to determine whether he or she qualifies for the benefit. . . . The non-adversarial nature of the interview allows the applicant to present a claim in an unrestricted manner, within the inherent constraints of an interview before a government official. [17]

Unfortunately, the affirmative asylum system remains plagued by many of the issues that the 1990 final rule was intended to solve. As discussed in detail below, the process for adjudicating affirmative asylum claims remains long and difficult and too often leads to inconsistent outcomes based on the applicant’s country of origin. The more informal, non-adjudicative framework for adjudicating asylum claims in the asylum offices lacks transparency and creates an opportunity for hostility and bias to permeate the decision-making process.

I. Summary of Major Findings

The Boston Asylum Office maintains an asylum grant rate well below that of the national average. Examining the average nationwide grant rate of asylum offices between 2015 and late 2020, we found that the Boston Asylum Office granted a little over 15 percent of its cases as compared to the national average grant rate of 28 percent. Examining monthly grant rates, we found that the Boston Asylum Office’s grant rates dropped into the single digits on multiple occasions. While the Boston Asylum Office maintains the second lowest grant rate in the country, several asylum offices around the country also maintain grant rates below that of the national average.

Indeed, many of the problems identified in this study are likely not isolated problems but rather are reflective of larger systemic failures pervasive in other asylum ffices around the country. As part of this study, we interviewed former asylum officers and supervisory asylum officers from asylum offices around the country. Many noted the prevalence of biased decision-making, the outsized role of upper management and/or supervisory asylum officers, and insufficient time to complete their job functions. Yet their functions are critical to ensuring U.S. compliance with international and domestic asylum protections.

We ultimately find that the Boston Asylum Office is failing asylum applicants in violation of international obligations and U.S. domestic law. The Boston Asylum Office’s biased and combative asylum interview process, asylum backlog, and years-long wait for adjudication has had devastating impacts on applicants and their families. If an asylum officer does not grant a case, the case is typically referred to immigration court, an intentionally adversarial setting. [18] Although the Boston Immigration Court has a significantly higher asylum grant rate than the Boston Asylum Office, [19] asylum applicants face even lengthier backlogs before being heard by an immigration judge, leading to further delay. [20] As a result, asylum seekers face years of legal limbo, rendering many individuals ineligible for social services and contributing to significant instability. The years-long wait to be granted asylum causes lengthy separation from family members (many of whom remain in life-threatening danger) and deterioration of the applicant’s mental health. [21]

Specific Findings:

First, the Boston Asylum Office exhibits bias against applicants from certain countries as well as a bias against non-English speakers, as displayed in Table 2 below.

The Boston Asylum Office does not maintain a nationality-neutral determination process, as mandated by international and domestic law. Notably, applicants from certain countries – including Angola, Democratic Republic of Congo (DRC), Rwanda, and Burundi – experience lower grant rates in the Boston Asylum Office than in the Newark Asylum Office. [22] From 2015 to 2020, the Boston Asylum Office granted asylum to just four percent of asylum applicants from the DRC despite extensive documentation of human rights abuses in the DRC. Indeed, the U.S. Department of State has acknowledged year after year that “significant human rights” abuses occur in the DRC, including that DRC security forces commit “unlawful and arbitrary killings . . . forced disappearances, [and] torture” against citizens. [23]

Interviews with asylum attorneys confirmed the prevalence of biased decision-making among adjudicators in the Boston Asylum Office. One asylum attorney noted, “the belief of the Boston Asylum Office is that [clients from certain African countries] are not telling the truth . . . We have taken a number of cases that have been referred from the Boston Asylum Office and then we have won them in court without a problem and there has been no suspicion about negative credibility.” [24]

Moreover, data collected from our FOIA request revealed that English speakers are much more likely to be granted asylum in Boston than non-English speakers, even though speaking English is irrelevant to an individual’s eligibility for asylum.

As demonstrated in Figure 2 above, English-speaking asylum seekers are nearly twice as likely to be granted asylum as compared to non-English speakers. Conversely, non-English speakers are referred to immigration courts 80 percent of the time, while English speakers are referred to immigration court only 58 percent of the time. [25]

Second, the Boston Asylum Office’s low grant rate is likely driven by the oversized role for supervisory asylum officers. Although the Affirmative Asylum Procedures Manual requires that asylum officers be given “substantial deference” in deciding whether to grant a case, [26] we found that supervisory asylum officers exercise a high degree of influence over decisions made by asylum officers.

