Reflections on Judging at the Intersection of Constitutional Claims and Public Policy
Kimberly J. Mueller
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DEI Under Scrutiny: Doctrinal Shifts, Litigation Risk, and Emerging Threats to Civil Rights Law After SFFA
Richard J. Grad
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For decades, private employers, nonprofits, and philanthropic institutions have implemented voluntary diversity, equity, and inclusion (DEI) programs to promote opportunity, mitigate bias, enhance organizational performance, and advance social justice. These initiatives were long understood to comply with civil rights law. But following Students for Fair Admissions v. Harvard (SFFA), that understanding is steadily under attack.
Although SFFA’s holding is confined to college admissions, the case’s rhetoric has increasingly been appropriated in a broader campaign to dismantle DEI across sectors. Executive-branch actions, advocacy groups, state attorneys general, and private litigants have invoked SFFA’s vision of colorblindness to challenge fellowships, supplier diversity efforts, philanthropic grants, and expressive association. These challenges often conflate affirmative action with all forms of DEI, blurring the line between lawful inclusion and impermissible preference by seeking to extend constitutional doctrine—developed to constrain state action—to control private-sector diversity efforts under Title VII and Section 1981. Conflicting court rulings, executive orders, regulatory ambiguity, and coordinated enforcement have deepened legal uncertainty, prompting institutions to abandon DEI efforts and chilling even race-neutral initiatives.
This Article argues that facially neutral DEI initiatives remain lawful under federal civil rights statutes and Supreme Court precedent. Efforts to extend SFFA into the private sector—and the conflation they encourage—risk destabilizing foundational principles of civil rights law, corporate governance, and expressive freedom. The Article analyzes executive orders, legislation, litigation, agency guidance, and state attorneys general campaigns to map the legal and institutional risks confronting private-sector organizations. Drawing on statutory interpretation, constitutional protections, and fiduciary governance doctrine, the Article shows how institutions can lawfully structure inclusion efforts grounded in facial neutrality, mission-driven objectives, and expressive or remedial purposes.
Ultimately, the greatest threat to private organizations’ diversity efforts is institutional retreat, not doctrinal reversal by courts. In a moment when enforcement tools are being repurposed for ideological ends, the future of DEI depends not only on legal defensibility but also on institutional conviction to uphold inclusion as both lawful and indispensable.
The Ninth Amendment and Natural Rights/Social Compact Theory: A Defense of Fundamental Unenumerated Constitutional Rights in the Wake of Dobbs
Joseph R. Guerra
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In ruling that the Due Process Clause of the Fourteenth Amendment does not protect a right to an abortion, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization relied on reasoning that casts serious doubt on the continued validity of other unenumerated constitutional rights. According to Dobbs, unenumerated rights cannot be recognized unless they are deeply rooted in this Nation’s history and traditions, and have long enjoyed legal protection. In ruling that a right to abortion failed this test, the Court asserted that its decision did not undermine other previously recognized unenumerated rights, such as rights to contraception and same-sex physical intimacy. It seems highly doubtful, however, that these rights would survive application of Dobbs’ stringent test.
Given Dobbs’ troubling implications, this Article argues that unenumerated constitutional rights are properly grounded in the Ninth Amendment, in light of the natural rights/social compact theory that animated adoption of that Amendment and the Bill of Rights. Collectively, that theory, the characteristics of the natural rights that are expressly retained in the Bill of Rights, and the broader political considerations surrounding the adoption of that measure, provide judicially manageable standards for identifying unenumerated natural rights protected by the Ninth Amendment. While these standards place meaningful constraints on judicial discretion, they do not limit the rights protected under the Ninth Amendment to only those recognized in the eighteenth century. The founding generation understood that the natural rights principles underlying the Amendment would adapt to contemporary circumstances. Application of these principles today justifies recognition of a relatively small set of natural rights that pertain to essential and universal human needs, including rights to contraception, same-sex physical intimacy, and abortion (subject to previously recognized limitations).
The Article also addresses the principal objections that have been raised to a rights-protecting reading of the Ninth Amendment—arguments that, with limited exceptions, have largely gone unanswered. It concludes by explaining why unenumerated natural rights retained under the Ninth Amendment should be enforced against the states in the same manner as expressly protected natural rights—i.e., through “incorporation” into the Due Process Clause of the Fourteenth Amendment.
The Griffin Principle: Defining and Deterring Election Contest Gamesmanship
Samuel Davis
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Through the lens of a protracted battle over a seat on the North Carolina Supreme Court in 2024, this Article considers the problem of election contest gamesmanship: the manipulation of the procedures states use to resolve post-election disputes in an effort to subvert the democratic results of an election. This Article illustrates how election contest gamesmanship problematizes basic assumptions of federal voting rights doctrines, exploiting the traditional deference afforded to the operation of state election administration procedures to evade federal judicial scrutiny and advance strictly partisan ends. The result is a unique and pernicious threat to the fair administration of elections, the constitutional rights of individual voters, and public confidence in the democratic process.
While election contest gamesmanship is not itself a new phenomenon, federal courts have, for the most part, not treated it as a distinct problem. Similarly, no prior scholarship has addressed the problem of election contest gamesmanship head on. Presently, these gaps allow losing candidates to maintain election contests that thwart the democratic functions of elections and impose significant costs on candidates, voters, and election officials. Even where litigation ultimately succeeds in preserving the results of an election, the current federal court norm of deferring to states to adjudicate election contest gamesmanship in the first instance has serious consequences for the capacity of elections to foster democratic legitimacy and stability in government. This Article proposes that federal courts adopt a new equitable doctrine—what it names, after one of the protagonists in the North Carolina Supreme Court litigation, the “Griffin principle”—that mitigates these consequences, preserves the democratic function of elections, and is consistent with the structure and normative underpinnings of existing election law doctrines.
Constitutional Litigation After Trump v. CASA
Howard M. Wasserman
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Trump v. CASA resolved a decade-old scholarly debate about whether federal courts can grant “universal” injunctions in constitutional cases—injunctions prohibiting the executive from enforcing the challenged law against all persons subject to the law, beyond the plaintiffs to the action. A 6-3 Court said federal courts could issue remedies necessary to accord “complete relief to the plaintiffs,” without the power to protect non-parties.
The various opinions in CASA offer competing visions of litigation, adjudication, and judicial decisionmaking. The case plays and will continue to play an essential role in ongoing challenges to Trump Administration policies and regulations and all constitutional litigation. This essay explores four issues of constitutional litigation and adjudication that CASA explains, undermines, alters, or strengthens. First, the Court adopted the appropriate label for these overbroad injunctions—universal; this extends the scope issue to encompass challenges to federal and state law. Second, the Court divided over competing models of the judicial role and power, with the majority settling on a form of “Supreme Court supremacy,” in which the Supreme Court (but not lower courts) establishes constitutional law for all government actors. Third, the Court identified four paths through which plaintiffs may achieve broader relief, without courts issuing universal injunctions. Finally, the Court did not engage in unwarranted partisan behavior in using this case to resolve the simmering debate over universal injunctions.