One supervisory asylum officer familiar with the Boston Asylum Office observed that the asylum officers and supervisory asylum officers hired in Boston generally trended against granting asylum. [27] Every decision rendered by an asylum officer must go through supervisory review. When a supervisory asylum officer returns an application to an asylum officer for further review or reconsideration, this creates additional work for the asylum officer. The officer may be forced to conduct additional investigation or even re-interview the asylum seeker to support their original decision. This additional work can lead to negative performance reviews because supervisory asylum officers can give asylum officers negative performance reviews if their decisions require reconsideration. Additionally, asylum officers are evaluated, in part, on the number of decisions they issue during a given timeframe. In light of these negative impacts, asylum officers are incentivized to write decisions their supervisor agrees with, regardless of whether they think a given applicant meets the requirements for asylum.

Third, asylum officers face time constraints and high caseloads that incentivize them to cut corners. By the end of 2021, the Boston Asylum Office’s backlog of asylum cases had grown to over 20,000 pending applications. [28] To ensure that asylum seekers fleeing persecution receive adequate due process, asylum officers are responsible for a lengthy list of job duties. These include conducting interviews with asylum applicants and engaging in a thorough review of an asylum applicant’s oral testimony and written documentation. Asylum officers must also remain abreast of ever-changing asylum laws and policies and country conditions. Several former asylum officers and supervisory asylum officers stated that they simply lacked the time to complete their required jobs. They reported feeling that they needed to rush through their review of asylum applications and decision drafting, even going as far as to recycle old decisions. [29]

Fourth, we found that compassion fatigue and burnout lead to lower grant rates. Former asylum officers and supervisory asylum officers observed that after time they became desensitized to the traumatic stories that accompany most asylum applications. One former asylum officer stated that asylum applicants’ traumatic stories became so “mundane as to lose salience.” [30] Troublingly, this skepticism is apparent to those appearing before the asylum officers. Asylum applicants and their attorneys noted that asylum officers were often dismissive of the asylum applicant’s trauma and were sometimes even combative with applicants. As discussed above, U.S. regulations require that asylum interviews be non-adversarial, meaning that an asylum officer must not argue with or interrogate an asylum applicant. [31] However, many asylum attorneys commented that asylum officers took an adversarial and combative approach with applicants, in direct violation of U.S. law. [32]

Finally, we found that asylum officers disproportionately focus on an asylum applicant’s credibility and small, peripheral details to find “inconsistencies” rather than the salient facts of an applicant’s case. [33] Their search for “inconsistencies” fails to recognize that many asylum seekers have experienced trauma and may suffer PTSD-induced memory loss. Moreover, given the massive asylum backlogs across the country, [34] it is very common for years to go by between the asylum applicant’s traumatic experience in their country and their asylum interview. Those years of waiting can lead to faded memories, particularly with respect to details about specific dates, times and smaller events.

II. Recommendations

We now turn to several recommendations to help address failures in U.S. compliance with international and domestic asylum protections.

First, the Boston Asylum Office must develop enhanced transparency and accountability. We call for a U.S. Government Accountability Office investigation into the Boston Asylum Office and recommend replacing asylum officers and supervisory asylum officers who demonstrate bias and/or a lack of cultural literacy. We also call for a system to mitigate the outsized role that supervisory asylum officers play in swaying the decisions of asylum officers.

Second, we recommend that all asylum interviews be recorded and that those recordings be made available to asylum applicants and their attorneys, where applicable. Currently, asylum interviews at all asylum offices around the country take place behind closed doors with no recordings or written transcripts. The only written record of what took place during an asylum interview is the asylum officer’s notes. Such notes are often not reflective of what happened during the interview, incomplete, riddled with errors. Absent an accurate recording or transcript, asylum officers may employ improper practices, such as adversarial, insensitive and biased interview techniques, with impunity. This is especially true if the asylum applicant does not have an attorney to bear witness to what occurred during the interview. Importantly, the creation and preservation of accurate records of asylum interviews is critical to ensuring that asylum seekers’ due process rights are realized in immigration court. The asylum officer’s notes and assessments are often used to impeach asylum applicants in immigration court even if they are not reflective of what was said during the interview.

Third, we call for more support and resources for asylum offices. We recommend limiting officers to one interview per day, instituting more rigorous hiring standards, support structures, and mentorship, and improving asylum officer training, with a focus on mitigating bias and racism. We also recommend developing more asylum officer trainings on trauma, compassion fatigue, and cultural literacy.

Fourth, we recommend a paper-based adjudications process that would take the place of the asylum interview when it is clear asylum should be granted based on the evidence submitted. This would help address the backlog and preserve resources by limiting asylum interviews to cases where the outcome is less certain, or where credibility or national security are relevant concerns.

Finally, we recommend ending the “last-in, first-out” (LIFO) policy that prioritizes the adjudication of cases most recently filed. [35] The LIFO policy extends wait times for hundreds of thousands of asylum applicants whose cases have already been pending for years.36

Since this study was released in March 2022, several members of Congress from Massachusetts and Maine called on the Department of Homeland Security Office of Inspector General to investigate the Boston Asylum Office to hold the office accountable.37 To date, an investigation has not yet been granted, and the issues brought to light by this study remain pressing.

The Boston Asylum Office has instituted several changes that we hope will bring it into better compliance with its legal obligations. These changes include increasing the number of asylum officers and overhauling supervisory staff. The office has also added a “section chief” who is tasked with ensuring that asylum officers make legally correct decisions, rather than decisions that respond to pressures from supervisory asylum officers.

While these developments are certainly encouraging, the troubling fact remains that practices at the Boston Asylum Office have diverged significantly from the requirements of U.S. and international asylum protections. To ensure that asylum seekers in New England receive the protection to which they are entitled, monitoring data and practices of the Boston Asylum Office remains necessary. As it stands, stories like Amelia’s who, as mentioned at the outset, was forced to wait over eight years for her asylum case to be finally adjudicated are far too common, leading asylum seekers with meritorious claims to remain in limbo for years, unable to petition for family members who may still be living in danger.

Our sincere hope is that other advocates will use this first-of-its’s-kind case study as a model. Although the study focused on one asylum office, the issues we uncovered reveal larger systemic patterns likely pervasive throughout the United States affirmative asylum system. Given the life-or-death stakes in asylum cases, additional investigation remains imperative to ensure due process is realized for asylum seekers.

[*] Clinical Professor Anna Welch is the founding director of the University of Maine School of Law’s Refugee and Human Rights Clinic. Sara Cressey is the Staff Attorney for the Refugee and Human Rights Clinic. The authors express our sinceregratitude to the current and former Refugee and Human Rights Clinic student attorneys who devoted countless hours topreparing and writing the report entitled Lives in Limbo: How the Boston Asylum Office Fails Asylum Seekers , upon which thisArticle is based, including Emily Gorrivan (’22), Grady Hogan (’22), Camrin Rivera (’22), Jamie Nohr (’23), and Aisha Simon (’23). The report was also made possible by volunteers Adam Fisher and Alex Beach, who conducted valuable analysis of data collected from U.S. Citizenship and Immigration Services. Finally, the authors are indebted to the Clinic’s collaborators who co-authored the report: the Immigrant Legal Advocacy Project (ILAP), American Civil Liberties Union ofMaine (ACLU of Maine), and Basileus Zeno, Ph.D. The report received the Clinical Legal Education Association’s 2022 Award for Excellence in a Public Interest Case or Project. An extended version of this piece is forthcoming in early 2024 in Volume 57, Issue 1 of the Loyola of L.A. Law Review.

[1] Gene McNary, INS Response to Immigration Reform , 14 IN DEFENSE OF THE ALIEN 3, 6 (1991).

[2] This story is drawn from the stories of multiple clients of the Refugee and Human Rights Clinic. Names and details have been changed to protect the privacy of those clients and preserve confidentiality.

[3] Congress enacted the Refugee Act of 1980 to bring the United States into conformity with international standards for the protection of refugees established by the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status ofRefugees. See S. REP. No. 96-256, at 4 (1980), as reprinted in 1980 U.S.C.C.A.N. 141, 144.

[4] Between March 2020 and April 2022, Border Patrol expelled 1.8 million migrants under Title 42, the vast majority of whom came from Mexico, Guatemala, Honduras, and El Salvador. John Gramlich, Key Facts About Title 42, the Pandemic Policy That Has Reshaped Immigration Enforcement at U.S.-Mexico Border , PEW RESEARCH CENTER (Apr. 27, 2022), https://www.pewresearch.org/fact-tank/2022/04/27/key-facts-about-title-42-the- pandemic-policy-that-has-reshaped-immigration-enforcement-at-u-s-mexico-border/; see also Human Rights Watch, US: Treatment of Haitian Migrants Discriminatory (Sept. 21, 2021), https://www.hrw.org/news/2021/09/21/us-treatment-haitian-migrants-discriminatory (“Title 42 . . . singles out asylum seekers crossing into the United States at land borders – particularly from Central America, Africa, and Haiti who aredisproportionately Black, Indigenous, and Latino – for expulsion.”). Those expelled under Title 42 have faced life- threatening violence either in Mexico or in the countries from which they originally fled. See , e.g. , Julia Neusner, A Year After Del Rio,Haitian Asylum Seekers Expelled Under Title 42 Are Still Suffering , HUMAN RIGHTS FIRST (Sept. 22, 2022), https://humanrightsfirst.org/library/a-year-after-del-rio-haitian-asylum-seekers-expelled- under-title-42-are-still-suffering/; Kathryn Hampton, Michele Heisler, Cynthia Pompa, & Alana Slavin, Neither Safety Nor Health: How Title 42 Expulsions HarmHealth and Violate Rights , Physicians for Human Rights (July 2021), available at https://phr.org/our-work/resources/neither-safety-nor-health/.

[5] Transactional Records Access Clearinghouse (TRAC), A Mounting Asylum Backlog and Growing Wait Times (Dec. 22,2021), https://trac.syr.edu/immigration/reports/672/; see also Transactional Record Access Clearinghouse (TRAC), Immigration Court Asylum Backlogs (Oct. 2022), https://trac.syr.edu/phptools/immigration/asylumbl/.

[6] U.S. Citizenship and Immigration Services operates ten asylum offices within the United States. See U.S. Citizenship and Immigration Services, Fiscal Year 2021 Report to Congress: Backlog Reduction of Pending Affirmative Asylum Cases , at 4 (Oct. 20, 2021), available at https://www.dhs.gov/sites/default/files/2021-12/USCIS%20-%20Backlog%20Reduction%20of%20Pending%20Affirmative%20Asylum%20Cases.pdf . The asylum offices are responsible for adjudicating affirmative asylum applications filed by asylum seekers who are not otherwise in removal or deportationproceedings. See 8 C.F.R. § 208.2(a)-(b).

[7] University of Maine School of Law, American Civil Liberties Union of Maine, and Immigrant Legal Advocacy Project, “Livesin Limbo: How the Boston Asylum Office Fails Asylum Seekers” (March       2022), available at https://mainelaw.maine.edu/wp- content/uploads/sites/1/Lives-in-Limbo-How-the-Boston-Asylum-Office-Fails-Asylum-Seekers-FINAL-1.pdf (hereinafter “Lives in Limbo”).

[8] See id. at 3-4. The report’s authors analyzed data pertaining to asylum applications adjudicated by the Boston and Newark Asylum Offices between 2015 and 2020. Unfortunately, available data for decisions made since the end of 2020 suggests that the trends at the Boston Asylum Office have remained consistent. In the first quarter of 2022, the office’s approval rate remained at eleven percent. See U.S. Citizenship & Immigration Servs., I-589 Asylum Summary Overview, at 10, available at https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf.

[9] Gregg A. Beyer, Establishing the United States Asylum Officer Corps: A First Report , 4 INT’L J. REFUGEE L. 455, 458 (1992).

[10] See Aliens and Nationality; Refugee and Asylum Procedures, 45 Fed. Reg. 37392, 37392 (June 2, 1980); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 52 Fed. Reg. 32552-01, 32552 (Aug. 28, 1987); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 53 Fed. Reg. 11300-01, 11300 (Apr. 6, 1988); Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg. 30674-01, 30675 (July 27, 1990).

[11] Id. at 459.

[12] Gregg A. Beyer, Affirmative Asylum Adjudication in the United States , 6 GEO. IMMIGR. L.J. 253, 274 (1992).

[13] Id. at 268-69.

[14] See Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg. 30674-01, 30680, 30682 (July 27, 1990) (to be codified at 8 C.F.R. pt. 208).

[15] Beyer, supra note 6, at 470.

[16] 8 C.F.R. § 208.1(b).

[17] U.S. CITIZENSHIP & IMMIGR. SERVS.: REFUGEE, ASYLUM, & INT’L OPERATIONS DIRECTORATE OFFICER TRAINING, INTERVIEWING – INTRODUCTION TO THE NON- ADVERSARIAL   INTERVIEW,   at   15-16   (Dec.   20,   2019),   available   at https://www.uscis.gov/sites/default/files/document/foia/Interviewing_- _Intro_to_the_NonAdversarial_Interview_LP_RAIO.pdf.

[18] 8 U.S.C. § 1229a(b)(1) (“The immigration judge shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.”).

[19] Compare Exec. Off. for Immigr. Review, Adjudication Statistics: FY 2022 ASYLUM GRANT  RATES BY COURT, available at https://www.justice.gov/eoir/page/file/1160866/download (showing an asylum grant rate of nearly 30% for the Boston Immigration Court in Fiscal Year 2022), with U.S. CITIZENSHIP & IMMIGR. SERVS., I-589 AFFIRMATIVE ASYLUM SUMMARYOVERVIEW FY 2022 Q1 (OCT 1, 2021 – DEC 31, 2021), at 10, https://www.uscis.gov/sites/default/files/ document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf (showing an asylum grant rate of approximately 11% for the Boston Asylum Office in the first quarter of Fiscal Year 2022). Many asylum offices have approval rates below that of the immigration courts. In fact, the most recent data reported by the Transactional Record Access Clearinghouse revealed that over three quarters of the asylum cases referred to the immigration courts by the asylum offices are granted. See Transactional Record Access Clearinghouse (TRAC), “Speeding Up the Asylum Process Leads to Mixed Results,” (Nov. 29, 2022), https://trac.syr.edu/reports/703/ (“Over three- quarters (76%) of cases USCIS asylum officers had rejected were granted asylum on rehearing by Immigration Judges.”).

[20] See Jasmine Aguilera, A Record-Breaking 1.6 Million People are now Mired in U.S. Immigration Court Backlogs , TIME, https://time.com/6140280/immigration-court- backlog/; TRAC Immigration, Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of cases (Jan. 18, 2022), https://trac.syr.edu/immigration/reports/675/;Transactional Record Access Clearinghouse (TRAC), Immigration Court Asylum Backlogs (October 2022), https://trac.syr.edu/phptools/immigration/asylumbl/.

[21] Interview with asylum attorney (November 2021) (“[My client is] having severe depression. This has derailed his life . . . I’ve never seen an individual on the brink of a nervous breakdown. I don’t know if he’ll survive this or overcome this.”).

[22] Data from the Newark Asylum Office provides a useful comparison because prior to the creation of the Boston Asylum Office, the Newark Asylum Office adjudicated affirmative asylum cases for the Boston region with a higher average grant rate than the Boston Asylum Office.

[23] U.S. Dep’t of State, Democratic Republic of Congo 2020 Human Rights REPORT (Mar. 30, 2021),https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/democratic-republic-of-the-congo/.

[24] Interview with asylum attorney (January 2022). See Interview with asylum attorney (August 2021) (“From my experiences with clients in the Boston Asylum Office, there seem to be people at the Boston Asylum Office who set the mindset against certain ethnic groups or nationalities. . . it’s like they default to ‘everybody’s a liar.’”); Interview with asylum attorney (November 2021) (stating that when he appeared in the Boston Immigration Court, some judges have asked why certain cases were referred from the asylum office, expressing exasperation that these cases are adding to the court’s backlog where they were clearly approvable at the affirmative level).

[25] This, in turn, leaves asylum seekers in legal limbo and drains government resources.

[26] Affirmative Asylum Procedures Manual , U.S. CITIZENSHIP AND IMMIGR. SERVS., RAIO, Asylum Division, 27 (May 17, 2016), https://www.uscis.gov/sites/default/files/document/guides/AAPM-2016.pdf (“It is not the role of the SAO to ensure that the AO decided the case as he or she would have decided it. AOs must be given substantial deference once it has been established that the analysis is legally sufficient.”).

[27] Interview with former supervisory asylum officer familiar with the Boston Asylum Office (November 2021) (explaining that the asylum officers and supervisory asylum officers initially hired at the Boston Asylum Office “tended to be people who did not grant [asylum] that much,” and noted that supervisory asylum officers are given “a lot of leeway” in refusing to give the asylum seeker the “benefit of the doubt.”).

[28] U.S. CITIZENSHIP & IMMIGR. SERVS., I-589 AFFIRMATIVE ASYLUM SUMMARY OVERVIEW  FY2022  Q1  (OCT  1,  2021–DEC 31, 2021), at 12, https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statistics_Report_FY22_Q1_V4.pdf (listing the Boston Asylum Office’s affirmative asylum caseload as 20,900 as of December 31, 2021). Backlogs in asylum cases are not unique to the Boston Asylum Office. Nationally, the backlog reached a “historic high” during the Trump Administration, with over 386,000 pending applications by the end of fiscal year 2020. HUM. RTS. FIRST, PROTECTION POSTPONED: ASYLUM OFFICE BACKLOGS CAUSE SUFFERING, SEPARATE FAMILIES, AND UNDERMINE INTEGRATION 1-4 (Apr. 9, 2021), https://www.humanrightsfirst.org/sites/default/files/ProtectionPostponed.pdf.

[29] Interview with former supervisory asylum officer (November 2021) (“The abuse or temptation to short circuit and not do a full-fledged asylum interview is great for officers who have a tremendous backlog.”); Interview with former asylum officer (December 2021) (“There is a perverse incentive to rush through cases. Asylum officers have a stack of cases and they must turn them around quickly . . . We interview so many applicants with similar claims and many of us ended up recycling decisions, plugging in new facts and doing similar credibility assessments.”).

[30] Interview with former asylum officer (December 2021) (“This response is absolutely part of the trauma asylum officers hold from doing this work . . . Asylum officers are just exhausted. We are hearing stories of torture and abuse, often involving children, and it’s really exhausting and there’s no real support or even acknowledgement of the impact on us.”).

[31] 8 C.F.R. § 208.1(b); see also U.S. CITIZENSHIP & IMMIGR. SERVS.: REFUGEE, ASYLUM, & INT’L OPERATIONS DIRECTORATE OFFICER TRAINING, INTERVIEWING – INTRODUCTION TO THE NON-ADVERSARIAL INTERVIEW, at 15-16 (Dec. 20, 2019), available at https://www.uscis.gov/sites/default/files/document/foia/Interviewing_-_Intro_to_the_NonAdversarial_Interview_LP_RAIO.pdf (instructing that AOs are “neutral decision-maker[s]” and thus must maintain a “neutral and professional demeanor even when confronted with . . . a difficult or challenging [asylum seeker] or representative, or an [asylum seeker] whom [the AO] suspect[s] is being evasive or untruthful”).

[32] Former asylum attorney interview (November 2021) (“The client was a survivor of torture and [the officer] laughed multiple times throughout the client telling her story . . . She checked her test messages during the interview . . . The [applicant] was pouring his heart out to this person and she’s laughing . . . and yet when she is engaged, she’s cross examining him up and down.”).

[33] Interview with asylum attorney (January 2022) (“Questions seemed to be a direct way to suggest that the client was not credible . . . it was completely unnecessary and not relevant and really insensitive to the fact that [the client] was super traumatized and trying to recount horrific details about violence they experienced.”).

[34] See U.S. CITIZENSHIP & IMMIGR. SERVS., I-589 AFFIRMATIVE ASYLUM SUMMARY OVERVIEW  FY2022  Q1  (OCT  1,  2021  –  DEC  31,  2021),  at  12, https://www.uscis.gov/sites/default/files/document/data/Asylum_Division_Quarterly_Statis tics_Report_FY22_Q1_V4.pdf (listing number of pending asylum cases in each asylum office as of December 31, 2021).

[35] See Archive of Press Release, U.S. Citizenship & Immigr. Servs., USCIS to Take Action to Address Asylum Backlog (Jan. 31, 2018), available at https://www.uscis.gov/news/news-releases/uscis-take-action-address-asylum-backlog. The LIFO policy was implemented by the Trump administration, “to deter those who might try to use the existing [asylum] backlog as a means to obtain employment authorization,” id. , and remains in effect today. See U.S. Citizenship & Immigr. Servs., Affirmative Asylum. Cover image credit

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Guest Essay

Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases

By Jamie Raskin

Mr. Raskin represents Maryland’s Eighth Congressional District in the House of Representatives. He taught constitutional law for more than 25 years and was the lead prosecutor in the second impeachment trial of Donald Trump.

Many people have gloomily accepted the conventional wisdom that because there is no binding Supreme Court ethics code, there is no way to force Associate Justices Samuel Alito and Clarence Thomas to recuse themselves from the Jan. 6 cases that are before the court.

Justices Alito and Thomas are probably making the same assumption.

But all of them are wrong.

It seems unfathomable that the two justices could get away with deciding for themselves whether they can be impartial in ruling on cases affecting Donald Trump’s liability for crimes he is accused of committing on Jan. 6. Justice Thomas’s wife, Ginni Thomas, was deeply involved in the Jan. 6 “stop the steal” movement. Above the Virginia home of Justice Alito and his wife, Martha-Ann Alito, flew an upside-down American flag — a strong political statement among the people who stormed the Capitol. Above the Alitos’ beach home in New Jersey flew another flag that has been adopted by groups opposed to President Biden.

Justices Alito and Thomas face a groundswell of appeals beseeching them not to participate in Trump v. United States , the case that will decide whether Mr. Trump enjoys absolute immunity from criminal prosecution, and Fischer v. United States , which will decide whether Jan. 6 insurrectionists — and Mr. Trump — can be charged under a statute that criminalizes “corruptly” obstructing an official proceeding. (Justice Alito said on Wednesday that he would not recuse himself from Jan. 6-related cases.)

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.

Of course, Justices Alito and Thomas could choose to recuse themselves — wouldn’t that be nice? But begging them to do the right thing misses a far more effective course of action.

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455. The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.

The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “ supreme law of the land ,” and the recusal statute explicitly treats Supreme Court justices as it does other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.

When the arguments are properly before the court, Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a constitutional obligation and a statutory obligation to enforce recusal standards.

Indeed, there is even a compelling argument based on case law that Chief Justice Roberts and the other unaffected justices should raise the matter of recusal on their own, or sua sponte. Numerous circuit courts have agreed with the Eighth Circuit that this is the right course of action when members of an appellate court are aware of “ overt acts ” of a judge reflecting personal bias. Cases like this stand for the idea that appellate jurists who see something should say something instead of placing all the burden on parties in a case who would have to risk angering a judge by bringing up the awkward matter of potential bias and favoritism on the bench.

But even if no member of the court raises the issue of recusal, the urgent need to deal with it persists. Once it is raised, the court would almost surely have to find that the due process clause and Section 455 compel Justices Alito and Thomas to recuse themselves. To arrive at that substantive conclusion, the justices need only read their court’s own recusal decisions.

In one key 5-to-3 Supreme Court case from 2016, Williams v. Pennsylvania, Justice Anthony Kennedy explained why judicial bias is a defect of constitutional magnitude and offered specific objective standards for identifying it. Significantly, Justices Alito and Thomas dissented from the majority’s ruling.

The case concerned the bias of the chief justice of Pennsylvania, who had been involved as a prosecutor on the state’s side in an appellate death penalty case that was before him. Justice Kennedy found that the judge’s refusal to recuse himself when asked to do so violated due process. Justice Kennedy’s authoritative opinion on recusal illuminates three critical aspects of the current controversy.

First, Justice Kennedy found that the standard for recusal must be objective because it is impossible to rely on the affected judge’s introspection and subjective interpretations. The court’s objective standard requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable,” citing an earlier case. “This objective risk of bias,” according to Justice Kennedy, “is reflected in the due process maxim that ‘no man can be a judge in his own case.’” A judge or justice can be convinced of his or her own impartiality but also completely missing what other people are seeing.

Second, the Williams majority endorsed the American Bar Association’s Model Code of Judicial Conduct as an appropriate articulation of the Madisonian standard that “no man can be a judge in his own cause.” Model Code Rule 2.11 on judicial disqualification says that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” This includes, illustratively, cases in which the judge “has a personal bias or prejudice concerning a party,” a married judge knows that “the judge’s spouse” is “a person who has more than a de minimis interest that could be substantially affected by the proceeding” or the judge “has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particular result.” These model code illustrations ring a lot of bells at this moment.

Third and most important, Justice Kennedy found for the court that the failure of an objectively biased judge to recuse him- or herself is not “harmless error” just because the biased judge’s vote is not apparently determinative in the vote of a panel of judges. A biased judge contaminates the proceeding not just by the casting and tabulation of his or her own vote but by participating in the body’s collective deliberations and affecting, even subtly, other judges’ perceptions of the case.

Justice Kennedy was emphatic on this point : “It does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position — an outcome that does not lessen the unfairness to the affected party.”

Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line.

Judge David Tatel of the D.C. Circuit emphasized this fundamental principle in 2019 when his court issued a writ of mandamus to force recusal of a military judge who blithely ignored at least the appearance of a glaring conflict of interest. He stated : “Impartial adjudicators are the cornerstone of any system of justice worthy of the label. And because ‘deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’ jurists must avoid even the appearance of partiality.” He reminded us that to perform its high function in the best way, as Justice Felix Frankfurter stated, “justice must satisfy the appearance of justice.”

The Supreme Court has been especially disposed to favor recusal when partisan politics appear to be a prejudicial factor even when the judge’s impartiality has not been questioned. In Caperton v. A.T. Massey Coal Co. , from 2009, the court held that a state supreme court justice was constitutionally disqualified from a case in which the president of a corporation appearing before him had helped to get him elected by spending $3 million promoting his campaign. The court, through Justice Kennedy, asked whether, quoting a 1975 decision, “under a realistic appraisal of psychological tendencies and human weakness,” the judge’s obvious political alignment with a party in a case “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

The federal statute on disqualification, Section 455(b) , also makes recusal analysis directly applicable to bias imputed to a spouse’s interest in the case. Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”

At his Senate confirmation hearing, Chief Justice Roberts assured America that “judges are like umpires.”

But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, fans or players.

Justice Barrett has said she wants to convince people “that this court is not comprised of a bunch of partisan hacks.” Justice Alito himself declared the importance of judicial objectivity in his opinion for the majority in the Dobbs v. Jackson Women’s Health Organization decision overruling Roe v. Wade — a bit of self-praise that now rings especially hollow.

But the Constitution and Congress’s recusal statute provide the objective framework of analysis and remedy for cases of judicial bias that are apparent to the world, even if they may be invisible to the judges involved. This is not really optional for the justices.

I look forward to seeing seven members of the court act to defend the reputation and integrity of the institution.

Jamie Raskin, a Democrat, represents Maryland’s Eighth Congressional District in the House of Representatives. He taught constitutional law for more than 25 years and was the lead prosecutor in the second impeachment trial of Donald Trump.

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Donald Trump Verdict Unlikely to Survive in Federal Court—Legal Analyst

F ormer President Donald Trump 's guilty verdict is unlikely to survive in a federal appellate court, according to Fox News legal analyst Gregg Jarrett on Saturday.

On Thursday, Trump, who is the GOP presidential nominee, was found guilty on 34 counts of falsifying business records relating to a hush money payment made to adult film actress Stormy Daniels shortly before the 2016 presidential election by Trump's then-lawyer and fixer Michael Cohen in a case brought forward by Manhattan District Attorney Alvin Bragg . The prosecution argued that the hush money payment was part of a broader scheme to "promote Mr. Trump's election by unlawful means."

Daniels alleges she had a sexual encounter with Trump in 2006, which he denies. Trump has maintained his innocence, claiming the case was politically motivated against him. His legal team pledged to fight the verdict and appeal the case if necessary.

Appearing on Fox & Friends Weekend on Saturday, Jarrett, known for his pro-Trump commentary, did not have faith in a win for Trump in a New York appellate court and said, "Trump's only real relief in this case can be found in the federal courts because those judges, who are a lot smarter, actually care about the right to a fair trial."

He later added: "These due process rights are so important and they were so grievously violated, I can't see this case surviving judicial scrutiny in the federal court."

Jarrett also bashed the case saying it is "littered with reversible errors by Judge [Juan] Merchan [who presided over the trial] especially due process violations—refusing to tell the defendant what this secondary conspiracy crime is, that ignores Trump's Sixth Amendment right."

He added: "And then telling the jury, don't worry about unanimity on which of the three possible uncharged crimes that are a predicate to your verdict. I mean, that is so shocking, such a bedrock constitutional right."

The legal analyst was referring to Merchan's jury instructions. According to New York law, falsifying business records is a misdemeanor, but what brings it up to a felony is if the records were falsified in an attempt to commit another crime or to aid or conceal the commission of a crime.

Merchan told the jury: "Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were."

The judge gave jurors three different crimes to choose from: violations of the Federal Election Campaign Act (FECA), the falsification of other business records or violation of tax laws.

Jarrett added on Saturday: "But the legal theory itself was ludicrous. As you say, nobody really knows what they decided other than the verdict. An expired misdemeanor that comes to life thanks to an unidentified felony over which Alvin Bragg has no authority to enforce."

Following the verdict, Bragg said at a news conference on Thursday: "I did my job," adding, "There are many voices out there, but the only voice that matters is the voice of the jury, and the jury has spoken."

Verdict Reactions

When reached for comment on Saturday afternoon by Newsweek , Trump's spokesperson Steven Cheung referred to Trump's lawyer Todd Blanche's Thursday night interview with CNN 's Kaitlan Collins.

Reacting to the verdict, Blanche told Collins: "I think that at the end of the day, it remains true that if the word of Michael Cohen was not accepted at all, then you could not have convicted President Trump. And the jury convicted. So, at the end of the day, they looked past what we thought were fatal flaws, in Mr. Cohen's story, and his past, and they reached a guilty verdict."

When asked what Blanche would argue in an appeal, he said, in part: "We just think that because of everything around the lead-up with this trial, it made it very difficult for the jury, to evaluate the evidence, kind of independent of what they knew coming in. And we knew that."

Newsweek has also reached out to Blanche directly via email for comment.

Meanwhile, MSNBC legal analyst Lisa Rubin wrote on X, formerly Twitter , on Thursday, "Trump's allies are hitting the talking points tonight that the DA's case was a political hit job without any unifying or sound legal theory. That's untrue. Not only would anyone else have been prosecuted years ago for the underlying election conspiracy, but the theory was obvious enough that before the case was indicted, I figured it out."

When asked on MSNBC's Morning Joe on Friday what swayed the jury to convict Trump of all 34 counts with expediency, Rubin said, "I think what happened, is evidence happened. And the evidence in this case was overwhelming."

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Reporting by Andrew Goudsward; Editing by Scott Malone and Howard Goller

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